Does the Defense Base Act’s zone of special danger doctrine extend to grocery shopping? That is a question the First Circuit will have to answer in Battelle Memorial Institute v. DiCecca, where a civilian contractor was killed while traveling in an employer-provided taxi to a grocery store in Tbilisi, Georgia.
Grocery Shopping Falls Within the Zone of Special Danger?
The First Circuit appeal stems from a Benefits Review Board Decision and Order in DiCecca v. Battelle Memorial Institute. The DiCecca claim stems from the death of a civilian contractor working in Tbilisi, Georgia. The contractor worked five days per week, but remained on-call for emergencies. In addition to wages, the contractor received a monthly allowance for housing and utilities, as well as vouchers for an employer-approved taxi service. On May 16, 2012, the contractor was killed when traveling to a grocery store, when his taxi was struck head-on by another car. The employee chose to go to a grocery store roughly 8 miles away from his home because the only closer grocery store had questionable sanitary conditions–such as bugs crawling over meat.
The administrative law judge awarded death benefits to the DiCecca widow, and the employer appealed the ALJ’s decision to the Benefits Review Board. The employer argued that zone of special danger cases fall into one of only two categories: “(1) where the injury occurred during/following a reasonable recreational or social activity; and (2) where the injury occurred in a locale that presented living conditions giving rise to an increased risk of the injury sustained by the claimant.” Grocery shopping, argued the employer, does not fit in either category. Thus, the zone of special danger test should not apply.
The Board disagreed and affirmed the award of death benefits. Grocery shopping was a foreseeable risk that fell within the zone of special danger in this case. Further, the application of the zone of special danger 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 would warrant a legal conclusion that decedent’s activity was not rooted in the conditions of his employment or was “thoroughly disconnected” from the services of employer.
The First Circuit Briefs and the Scope of the Zone of Special Danger:
Aggrieved by the Board’s decision, the employer appealed. In its brief, the employer argued that the Defense Base Act and the “zone of special danger” doctrine is not as wide open as suggested by the administrative law judge and the Board. The employer summarized its argument as follows:
The BRB erred by affirming the ALJ’s award of DBA death benefits in this case. Although the “zone of special danger” doctrine broadens the concept of work-relatedness to include coverage for certain off-duty injuries, the DBA still requires a nexus between the off-duty activity that gave rise to the injury and the employee’s employment. The DBA claimant must show that the employment created a “zone of special danger” and that the injury arose out of that particular “zone of special danger” out of which the injury arose, and it therefore was error for the ALJ to award death benefits and for the BRB to affirm the award of death benefits.
The employer also argued that zone of special danger DBA cases mostly fall in one of two categories. The first category involves injuries that occur “during a reasonable recreational or social activity in an isolated locate where recreational and social opportunities are limited.” The recreational activity argument focuses in part on the isolated location of the employee’s job, suggesting that the lack of available activities makes the compensable.
The second category of zone of special danger DBA cases involve injuries occurring “in a locale that presented conditions giving rise to an increased risk of the injury sustained by the employee.” The injuries occurred off-duty, but nonetheless related to some employment-related “set of circumstances . . . which increase the risk of physical injury or disability to a putative claimant.”
The employer argued that because the decedent’s grocery shopping injury did not fall within one of the two categories established by the employer, then the decedent’s injury was not covered. The decedent was shopping for groceries when he was killed–an activity that does not conform to the employer’s definition of “recreational.” Further, the decedent was not working in an isolated locale, but instead in Tbilisi, a city with over one million people.
The widow’s response to the employer’s arguments was that the event in which the decedent was engaged at the time of his death–grocery shopping in a foreign country while using an employer-provided taxi–clearly fits within the zone of special danger doctrine. The widow’s argument summary reads:
The BRB correctly affirmed the ALJ’s award of death benefits under the Defense Base Act . . . to Mr. DiCecca’s widow finding that his death was compensable under the “zone of special danger” doctrine and supported by the substantial evidence on the record. The zone of special danger doctrine was created in O’Leary v. Brown-Pacific-Maxon, Inc. . . . finding all that is necessary for a death to be covered under the Act is that the obligations or conditions of employment create the ‘zone of special danger’ out of which the injury arose. The activity which caused the employee’s death must be related to the conditions created by his overseas employment. In the present case, the conditions of Gerald DiCecca’s overseas employment required that he use an Employer-provided and paid for taxi cab to go grocery shopping. his death occurred while on a shopping trip in a cab provided by the Employer which was a necessary part of the conditions created by his employment. The facts of this case fall squarely within the definition and intent of the doctrine of the zone of special danger.
