{ "id": 1914687, "name": "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS", "name_abbreviation": "Deffenbaugh Industries & Travelers Insurance v. Angus", "decision_date": "1993-05-10", "docket_number": "92-838", "first_page": "100", "last_page": "109", "citations": [ { "type": "official", "cite": "313 Ark. 100" }, { "type": "parallel", "cite": "852 S.W.2d 804" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "237 Ark. 560", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1738028 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ark/237/0560-01" ] }, { "cite": "32 Ark. App. 29", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6644191 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark-app/32/0029-01" ] }, { "cite": "27 Ark. App. 42", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136646 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/27/0042-01" ] }, { "cite": "21 Ark. App. 1", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136010 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/21/0001-01" ] }, { "cite": "8 Ark. App. 342", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6142442 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ark-app/8/0342-01" ] }, { "cite": "269 Ark. 789", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712533 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0789-01" ] }, { "cite": "21 Ark. App. 143", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139489 ], "weight": 2, "year": 1987, "pin_cites": [ { "parenthetical": "citing 1 A Larson, Workmen's Compensation Law \u00a7\u00a7 14.00, 20.00 (1985)" }, { "parenthetical": "citing 1 A Larson, Workmen's Compensation Law \u00a7\u00a7 14.00, 20.00 (1985)" } ], "opinion_index": 0, "case_paths": [ "/ark-app/21/0143-01" ] }, { "cite": "15 Ark. App. 226", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141059 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/15/0226-01" ] }, { "cite": "39 Ark. App. 19", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136199 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0019-01" ] }, { "cite": "35 Ark. App. 32", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6646872 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark-app/35/0032-01" ] }, { "cite": "20 Ark. App. 98", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6646791 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark-app/20/0098-01" ] }, { "cite": "302 Ark. 22", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884268 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0022-01" ] }, { "cite": "298 Ark. 363", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889918 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/298/0363-01" ] }, { "cite": "311 Ark. 103", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1896930 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/311/0103-01" ] }, { "cite": "39 Ark. App. 24", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136359 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark-app/39/0024-01" ] }, { "cite": "Ark. Code Ann. \u00a7\u00a7 11-9-102", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(4)" } ], "opinion_index": 2 }, { "cite": "237 Ark. 560", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1738028 ], "weight": 4, "year": 1964, "pin_cites": [ { "page": "568" }, { "page": "473" } ], "opinion_index": 2, "case_paths": [ "/ark/237/0560-01" ] } ], "analysis": { "cardinality": 796, "char_count": 17551, "ocr_confidence": 0.886, "pagerank": { "raw": 4.782574424436339e-07, "percentile": 0.9308430723181158 }, "sha256": "144e2d17d6b1e83296bc02bad63eed5d53c052d5075e9d55f453872d09037e58", "simhash": "1:1fd96be129f4820a", "word_count": 3040 }, "last_updated": "2023-07-14T19:14:05.799320+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Corbin, J., concurs.", "Brown, J., dissents." ], "parties": [ "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS" ], "opinions": [ { "text": "Steele Hays, Justice.\nIn this Workers\u2019 Compensation case the claimant, Earl Angus (appellee) sustained injuries when a tornado destroyed a mobile home where he resided on the premises of his employer, Deffenbaugh Industries (appellant). The Commission\u2019s finding that the injuries were compensable was affirmed by the Court of Appeals by a vote of three to three. In Deffenbaugh Industries, Inc. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992) the Court of Appeals adopted the positional risk doctrine to allow compensation for an employee injured by neutral risks. We granted the petition for review of Deffenbaugh. and its carrier Traveler\u2019s Insurance Company pursuant to our Rule 29(6) because of the tie vote. We affirm and apply the increased risk doctrine in so doing.