Opinion
49607 Record No. 930865
June 10, 1994
Present: All the Justices
A farm employee bitten by a co-worker's dog did not sustain an injury by accident that arose out of her employment and therefore the trial court's ruling that plaintiff's action at law is jurisdictionally barred by the Virginia Workers' Compensation Act is reversed.
Workers' Compensation Act — Jurisdiction — Exclusive Remedy — Negligence — Injury By Accident — Arising out of Employment — Causal Connection
The plaintiff worker on a horse farm was bitten and badly injured by a coworker's dog. She filed an action at law against the defendant farm owners and the dog owner seeking damages. The defendants filed pleas in bar, claiming that the plaintiff's exclusive remedy was under the Workers' Compensation Act. The trial court sustained the pleas and dismissed the plaintiff's action. She appeals.
1. Pursuant to Code Sec. 65.2-101, an employee must prove that she was injured by an accident arising out of and in the course of her employment in order to be compensated under the Act.
2. Virginia recognizes the "actual risk" test, which requires that the employment subject the employee to a particular danger that brought about the injury and, consequently, an accident arises out the employment when it is apparent that a causal connection exists between the conditions of the work and the resulting injury.
3. The plaintiff did not sustain an injury by accident that arose out of her employment because nothing about the nature of her work reasonably could have exposed her to the danger of being bitten by a co-worker's pet dog and her action is not barred by the Act.
Appeal from a judgment of the Circuit Court of Augusta County. Hon. Thomas H. Wood, judge presiding.
Reversed and remanded.
Elizabeth P. Murtagh (Haine Murtagh, on brief), for appellant.
Cathleen P. Welsh (M. Bruce Wallinger; Wharton, Aldhizer Weaver, on brief), for appellees Phillip D. Case and Margot Case.
No brief or argument on behalf of appellee Christine Post.
The issue in this appeal is whether an action at law is jurisdictionally barred by the Virginia Workers' Compensation Act, Code Sec. 65.2-100 et seq. (the Act).
Plaintiff, Sharon W. Lipsey, filed an action at law against the defendants, Phillip D. and Margot Case (the Cases) and Christine Post. Lipsey sought damages for injuries she sustained that allegedly were caused by the defendants' negligence. The defendants filed pleas in bar, claiming that Lipsey's exclusive remedy was under the Act. The trial court sustained the pleas and dismissed Lipsey's action, and we awarded Lipsey an appeal.
No testimonial evidence was presented on the pleas. Therefore, the facts are taken from the amended motion for judgment and two exhibits filed by Lipsey.
The Cases placed an advertisement in a national horse publication offering a working student position on their Augusta County farm. Under the working student program, a person would learn horsemanship with a unique breed of horse, the Akhal-Teke.
Lipsey contacted the Cases and was admitted into the program. On September 3, 1991, she moved to the farm and started in the program.
As a working student, Lipsey paid no tuition and received no wages. Instead, she worked on the farm six to seven hours per day, six days per week, for an average of 40 hours per week. In return, Lipsey received daily instruction and guidance in the farm operation, three to four riding/training lessons per week, and board for one horse, all at no cost to Lipsey. She also was provided living facilities on the farm, which she shared with two other working students, one of whom was the defendant, Post.
Numerous farm and domesticated animals lived on the farm. One of the domesticated animals was a Doberman pinscher owned by Post. Post's dog lived in the house with the three working students and was allowed to roam freely about the house and farm.
On September 8, 1991, while Lipsey was at the house on a lunch break, Post's dog attacked her, biting her face and causing severe injuries. Unbeknownst to Lipsey, the dog previously had bitten another person. The defendants knew of this incident and also knew that the dog had a violent disposition and was prone to biting. The defendants, however, never warned Lipsey about the dog.
Pursuant to Code Sec. 65.2-101, an employee, in order to be compensated under the Act, must prove that he was injured by an accident "arising out of and in the course of [his] employment." The trial court ruled that Lipsey was the Cases' employee and that she sustained an injury by an accident that arose out of and in the course of her employment. We will assume, without deciding, that Lipsey was an employee and that the accident occurred in the course of her employment. Thus, we will focus on whether Lipsey's injury arose out of her employment.
The term "course of the employment" refers to the time, place, and circumstances under which the injury occurred. County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989); Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938).
Virginia recognizes the "actual risk" test which requires that the employment subject the employee to the particular danger that brought about his or her injury. Olsten v. Leftwich, 230 Va. 317, 319, 336 S.E.2d 893, 894 (1985); accord County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75-76 (1989). Consequently, an accident arises out of the employment when it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury. Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972); Brown v. Reed, 209 Va. 562, 564, 165 S.E.2d 394, 397 (1969); accord RT Investments v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 (1984).
Applying these principles to the facts in the present case, we conclude that Lipsey did not sustain an injury by an accident that arose out of her employment. Nothing about the nature or character of her work, i.e., the care and training of horses, reasonably could have exposed or subjected her to the danger of being bitten by a co-worker's pet dog. It simply is not apparent to a rational mind, in the circumstances of this case, that a causal connection exists between the conditions of Lipsey's required work and her injury. Therefore, Lipsey's action is not barred by the Act.
Accordingly, we will reverse the trial court's judgment and remand the case for further proceedings.
Reversed and remanded.