Only in cases where the employee’s activity giving rise to the injury or death is so thoroughly disconnected from work that it is unreasonable for his injuries to be covered does it fall outside the zone of special danger. In the present case, Mr. DiCecca’s activity [of] going grocery shopping in an employee-furnished taxicab is not at all thoroughly disconnected form his work, but is in fact related to his living and working conditions created by his job, and therefore, the BRB’s decision correctly affirmed the ALJ’s application of the zone of special danger doctrine.
Immediately out of the argument gate, the widow attacked the two-category distinction created by employer for zone of special danger DBA cases. The distinction was meritless, flying in the face of case law and precedent. The focus of the zone of special danger is not limited to recreation or increased risk. Although there are numerous recreation cases, these cases do not define the zone of special danger doctrine. In fact, the recreation cases merely instruct as to the “outer limits” of the zone.
The Director, Office of Workers’ Compensation Programs also filed a brief as the federal respondent. Here, the Director is aligned with the widow, agreeing that the zone of special danger applies. The contractor’s death is covered by the Defense Base Act “because the activity that led to his death was reasonable and foreseeable, and arose from the conditions of his employment.” Taxi vouchers were provided to employees like the decedent to use for any purpose, including grocery shopping. Because employees must eat, it is entirely foreseeable that the decedent would have used the taxi vouchers to pay for a trip to the grocery store. Moreover, considering the ubiquity of motor vehicle accidents as a “fact of modern life,” it was also foreseeable that a traffic accident could have occurred while decedent worked in Tbilisi. As such, Defense Base Act coverage is owed.
Oral Argument in Battelle Memorial Institute v. DiCecca:
On March 3, 2015, the parties participated in oral argument before the First Circuit (pictured above). This link will take you to audio from the argument.
The employer framed the issue like this: “Under what circumstances is an off-duty injury a compensable injury under the Defense Base Act.” Immediately after stating the issue, the First Circuit panel–which included retired Supreme Court Justice David Souter sitting by designation–peppered the employer with questions about the origin of its two-category approach to zone of special danger cases. The panel didn’t understand where the employer found those categories in the law. The employer’s response was a bit of a back pedal, stating that it doesn’t think that the law limits the application of the zone of special danger doctrine to those two categories but that the vast majority of cases fall into those two categories. The zone of special danger doctrine has been consistently applied in recreation cases because recreation benefits the employer. Yet, as noted by the court, “The law is very clear that the activity that led to the injury does not have to be for the benefit of the employer.” The employer agreed that was true, but it limited the truth of the statement to the category of recreational or social opportunities. In response, the court stated that the employer was taking the rationale for a particular case (e.g., a recreation case) and making it an all-encompassing requirement, which seemed to be a logical fallacy. Again, there was back pedaling, with the employer stating that there doesn’t have to be recreational activities, but there still has to be a connection between the employment conditions and the injury. A recreational activity is not an absolute requirement; but an injury arising out of conditions created by the employment is a requirement.
Justice Souter asked why the social theory lodged by the employer did not apply here. It is in the employer’s interest that the employee eat. Without a supermarket around the corner, the employee had to go to a grocery store further away. Why isn’t the effort put into traveling to a grocery store similar to the effort that a contractor in another case would put into a recreational activity? The employer responded that, in the recreation cases, the employee had worked in a remote location and had to seek out opportunities that would not have been available at home. Further, the grocery store at issue in this case was only 8 miles away, which is not terribly different than conditions that exist in the United States. The act of going to the grocery store was a personal choice that had nothing to do with his employment.
Further, grocery shopping is too mundane a task to include within the zone of special danger. Yet, in this case the decedent was traveling in a taxi to a grocery store further away because of the unsanitary conditions at a closer grocery store. Wouldn’t one of the condition of the employment be that the employee live and work in a place requiring further travel than normal–in a taxi no less–in order to get satisfactory groceries? No, answered employer. The court did not seem convinced, especially where the reason for the longer trip to the grocery store was due to–and I sincerely hope this phrase makes its way into the First Circuit’s opinion–the “sanitary remoteness of the country he was in.”
