In a new published Defense Base Act (“DBA”) claim, the Benefits Review Board further clarified the zone of special danger doctrine. A widow filed a claim for death benefits after her husband was killed in Tbilisi, Georgia, while working for the employer. The decedent’s job required that he work five days per week, and that he remain on-call for emergencies. In addition to wages, the decedent received a monthly allotment for housing and utilities, as well as vouchers for a taxi service. While riding in a taxi going to the grocery store, the decedent’s vehicle was struck head-on by another car, causing his death.
Death benefits are owed under the Longshore and Harbor Workers’ Compensation Act, as extended by the DBA, when the decedent died in the “course of employment.” For Defense Base Act claims, the Supreme Court has held the “an employee may be within the course of employment, even if the injury did not occur within the space and time boundaries of work, so long as the ‘obligations or conditions of employment’ create a ‘zone of special danger’ out of which the injury arises.” An injury is covered when the injury is “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen.” But, the zone does have boundaries, and workers might stray outside of the zone when the worker becomes “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.”
Some of the more familiar zone of special danger cases include recreational events like drowning while swimming in a lake, see O’Keefe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965), but not the application of a cosmetic chemical peel, see R.F. [Fear] v. CSA, Ltd., 43 BRBS 139 (2009).
Grocery shopping, the Board determined, is a foreseeable risk that falls within the zone of special danger. The Board rejected employer’s argument that “only recreational/social activities or local risks can give rise to application of the ‘zone of special danger’ doctrine” because application of the doctrine is a question of foreseeability and reasonableness. As for grocery shopping, the Board stated:
Indeed, it is entirely foreseeable that an employee will need to purchase groceries, and, given the taxi vouchers provided by employer, also entirely foreseeable that decedent would take a taxi to the grocery store. The fact accident, thus, also was a foreseeable, “if not foreseen,” consequence of riding in a taxi in a place where the dangers of automobile travel were anticipated by employer. Although employer attempted to mitigate the danger, employer has not cited any circumstances that could warrant a legal conclusion that decedent’s activity was not rooted in the conditions of his employment or was “thoroughly disconnected” from the service of employer.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)