\nEarl Angus was the manager of West Memphis Industrial Oil Services, a subsidiary of Deffenbaugh Industries. Appellants\u2019 facility was engaged in the business of collecting and reselling waste oil, operating twenty-four hours per day. Trucks bringing waste oil to the facility arrived at odd hours. The parties stipulated that all of Mr. Angus\u2019 duties of employment were required to be performed as needed, twenty-four (24) hours a day, seven (7) days a week.\nEarl Angus and his wife entered into a rental agreement with his employer pursuant to which the company purchased a trailer and placed it on the premises of the bulk plant so the family could reside there. This was a condition of his employment. A zoning ordinance of the City of West Memphis prohibited a residence in a commercial area and Angus obtained a zoning variance to permit the mobile home in a commercial zone. Although Angus conducted business from an office in another building, a telephone was installed in the mobile home so that he could be reached by company drivers or customers at any time.\nOne the night of December 14, 1987, Angus went to the mobile home while awaiting a truck driven by Billy Harris. He had been there approximately fifteen minutes and was eating dinner with his family when a tornado struck the mobile home. Mrs. Angus was killed and Mr. Angus and his daughter were severely injured. Billy Harris arrived several minutes after the storm and discovered the Angus family.\nThe Workers\u2019 Compensation Commission affirmed the Administrative Law Judge\u2019s decision that Angus suffered compensable injuries arising from and in the course of his employment. The Commission found that the conditions and obligations imposed upon Angus by his employer required him to maintain a constant presence on the premises and exposed him to the risk of the danger which caused his injury.\nThe Court of Appeals affirmed the Commission\u2019s decision and accepted the positional risk doctrine to provide compensation for employees who are injured by neutral risks but declined to draw a fine distinction between types of risks. The court held that Angus\u2019 injuries \u201carose out of his employment\u201d because \u201cbut for\u201d the employment, he would not have been in his home on his employer\u2019s premises at the time the tornado struck the area.\nOn appeal of a worker\u2019s compensation case from the Court of Appeals to this court, the evidence must be viewed in the light most favorable to the Commission\u2019s decision and its decision must be upheld if it is supported by substantial evidence. Hall's Cleaners v. Wortham, 311 Ark. 103, 842 S.W.2d 7 (1992). Substantial evidence exists if reasonable minds could have reached the same conclusion. Wade v. Mr. C. Cavenaugh\u2019s, 298 Ark. 363, 768 S.W.2d 521 (1989). Thus, before the appellate court may reverse a decision by the Commission, it must be convinced that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. International Paper Co. v. Tuberville, 302 Ark. 22, 786 S.W.2d 830 (1990); Howard v. Arkansas Power & Light Co., 20 Ark. App. 98, 724 S.W.2d 193 (1987).\nThus, the issue now before us is whether there is substantial evidence to support the Commission\u2019s finding that Angus sustained injuries \u201carising out of and in the course of his employment.\u201d A claimant seeking benefits must prove by a preponderance of the evidence that the injury arose out of and in the course of the employment. Arkansas Dep\u2019t of Correction v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (1991). \u201cArising out of the employment\u201d refers to the origin or cause of the accident while the phrase \u201cin the course of the employment\u201d refers to the time, place, and circumstances under which the injury occurred. Jones v. City of Imboden, 39 Ark. App. 19, 832 S.W.2d 866 (1992); Gerber Products v. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).\nThe appellants first argue that Mr. Angus was not \u201cin the course and scope\u201d of his employment because he was not performing any job related duties at the time he was injured. Appellants contend that because Angus was eating dinner when the tornado struck, it does not meet the time, place and circumstances requirements of being in the course of employment.\nWith respect to course of employment, the test requires that the injury occur within the time and space boundaries of the employment, while the employee is carrying out the employer\u2019s purpose or advancing the employer\u2019s interests directly or indirectly. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987) (citing 1 A Larson, Workmen\u2019s Compensation Law \u00a7\u00a7 14.00, 20.00 (1985)).