Agency deference also came up during the employer’s argument. Here, the Director determined that the conditions of the decedent’s employment weighed in favor of coverage. The employer disagreed with how the Director saw the facts, and it would not give any deference to the Director.
The widow’s argument caused the court to ask, “What is the special danger here?” The evidence cited by the widow was that the drivers in Georgia were dangerous–ignoring the rules of the road. But are those types of factual findings necessary to support the application of the zone of special danger? The widow doesn’t think so. There were conditions of employment in this case that required a 20 minute ride in an employer-provided taxi to a supermarket where the decedent could obtain fresh groceries. And even though there was a small market within walking distance of the decedent’s apartment, the food there was dubious.
The widow also drew attention to the fact that the decedent received danger pay for his employment. By paying danger pay, argued the widow, the employer was essentially admitting the dangerous living conditions of the decedent’s employment.
The First Circuit still had concerns. Should any car accident suffered by a similarly situated employee fall within the zone of special danger? Or, should the DBA have a shopping market inclusion? Is the key to this case that the employee had to go farther to shop for adequate food?
The Director’s argument was that the employer’s premise has never been the law. The employer’s premise is that there has to be a direct relationship between the injury and the employment for the zone of special danger doctrine to apply. But the First Circuit had a different appreciation of the employer’s argument: the employer argued that there has to be a “special danger” associated with the injury, not merely an injury during the course of everyday activities.
The First Circuit’s questions to the Director suggested that it doubted coverage should be extended to every fall that a contractor experienced overseas. The Director responded that the “special” nature of the injury in this case was that it arose out of the conditions and obligations of employment. Those conditions included:
- Having to work in Tbilisi, Georgia.
- Having to live in a local residence and go out to get food on their own.
- Receiving taxi vouchers for any task, including grocery shopping.
But what is the zone of special danger’s boundary? That seemed to be the biggest problem for the First Circuit. Without a boundary, the zone of special danger is too wide open. For the Director, the boundary seemed to be whether the employee had options–living options, eating options, etc.–or whether the employee was confined to certain employment conditions.
So, who is right? Before we get to that, let’s take a look at the history of the zone of special danger doctrine.
The Supreme Court and the Zone of Special Danger:
In O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951), John Valak was waiting for a bus at a recreational facility sponsored and made available by the employer. The facility sat near a water channel “so dangerous for swimmers that its use was forbidden and signs to that effect erected.” Valak saw or heard two men signaling for help on the reefs beyond the channel, and he sprang to action. But, while attempting to swim the dangerous channel, he drown. The decedent’s dependent mother filed a claim for death benefits.
The Supreme Court resolved the dispute about death benefits in favor of the decedent’s mother. In so doing, the Court warned against an overly restrictive interpretation of the Act, and addressed the broad test of recovery in light of the zone of special danger:
The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose. A reasonable rescued attempt, like pursuit in aid of an officer making an arrest, may be ‘one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.’ This is not to say that there are not cases ‘where an employee even with the laudable purpose of helping another might go so far from his employment and become 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.’ We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.
See O’Leary, 340 U.S. at 506-07 (internal citations omitted) (emphasis added).
The Supreme Court revisited the O’Leary test in O’Keeffe v. Smith, Hinchman and Grylls Associates, Inc., 380 U.S. 359 (1965). O’Keeffe also involved a drowning, with the decedent having drowned while boating on a South Korean lake. The decedent, who had been hired by the employer in the United States and transported to South Korea, worked there for two years. The employer paid the employee’s rent and even provided a daily per diem expense to cover “the necessary living expenditures in the Korean economy.” The decedent often worked on weekends, and the employer considered the decedent on the clock—so to speak—every day that he worked outside of the United States.
A dispute regarding death benefits arose, but the Supreme Court ultimately upheld the original award of death benefits. In so doing, the Court relied heavily on the conditions of the decedent’s employment:
The decedent was hired to work in the exacting and unconventional conditions of Korea. His transportation over and back was to be at the employer’s expense, and while there he was considered to be working on a 365-day-per-year basis, subject to call at the job site at any time, and quite often he worked Saturdays and Sundays and at other times outside the working day. The employer considered decedent and all other employees at this hazardous overseas base to be “in the course of regular occupation from the time they leave the United States until their return.” Finally, the employer provided neither housing nor recreational activities for its employees, but expected them to live, while necessarily in the country to perform its work, under the exacting and dangerous conditions of Korea. The employer paid decedent’s rent and provided him with a per diem expense allowance for each day of the year, including weekends and holidays, to cover the necessary living expenses in the Korean economy. The accident here occurred on an outing for a short period of time on a lake located only 30 miles from the employer’s job site. In the words of the District Court, “It was reasonable to conclude that recreational activities contributed to a higher efficiency of the employer’s work and that when conducted in the restricted area of employment, on a work day, so to speak, and in a manner not prohibited by the employer, such activity was an incident of the employment.”
