Yesterday, I had an interesting e-mail exchange with a blog subscriber who wanted my take on the compensability of injuries resulting from Acts of God, specifically, tornadoes and and lightning strikes. Her question had been prompted by the fact that a number of severe storms had passed through her area in recent days. Several tornados had destroyed property and caused serious injury. She specifically wondered about those whose jobs required them to be out and among the elements. How do the various jurisdictions treat these sorts of injuries?
As with virtually any injury, the initial issue for an injured employee is to establish that his or her injury falls within the coverage formula. That is to say the employee must show that the injury arose out of and in the course of the employment (sometimes called the “AOE/COE” issue).
Two Tests, Not Just One
As I noted yesterday, in my discussion of the recent North Carolina case involving the worker who sustained a stroke during working hours, the AOE/COE formula involves two, not one test. That is to say the injured employee must not only show that the injury occurred during the “time and place” of the employment; the injury must also spring from a risk that is associated with that employment. For example, in the North Carolina case, the employee sustained the stroke during normal working hours. He had no difficulty, therefore, with the “course of employment” issue. Yet his stroke did not “arise from the employment.”
Arising out of the Employment Question
In lightning and tornado cases, resolution of the compensability issue generally depends upon the claimant’s success in establishing the “AOE”—arising out of the employment—component of the test. As Dr. Larson wrote some time ago:
All courts agree that injury due to lightning, windstorms, earthquake, freezing, sunstroke, and exposure to contagious diseases arises out of the employment if the employment increases the risk of this kind of harm [Larson, Ch. 5 Synopsis].
Establishing such a causal connection is more straightforward with lightning strike injuries than those that are associated with tornadoes. Let me elaborate. In most lightning cases, the issue is one of physics rather than of law, namely, whether the work conditions enhanced the probability of injury from lightning. Most successful cases involve some factor that increases the employee’s risk, such as:
- Height above the surrounding area,
- Nearness to trees or tall structures,
- Nearness to metallic objects likely to attract lightning, or
- Presence of wetness and other conditions facilitating transmission of lightning [see Larson, § 5.01].
Difficulty of Proving Increased Risk in Tornado Cases
Tornadoes, windstorms, hurricanes, and earthquakes resemble lightning in that they fall blindly and violently upon the employed and unemployed without discrimination, but they differ a little from lightning in being less localized. That is, a hurricane or tornado may level everything in its path, so that the employee might be no safer in his or her own bed than on the job, while lightning selects a particular spot which can then be compared with safer places where the employee might otherwise have been. For this reason, when injury has resulted from one of what Dr. Larson called “even-handed dispensers of disaster,” it has often proved to be more difficult than in lightning cases to make a case of increased risk [see Larson, § 5.02].
Location as Increased Tornado Risk
In some instances, it has been possible to argue successfully, as in lightning cases, that there was something about the location that increased the risk. For example, as shown in early cases, the element of extra risk has been found where a schoolhouse was unusually exposed on a high plateau [Scott County School Bd. v. Carter, 156 Va. 815, 159 S.E. 115 (1931)], where the presence of trees increased the dangerous effect of a windstorm [Merrill v. Penasco Lumber Co., 27 N.M. 632, 204 P. 72 (1922)], and where the force of the wind was great because of nearness to the ocean and to a high building [Arrington v. Goldstein, 23 N.J. Super. 103, 92 A.2d 630 (App. Div. 1952)].
Insecurity of Structure as Increased Risk
The increased risk may also take the form of the relative flimsiness or insecurity of a structure whose vulnerability contributed to the injury, as when, for example, the roof was blown off a temporary building. In one case, relatively increased risk was apparently found, not in the temporary character of the building, but in its age and comparative height [Inland Steel Co. v. Industrial Comm’n, 41 Ill. 2d 70, 241 N.E.2d 450 (1968)].
Forced Exposure as Increased Risk
Apart from some special locality risk, the requirement of increased risk has been frequently satisfied in tornado and windstorm cases by a showing that, unlike a member of the general public, who could remain sheltered indoors, the claimant—due to his or her work duties—had to expose himself or herself to the force of the wind. Thus the specific instance mentioned to me by the blog subscriber—the news reporter who job entailed “chasing the storm”—would find it much easier to establish an increased risk than a typical office worker.
Issue Vary a Bit from State to State
Of course, I’ve tried to provide an overview of the issues here. As with any workers’ compensation issue, there may be some interesting state variations. I’d love to hear from you if you have something interesting to offer. Contact me at email@example.com.