\nIn applying the foregoing test, we affirm the Court of Appeals decision that there was substantial evidence that Angus was injured while in the course of his employment. Angus was required to live on the premises as a condition of his employment and was on call twenty-four (24) hours a day, seven days a week. Because he was continuously on duty, Angus qualifies as a resident employee. As such, \u201cthe entire period of his presence on the premises is deemed included in the course of employment.\u201d See 1 A Larson, Law of Workmen\u2019s Compensation \u00a7 24.00 (1992). Appellants obviously benefitted from Angus\u2019s accessibility to the plant and the security his presence provided. In addition, Angus was waiting for the Harris truck to arrive and thus the conditions of his employment made it incumbent on him to remain in an area of risk. Therefore, we conclude the conditions of employment and the imminent arrival of the Harris truck demonstrate that Angus was in the course of his employment when he was injured by the tornado.\nAppellants next argue the injuries did not arise out of the employment because a tornado is an \u201cAct of God\u201d which has no known cause. In order for an injury to arise out of the employment, it must be a natural and probable consequence or incident of the employment and a natural result of one of its risks. J & G Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (Ark. App. 1980).\nBoth parties urge us to apply the positional risk doctrine. Under this theory, an injury is compensable if it would not have happened but for the fact that the conditions or obligations of the employment put the claimant in the position where he was injured. 1 A Larson, Law of Workmen\u2019s Compensation, \u00a7 6.00 (1992). This doctrine only applies when the risk is neutral, meaning that the risk which caused the injury was neither personal to the claimant nor distinctly associated with the employment. See 1 Larson, Law of Workmen\u2019s Compensation, \u00a7 6.50 (1992).\nAlthough the appellants purport to argue the positional risk doctrine, they suggest that the increased risk doctrine is applicable. Under the latter doctrine, the injuries are compensable if the employment exposed the employee to a greater degree of risk than other members of the general public in the same vicinity.\nThe Court of Appeals chose to apply the positional risk doctrine, which it refers to as a \u201csubstitute for the \u2018arising out of test.\u201d The court stated that \u201cbut for\u201d the employment, Mr. Angus would not have been exposed to injury by neutral risks. Thus, the court classifies tornadoes as neutral risks which are compensable under this doctrine.\nUntil this decision, Arkansas courts had not expressly adopted the positional risk doctrine, although it has been discussed in such cases as Adkins v. Teledyne Exploration Co., 8 Ark. App. 342, 652 S.W.2d 55 (1983); Burks v. Anthony Timberlands, Inc., 21 Ark. App. 1, 727 S.W.2d 388 (1987); Pigg v. Auto Shack, 27 Ark. App. 42, 766 S.W.2d 36 (1989) and Kendrick v. Peel, Eddy, & Gibbons Law Firm, 32 Ark. App. 29, 795 S.W.2d 365 (1990).\nIn Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), this court applied the increased risk doctrine to compensate a claimant who was injured at work by a gust of wind which picked him up, carried him approximately 7 5 feet and dropped him on a concrete apron. The claimant was securing a sign outside at the time. The court stated:\nThe general rule with respect to injuries and deaths due to tornadoes, hurricanes and other forms of windstorms is, if an employee, by reason of his employment, is exposed to a risk of being injured by storm \u2018which is greater than the risk to which the public in that vicinity is subject, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury,\u2019 it is an \u2018injury arising out of the employment, although unexpected and unusual.\u2019 The test has been said to be \u2018not whether the injury was caused by an act of God,\u2019 but \u2018whether the one injured was by his employment specially endangered by the act of God.\u2019 \u201d\nParrish, 237 Ark. at 560.\nIn Pigg, supra, and in the present case, the Court of Appeals has stated that Parrish presents the fact situation favorable to the positional risk doctrine. Although an appropriate scenario to the positional risk doctrine may eventually arise, the fact remains that we chose to apply the increased risk doctrine in Parrish. We believe that is the appropriate standard to apply in the present case.\nThe increased risk doctrine is necessary in order to preserve the requirement that a causal connection must exist between the injury and some risk of the employment. Under this theory, the claimant must only prove that the conditions of employment, or the place where his employment required him to be, intensified the risk of injury due to extraordinary natural causes.