See O’Keeffe, 380 U.S. at 363-64.
The Supreme Court’s final statement regarding the zone of special danger is in Gondeck v. Pan Am. World Airways, Inc., 382 U.S. 25 (1965). Gondeck , which is a brief per curiam decision, succinctly summarized the Court’s O’Keeffe opinion:
In O’Keeffe we made clear that the determinations of the Deputy Commissioner are subject only to limited judicial review, and we reaffirmed the Brown-Pacific-Maxon holding that the Deputy Commissioner need not find a causal relation between the nature of the victim’s employment and the accident, nor that the victim was engaged in activity of benefit to the employer at the time of his injury or death. No more is required than that the objections or conditions of employment create the ‘zone of special danger’ out of which the injury or death arose.
See Gondeck, 382 U.S. at 27 (emphasis added).
O’Leary, O’Keeffe, and Gondeck are simple enough opinions that can be distilled down to a few fine points, such as:
- The zone of special danger does not require a causal relation between the employment and the accident.
- The zone of special danger does not require that the victim’s injury occur when the victim was engaged in an activity that benefited the employer.
- The “obligations or conditions” of employment must create the zone of special danger.
- An inquiry into the employee’s work location, transportation arrangements, time worked per week, on-call time, housing conditions, availability of recreational activities, as well as the control exerted by the employer over the employee’s living conditions, will help define the “obligations or conditions” of employment and the scope of the zone of special danger.
- The “obligations or conditions” of employment include foreseeable risks of employment.
- Because the “obligations or conditions” of overseas employment involves unique living arrangements as a condition of the employment, the foreseeable risks of “employment” should include the foreseeable risks of living arrangements–including but not limited to recreational activities.
- Activities like recreation are good for employees and employers.
- Discretion is owed to the fact-finder.
- The zone of special danger is not an all-encompassing umbrella of coverage because an employee’s activity at the time of injury, if “so thoroughly disconnected from the service of his employer,” may preclude application of the zone and coverage under the Defense Base Act.
The Zone of Special Danger in Appellate Courts and the Benefits Review Board:
At the outset, I must note that the vast majority of zone of special danger cases are decided in favor of coverage. There are very few cases that denied coverage and refused to apply the zone of special danger. It is important, however, to have an understanding of both the approved and the denied claims.
The zone of special danger cases that affirmed an award of benefits include:
- Figueroa v. Worldwide Language Resources, Inc., BRB No. 12-0635 (2013) (unpublished). In Figueroa, the administrative law judge concluded that “claimant was working in a ”zone of special danger’ in a war zone in Afghanistan and, therefore, that conditions existed at work that could have caused his chest pains.” Essentially, working in Afghanistan, in and of itself, creased “an environment with unique risks, thus creating a zone of special danger.”
- N.R. v. Halliburton Servs., 42 Ben. Rev. Bd. Serv (MB) 56 (2008). In N.R., the employee was injured in a scuffle with military police. The employee was trying to take an unauthorized trip from Camp Eggers to Kabul, Afghanistan. Military police had to restrain the employee who resisted the police. The Benefits Review Board reversed the administrative law judge’s determination that the zone of special danger did not apply. “As the dispute leading to claimant’s injuries had its genesis in his employment, we hold, as a matter of law, that claimant’s injuries fall within the zone of special danger.”
- Kalama Services, Inc. v. Director, OWCP, 354 F.3d 1085 (9th Cir. 2004). In Kalama Services, the Ninth Circuit determined that there was a “sufficient nexus” between the employee’s injury and his employment. The employee was injured at a bar on Johnston Atoll (pictured above) when he got into a “one-sided scuffle” with two soldiers. The zone applied.
