Summary
In Nippert v. ShinnFarm Constr. Co., supra, the plaintiff was injured when the construction site at which he was employed was struck by a tornado.
Summary of this case from Logsdon v. ISCO Co.Opinion
No. 85-682.
Filed June 20, 1986.
Workers' Compensation. When one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his employment, that accident is one "arising out of" the employment of the person so injured.
Appeal from the Nebraska Workers' Compensation Court. Reversed.
T. J. Hallinan of Law Offices of Cobb, Hallinan Lefler, P.C., for appellant.
Dennis R. Riekenberg of Cassem, Tierney, Adams, Gotch Douglas, for appellee.
KRIVOSHA, C.J., BOSLAUGH, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
Dennis W. Nippert appeals the dismissal of a suit filed against his employer, Shinn Farm Construction Company, in the Nebraska Workers' Compensation Court. Nippert seeks compensation for total temporary disability and permanent partial disability suffered as a result of injuries sustained in a tornado on October 18, 1979.
A single judge of the compensation court found, under the "act of nature" doctrine, that the accident which caused Nippert's injury did not "arise out of" his employment as required for recovery under the Workers' Compensation Act, Neb. Rev. Stat. § 48-101 (Reissue 1984). On rehearing, a three-judge panel affirmed the order of dismissal. We reverse.
Nippert was employed by Shinn Farm Construction Company on October 18, 1979. On this date he and other workers were erecting a hog shed on a farm near Wamego, Kansas. The workers were inside the nearly completed building, preparing to leave the jobsite for the day, when a tornado approached the area at approximately 6 p.m. The weather service had issued tornado warnings, but the construction workers had received no such information. The wind force inside the building was so strong that the workers were unable to move, a phenomenon apparently resulting from the fact that the doors on the southeast and northeast corners of the building had not yet been installed.
At some point the walls of the 40- by 60-foot building collapsed, and the roof fell to the ground intact. Miraculously, no one was injured when the building fell. The wind then subsided for a few moments, but about a minute later the tornado picked Nippert up and hurled him to the ground some 30 feet away. Nippert's leg was fractured, and he later developed back problems.
The storm system that hit the jobsite injured 11 people and caused extensive property damage throughout northeast Kansas. On the farm where the company was erecting the hog shed, Roger Shinn observed extensive damage to two silos, the destruction of a large machine shed and barn, and damaged machinery and equipment, including a truck which was thrown into a feedlot. The storm had also destroyed or damaged buildings on two adjacent farms. The tornado's path was 1/2 to 1 1/2 miles wide, and it traveled approximately 58 miles.
Nippert was treated for his injuries, but he was unable to return to work until November 1980. Shinn Farm Construction Company voluntarily paid Nippert's medical expenses as well as temporary total disability benefits and permanent partial disability benefits based on a 20-percent permanent disability of his left leg. It was not until Nippert filed a petition seeking additional benefits that the company raised a question of liability.
Based upon the increased risk doctrine, the Nebraska Workers' Compensation Court rejected Nippert's claim for benefits. We recently reviewed this doctrine in McGinn v. Douglas County Social Services Admin., 211 Neb. 72, 317 N.W.2d 764 (1982). In a 4-to-3 opinion, the majority held that an employee is entitled to benefits under the provisions of the Nebraska Workers' Compensation Act, 48-101, only when an accident arises both out of and in the course of employment: "The term `arising out of' describes the accident and its origin, cause, and character, i.e., whether it resulted from the risks arising from within the scope or sphere of the employee's job." 211 Neb. at 75, 317 N.W.2d at 766-67. An injury caused by the elements arises out of employment only if the employee is exposed to a different hazard than others generally in the area where the injury occurred. McGinn, supra.
Nippert's theory on appeal is twofold. First, he asks this court to overrule the increased risk test and adopt the positional risk test. Second, if the court continues to apply the increased risk test, Nippert asks for reversal on the grounds that the dismissal was against the great weight of evidence that he was exposed to an increased risk of injury in his work environment and, therefore, that his injuries arose out of his employment.
We agree with Nippert's first theory, and to the extent that McGinn and earlier cases are inconsistent with it, they are overruled. In McGinn we were asked to adopt the positional risk test, the rationale being that an accident arises out of employment when an employee is where he is required to be at the time the act of nature occurs and causes the employee's injury. We rejected the argument and affirmed the increased risk doctrine as the law in this state. The increased risk doctrine requires an employee to demonstrate that his employment duties expose him to a greater risk or hazard than that to which the general public in the area is exposed. Crow v. The Americana Crop Hail Pool, Inc., 176 Neb. 260, 125 N.W.2d 691 (1964).
After careful consideration we have concluded that the better rule is the positional risk test espoused by the dissent in McGinn. Under this theory an employee's injuries are compensable as long as his employment duties put him in a position that he might not otherwise be in which exposes him to a risk, even though the risk is not greater than that of the general public. In 1 A. Larson, The Law of Workmen's Compensation 8.12 at 3-23 (1985), the positional risk test is stated as follows:
"[W]hen one in the course of his employment is reasonably required to be at a particular place at a particular time and there meets with an accident, although one which any other person then and there present would have met with irrespective of his employment, that accident is one `arising out of' the employment of the person so injured."
The record shows that Nippert's employment required him to be in the area where the tornado struck. The record also reflects that the storm caused Nippert's injuries. The judgment of the Workers' Compensation Court is reversed.
REVERSED.
WHITE, J., participating on briefs.