Opinion
CASE NO. 289 CRD-4-83
MAY 21, 1987
The claimant was represented at trial by Robert J. Nicola, Esq., and on appeal by Howard T. Owens, Jr., Esq., both of Owens Schine.
The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the December 19, 1983 Finding and Dismissal of the Fourth District Commissioner was heard April 26, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew P. Denuzze.
FINDING AND AWARD
1-18. Paragraph 1 through 18 of the Fourth District Commissioner's Finding and Award are affirmed and made paragraphs 1 through 18 of this Division's Finding and Award.
19. It is found that decedent's death arose out of her employment.
20. The respondent-employer is therefore obligated to pay benefits to the claimant dependent child herein.
THE MATTER IS REMANDED to the Fourth District for further proceedings in conformity herewith.
OPINION
By agreement the parties here stipulated to the facts and submitted the matter for decision to the Fourth District Commissioner. He issued a Finding and Dismissal of Claim December 19, 1983 concluding that the death of claimant's mother did not arise out of her employment with the respondent bank. The decedent Gail Rogers had been living with her assailant Timothy Fair in Bridgeport on North Bishop Avenue. She had a son, Timothy Fair Jr., the claimant dependent here, born April 25, 1980. During the following summer Mr. Fair became interested in another woman, and the relationship between Fair and Rogers deteriorated.
Matters reached a crisis stage in the Christmas season and the decedent arranged to leave their shared apartment to resume living with her mother in Father Panik Village in Bridgeport. On December 29, 1980 she received harassing phone calls from Fair while at work at the bank. That morning he came personally to the bank and threatened her. His behavior was such that he was escorted from the premises by bank security personnel. As a consequence of these actions Ms. Rogers became concerned for her personal safety. She communicated that concern to her supervisor and fellow employees and to the Bridgeport police as well. Her fears were such that she determined her safest course to be termination of employment with People's Savings Bank. Therefore, with the supervisor's knowledge she went to the bank Personnel Office to see Ms. Annie Robinson for her exit interview.
At this point Fair re-entered the bank premises and asked the supervisor where Rogers was. Without notification to Security or to Personnel the supervisor directed him to her the meantime, the resignation process having been completed, Ms. Robinson had caused a co-employee, Catrina Peters, to be called in to the Personnel Office to assist Rogers in getting home. Also Ms. Robinson attempted twice to Security concerning the situation regarding Rogers and Fair. At approximately 1:15 p.m. Fair entered that office demanding to see Rogers and ordered Catrina Peters to leave. She refused and attempted to telephone for assistance, but he produced a .38 caliber revolver from his clothing and shot Rogers in the head causing her death nine days later on January 7, 1980.
"When the animosity or dispute that culminates in an assault is imported into the employment from claimant's domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment. . ." This sentence from the Larson treatise expresses the conventional wisdom regarding the assault involved in the instant matter, and the trial Commissioner faithfully followed the rule there expressed in denying the claim. However, the majority rule as formulated by Larson does contemplate exceptions, and the appellants target their appeal on those exceptions. "Assaults for private reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor."
It is clear that if the decedent herein were working as a teller in the bank area accessible to the general public and her assailant entered that public area to shoot her as a result of their private quarrel, then the majority rule would hold the injury not to arise out of the employment. But the victim here was not in such a public place. Instead, on December 29, 1980 she was in an inner area to which customers were usually denied easy access unless there on business presumably with the permission of some responsible bank employee. Possibly, although the parties' stipulations are silent in that regard, members of employees' families may have access to those inner areas. However, even if we assume the latter statement to be true, Fair at 1:15 p.m. December 29, 1980 was no longer just an employee's family member. In effect he had been declared persona non grata in the bank by the security personnel who had ejected him earlier. The ejectment or the reasons for it had been made known to the bank personnel and especially to the victim's supervisor. That supervisor knew that the victim had gone to personnel to effectuate her resignation from bank employment precisely because of her fear of Fair and his coming to the bank that morning to menace her. Nonetheless, that same supervisor revealed the victim's location inside the bank in effect granting Fair access to her and placing her in a position of peril.
