The Zone of Special Danger is an integral feature of the Defense Base Act, a system of federal workers’ compensation that provides benefits to certain defense contractors. What is often misunderstood, however, is the history of the Zone of Special Danger (or “ZOSD”). Considering the ZOSD’s age, there is still a lot of litigation about the doctrine’s applicability. Below, I provide some explanation about the origins of the ZOSD and how recent courts have honored the origins of the ZOSD in thoughtful opinions.
The Zone of Special Danger is an Import from England:
First, it is important to understand that the ZOSD is an import from English caselaw. In Thom v. Sinclair, a case published in 1917, the House of Lords analyzed whether an injury “arose out of” employment when a brick wall fell on the shed in which the employee was working. Lord Shaw wrote:
There may be causes of danger arising to all employees, which causes are not confined to the individual situation, but are general and applicable to the employment as a whole. It may be that that employment is underground, with all the rights attached to underground work. It may be in the air or on the sea, with a special exposure to the dangers relative to such elements; or it may be on the surface of the earth, in surroundings which are those of peril. In all such cases it is quite possible to figure injuries by accident in the course of and arising out of the employment, which are totally disconnected with the nature of the employment upon which the workman was generally or for the moment engage, but which, without any doubt, sprang from the employmentin the sense that it was on account of the obligations or conditions thereof, and on that account alone, that he incurred the danger. In short, my view of the statue is that the expression “arising out of the employment” is not confined to the mere “nature of the employment.” The expression, in my opinion, applies to the employment as such—to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of the employment” apply.
To paraphrase Lord Shaw, courts consider the nature, conditions, obligations, and incidents of employment to determine whether the employee was injured within the ZOSD.
Justice Cardozo First Used the ZOSD Terminology in the United States:
Before Benjamin Cardozo became an Associate Justice of the Supreme Court of the United States, he was a judge on the New York Court of Appeals. In 1920, then-Judge Cardozo issued a decision called Leonbruno v. Champlain Silk Mills. He applied the ZOSD doctrine to both the “arising out of” and “in the course of” elements of the claimant’s injury, writing:
The claimant was injured not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risks of such associations and conditions were the risks of the employment.
Subsequent New York courts continued to use the ZOSD to extend benefits to injured workers. For example, in Heidemann v. American District Telegraph Company, the Court of Appeals of New York applied the ZOSD doctine to reinstate an award of death benefits to the widow of a night watchman killed on duty. The court determined the the employee’s “calling multiplied the chance that he would be near when trouble came, and in multiplying the chance increased exposure to the risk.”
Soon, other jurisdictions applied the ZOSD doctrine to the benefit of injured workers or their survivors. In 1926, the Supreme Court of Texas issued Cassell v. U.S. Fidelity & Guaranty Company. There, the court favored Leonbruno‘s statement regarding the ZOSD, saying that Leonbruno “stated the rule splendidly.” Then, in 1929, the Supreme Court of Alabama issued Dean v. Stockham Pipe & Fittings Company, where it favorably cited the ZOSD.
Enter the Supreme Court:
It was against this backdrop that the U.S. Supreme Court issued O’Leary and first applied the ZOSD doctrine—an expansion of traditional workers’ compensation liability—to a DBA claim. In O’Leary, the Supreme Court succinctly stated the doctrine’s core concepts:
The test of recovery is not a relation between the nature of employment and the injured person and the accident. Thom v. Sinclair, (1917) A.C. 127, 142. 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.
O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 506-07 (1951).
The Court has not changed the core concepts of the ZOSD doctrine since its inception in 1951, despite having at least two opportunities to do so. See O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 362 (1965) (per curiam); Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 27 (1965). In fact, the Court found that the ZOSD doctrine accorded “with the humanitarian nature of the Act,” see O’Keeffe, 380 U.S. at 362-63, and that the doctrine required only for “the obligations or conditions of employment [to] create the ‘zone of special danger’ out of which the injury or death arose,” see Gondeck, 382 U.S. at 27.
Conclusion – The ZOSD is Still Going Strong:
Recent caselaw reveals that the ZOSD is alive, well, and thriving. The doctrine works an expansion of traditional employer liability. See Battelle Mem’l Inst. v. DiCecca, 792 F.3d 214, 220 (1st Cir. 2015).
Subsequent courts and the Board have “distilled” the core concepts of the ZOSD jurisprudence into a few basic principles. See DiCecca, 792 F.3d at 220-23. Retired Supreme Court Justice David Souter, sitting by designation on the First Circuit panel which decided DiCecca, determined:
- The ZOSD doctrine “works an expansion of traditional employer liability to include coverage for injuries without any direct causal connection for an employee’s particular job or to any immediate service for the employer. They must simply fall within foreseeable risks occasioned by or associated with the employment abroad.” Id. at 220 (emphasis added).
- Whether a risk is foreseeable “is necessarily specific to context and thus turns on the totality of circumstances.” Id.
- The ubiquity of a risk doesn’t matter. What matters is whether the risk, although ubiquitous, is a “foreseeable, reasonable incidence to the foreign employment.” Id. at 223, n.2.
If these basic principles are true, then a DBA employee’s injury could fall under the ZOSD doctrine’s umbrella, making DBA coverage easier to prove. To be sure, the application of the ZOSD doctrine to an overseas injury is not a “given” and DBA employees should consult an attorney to see if the ZOSD doctrine applies to their case.