- Edmonds v. Al Salam Aircraft Co., Ltd., 2002 WL 34708065 (Ben. Rev. Bd. 2002) (unpublished). In Edmonds, the employee worked as an aircraft maintenance specialist in Saudi Arabia. The employer did not provide housing, transportation, or access to fresh food. One day, the employee was driving home from a grocery store in a car that he owned when he was hit by a vehicle. The Benefits Review Board applied the zone of special danger. (Note: Edmonds is an unpublished Board decision, but still worth mentioning here because of the fact of injury–car accident after returning home from a grocery store.)
- Ford Aerospace and Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982). In Boling, the employee began experiencing chest pains in his room. But, because of how the barracks were built, a stretcher could not be passed through the narrow construction of the barracks’ passageway. The employee had to walk to the stretcher, which was waiting outside. He made it, but he died 14 hours later due to a myocardial infarction. The Ninth Circuit affirmed the ALJ’s zone of danger application–with the “zone” constituting the “construction of the barracks.”
- Takara v. Hanson, 369 F.2d 392 (9th Cir. 1966). In Takara, the employee was injured when he was struck by a vehicle while hitchhiking on a dark highway on the island of Guam. The injury occurred while traveling home from a restaurant near the work site. Even though the Deputy Commissioner denied Defense Base Act benefits, the Ninth Circuit reversed the decision. It was too similar to the Ninth Circuit’s earlier decision in Self v. Hanson
- Pan Am. World Airways, Inc. v. O’Hearne, 335 F.2d 70 (4th Cir. 1964). In O’Hearne, the employee was injured while driving his employer’s jeep from a bar in town away from the work site. The Ninth Circuit affirmed the Deputy Commissioner’s award of Defense Base Act benefits. The injury occurred on a distant, sparsely populated island. Even though the employee was breaking traffic rules at the time of the incident–by speeding in a jeep he may have taken without permission–an award of benefits were still appropriate.
- Self v. Hanson, 305 F.2d 699 (9th Cir. 1962). In Self the employee was injured while engaging in a romantic rendezvous with a co-worker in a parked car on the island of Guam. While sitting in the parked car, the driver of an army weapons carrier lost control of his vehicle and slammed into the employee’s parked car. The Ninth Circuit determined that the employee’s injury was covered. The employee “had no life but the company’s life.”
The cases which did not extend the zone of special danger to award coverage include:
- Truczinskas v. Director, OWCP, 699 F.3d 672 (1st Cir. 2012). In Truczinskas, a widow filed a Defense Base Act claim after her husband was found inside his Saudi Arabian villa “hanging from a cross-beam with a noose around his neck.” A physician identified “asphyxiation by hanging” as the cause of death. The First Circuit held that neither suicide nor misadventure, both of which were not ruled out by the widow’s theories about the decedent’s death, were covered here. And, the First Circuit went on to state that “Neither suicide in the ordinary case . . . nor harm ‘resulting from recreational activities that are neither reasonable nor foreseeable,’ . . . fall within the scope of the zone-of-special-danger doctrine.”
- R.F. v. CSA, Ltd., 43 Ben. Rev. Bd. Serv. (MB) 139 (2009). In R.F., the employee was injured in Kuwait when as a result of a chemical peel. After he used the chemical peel, the employee worked outside. His skin turned red and became “riddled with lines.” The employee’s claim for a skin disorder, anxiety, and stress was denied. The Benefits Review Board held “that the claimant’s use of the chemical peel in this case was personal in nature and did not have its genesis in his employment, making the zone of special danger doctrine inapplicable.”
- Kirkland v. Air America, Inc., 23 Ben. Rev. Bd. Serv. (MB) 348 (1990). In Kirkland, the widow of employee sought DBA benefits following the employee’s death. The problem was that the widow had willfully participated in the felony that led to her husband’s death; she had plotted with her boyfriend and another man to rob her husband. The Benefits Review Board affirmed the ALJ’s determination that participating in murder precluded death benefits.
- Gillespie v. General Elec. Co., 21 Ben. Rev. Bd. Serv. (MB) 56 (1988). In Gillespie, death benefits were denied because the employee had died while engaging in autoerotic asphyxiation. The activity that caused his death, as well as the employee’s conduct, was so thoroughly disconnected from the service of the employer that the zone of special danger did not apply–despite the decedent’s loneliness.