We need to consider also that a bank is no ordinary business entity. Its raison d'etre is security; security for depositors' deposits, confidentiality for customers' financial transactions and protection of patrons' privacy. All of these are the warp and woof of a banking enterprise. It is in that context that the supervisor's omission to call security and his act in directing Fair to the victim must be judged. Connecticut courts have often considered instances of assaults upon employees in the workplace:
"The injury to the plaintiff was made likely because of the conditions under which his employer's business was carried on and the result should have been in the contemplation of the employer."'
Jacquemin v. Turner Seymour Mfg. Co., 92 Conn. 382, 385-386 (1918), Mascika v. Conn. Tool and Engineering Co., 109 Conn. 473, 481 (1929).
"Where an employer has knowledge, actual or constructive, of the conditions under which the employment is actually being carried on and permits them to continue, they become conditions of the employment."
Stulginski v. Waterbury Rolling Mills, 124 Conn. 355, 361 (1938).
"The conditions of employment are not confined to those which the employer creates."
Id. at 360.
"The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not be some other agency, or there can be no recovery." (citation omitted).
Id. at 361-362.
"The placing of the pistol out of the sight of the curious boy was within the power of the employer. By his failure to exercise such control, the pistol in the place in which Cote found it became one of the conditions under which the watchman was required to work. . . . The injury was a consequence of the condition, and hence resulted from a risk of the employment, and arose out of it."
Marchiatello v. Lynch Realty Co., 94 Conn. 260 (1919).
As discussed in our factual narrative, the acts and the omissions of the employer's agent, the supervisor, actually placed Rogers in the zone of danger. For workers' compensation purposes it is not necessary to pursue all the tort law analogies which that fact suggests. However, Larson's positional risk doctrine demonstrates a further basis for compensability deriving from the zone of danger argument. But for the employment condition created by the supervisor's pointing the way for the assailant to accomplish his mission, there would not have been the death for which compensation is here being sought. And it was not only the supervisor's participation in the events which created the employment position resulting in decedent's death. The bank's exit interview procedure delayed the victim's departure after she had concluded as a result of Fair's threatening acts that for her the employer's premises had become unsafe. The bank was aware of her fears, as evidenced by Ms. Robinson's attempting twice to call Security even before it was known that Fair had reappeared. Had the conditions of employment not necessitated such a delay in departure, the decedent probably would not have been in the bank to be shot. Thus, there would have been no employment-related positional risk.
Both the claimant-appellant and the respondents-appellees have cited decisions from other jurisdictions. The respondents rely on Epperson v. Industrial Commissioner, 26 Ariz. App. 467, 549 P.2d 247 (1976) and claimant on Berresi v. Ryan, 242 App. Div. 279, 275 N.Y.S. 370 (1934) and Carter v. Penney Tire and Recapping Co., 261 S.C. 341, 200 S.E.2d 64 (1973). The Berresi and Carter facts more closely parallel the situation in the instant case. In Epperson, the Arizona court distinguished Carter on the basis of no scienter, i.e. the Epperson employer had not been aware of the danger of assault to the victim, while the Carter employer had been made aware of that danger. Paragraphs 8 and 12 of the Finding below, affirmed and incorporated into our own Finding, clearly demonstrate that here the bank had such scienter.
Therefore, we hold the claim to be compensable. The appeal is sustained and the decision of the Commissioner below is reversed. The matter is remanded to the Fourth District for further proceedings in accordance herewith.
Commissioners Robin Waller and Andrew P. Denuzze concur.
1 Larson, Workmen's Compensation Law, Sec. 11.21, p. 3-245.
Ibid. Sec. 11.00, p. 3-161.
1 Larson, Workmen's Compensation Law, Sec. 11-16(c), p. 3-243.