These are not the only zone of special danger cases. But these cases do provide a general understanding of coverage. Federal appellate courts and the Benefits Review Board have mostly decided cases in favor of the application of the zone of special danger. They have applied the zone of special danger doctrine in cases involving car crashes, bar fights with soldiers, and even injuries caused when military police had to reasonably detain an employee. The zone has not applied in situations where the claimant was injured by a chemical peel, or killed by a black widow or autoerotic asphyxiation.
How Will the First Circuit Rule?
I doubt that the First Circuit will buy into the employer’s two-category system for classifying zone of special danger doctrine cases. The employer argued that zone of special danger cases fall into one of two categories: “recreation” and “isolation with increased risk.” But zone cases have never been limited–or perhaps pigeonholed is a better word–to those two categories. For instance, the zone of special danger doctrine has been applied to injuries sustained during a fight with MPs, which is not very recreational in nature. Second, the zone of special danger has previously been applied to a motor vehicle accident sustained during a grocery store trip, which defies classification in the “isolation with increased risk” category.
The employer’s argument also seems to assume that the reported cases are the end-all-be-all of zone of special danger questions. They are not. Employers and carriers make many zone of special danger decisions during the administration of a Defense Base Act claim, with the vast majority of decisions favoring coverage. The reported cases are cases that illustrate the boundary of the zone of special danger doctrine. They are not cases that define the entire application of the doctrine in an exclusive nature. Considering the broad application of the zone of special danger doctrine, it is inappropriate to restrict application of the doctrine to two contrived categories.
Beyond the principal categorization argument, the employer must also worry about discretion. In nearly every decision, the reviewing appellate court gave discretion to the fact-finder. Here, the fact-finder determined that the zone of special danger applied. The Board affirmed. Momentum is in the widow’s favor, especially considering the factual findings that supported application of the doctrine.
Speaking of the factual findings, it is difficult to determine why the employer thought that the employee’s trip to the grocery store was so thoroughly disconnected from employment as to exclude coverage. It wasn’t. The employer provided taxi vouchers, thus anticipating the need to travel. And traveling to a grocery store is not only a foreseeable risk, but the end result of the grocery store trip actually does benefit the employer. Fed and nourished employees are more productive, as are well-rested or less-stressed employees that recently engaged in recreation.
It is equally unclear why a trip to a grocery store farther away than a closer grocery store would not be covered. The argument seems to suggest that a trip to a closer grocery store–perhaps the closest grocery store to the decedent’s house–would be covered; but because the decedent chose to go to a larger store further away, that trip should not be covered.
Moreover, what about other types of grocery stores? What if the employee had to travel further in order to go to a kosher grocery store? What if the employee traveled a short distance but chose to shop at a specialty store instead of a typical grocery store? What if the employee shopped at both a close grocery store and also a butcher shop that was further away? Would one trip be fall within the zone of special danger but not the other? Would it matter if the employee traveled to the butcher shop to get a bunch of steaks in preparation for a party? The widow argued that having to go farther to get fresh groceries was a key issue in this case, but I would disagree with that argument because I don’t think the zone of special danger is so limited. Sure, traveling farther to get fresh groceries is a condition of the employment; but that condition should not preclude the application of the zone of special danger to closer grocery stores. Perhaps this was the point of the First Circuit’s questions about factual findings–such findings may be necessary to appropriately apply the zone of special danger doctrine.
Getting back to the employer’s argument, who is to say that a trip to the grocery store can’t be recreational in nature? Many grocery stores have coffee shops or cafeterias. Patrons can relax with a warm cup of coffee before or after shopping. And even the act of grocery shopping can be cathartic instead of a laborious chore. The point is that one person’s chore may be another person’s recreation. As such, the line being drawn by the employer in this case is artificial and can actually be used against the employer.
Finally, the First Circuit will have to address the Director’s argument that it is entitled to deference. In some situations, a government agency’s position is given deference under a Supreme Court case called Skidmore v. Swift & Co., 323 U.S. 134 (1944). The weight given to an agency’s position “will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Here, the First Circuit could very well give deference to the Director’s position that the decedent’s car accident arose from the conditions and obligations of employment such that the zone of special danger should apply.
It will be a few more weeks before the First Circuit decides Battelle Memorial Institute v. DiCecca. Based on the arguments, the caselaw, the Supreme Court’s application of the zone of special danger, and the treatment of the doctrine in federal appellate courts and the Benefits Review Board, my opinion is that the claimant-widow will win.
Photo of the Supreme Court taken from my iPhone on a very, very cold morning.