\nIn applying the increased risk test to the instant case, we believe that Earl Angus was more at risk than the general public due to the performance of the duties of his job. His employment increased his risk of injury because he was obliged to wait for Billy Harris during the time when a tornado struck the area. He did not have the option to seek safer ground. Moreover, there is advertence in the record to the manifest susceptibility of trailers to tornado damage. Photographs of the scene reflect that the mobile home was wrenched from its moorings and totally destroyed, whereas the evident damage to the structures of the surrounding plant was partially caused by impact with the trailer debris. Clearly, the conditions and obligations of Angus\u2019s employment exposed him to higher risk, positioned so that the tornado dealt the injuries he suffered. Therefore, we affirm the Court of Appeals decision that the claimant\u2019s injuries arose out of and in the course of his employment.\nAffirmed.\nCorbin, J., concurs.\nBrown, J., dissents.", "type": "majority", "author": "Steele Hays, Justice." }, { "text": "Donald L. Corbin, Justice,\nconcurring. I concur. I prefer to apply the positional risk doctrine adopted by the Arkansas Court of Appeals. Thus, applying the positional risk doctrine, Mr. Angus would not have been exposed to injury by the tornado, a neutral risk, \u201cbut for\u201d his employment.", "type": "concurrence", "author": "Donald L. Corbin, Justice," }, { "text": "Robert L. Brown, Justice,\ndissenting. The opinion of the majority effectively does away with the requirement that an injury arise out of employment to be compensable. The twin tests for a workers\u2019 compensation award are that the injury 1) arise out of employment, and 2) occur in the course of employment. Ark. Code Ann. \u00a7\u00a7 11-9-102(4); 1 l-9-401(a)(l) (1987). The majority correctly concludes that Earl Angus\u2019s injury occurred in the course of employment. I cannot agree, however, that his injury, which was caused by a tornado while he was not performing work duties and was eating supper at his home, arose out of his employment.\nAngus\u2019s mobile home was on the premises of his employer, where he was the manager, but he worked in a separate office. That office was not destroyed by the tornado. He had left his office at 9:15 p.m. to return to his home to have supper. That is what he was doing when the tornado struck. There is no question that he had quit work for this period of time, though he knew that a trucker named Billy Harris would be coming in sometime later that evening:\nQ. Was Mr. Harris working that day?\nA. Yes, he was loaded that morning. I was in the process of cooking oil that night and I knew Billy wouldn\u2019t be in until late, so I went home to eat and wait for Billy to get back in and load him when he got back in that night.\nQ. What time was this when you quit?\nA. It was about 9:15 when I got home.\nQ. And then what happened?\nA. I was talking to my wife and I heard some loud pops and noises and I had heard a transformer explode before, the lights were flickering and I heard the roar and everything. I grabbed my wife and my child and we started to get out of the trailer and everything exploded. That is all I remember.\nQ. But, before the tornado demolishing your quarters there, would you have had work to do that night?\nA. I had to load Billy when he come back in. The tornado then hit at about 9:30.\nAngus testified that normally he went to work at 6:45 in the morning and would be finished at about 7:00 or 8:00 p.m. His typical routine was to go to the house trailer after 7:00 or 8:00 in the evening and then return to his office after supper to turn the alarm system off and perform other duties. When the tornado hit, Angus admitted that he had gone home and was not performing any duties for his employer while he was eating supper with his family:\nQ. But you were not performing of (sic) your employment at the time you were in the trailer?\nA. Well, not any duties, no, but my work wasn\u2019t done until Billy got back in.\nQ. So, you might have gone back in the yard to help Billy when he got back in, but as far as what you were doing in the trailer, you testified that all you were doing was eating.\nA. Eating dinner.\nQ. And you were staying there with your family?\nA. Right.\nQ. And that is when the tornado hit?\nA. Correct.\nIn sum, we have a neutral risk \u2014 the tornado \u2014 unrelated to Angus\u2019s employment that caused his injury while he ate supper in his home during a period of time when, by his own admission, he was not performing duties for his employer. The fact that a truck would be arriving later that night and that he would have to leave his home and perform some duties does not convert Angus\u2019s injury by the tornado into an injury arising out of his employment. He might have been operating in the course of his employment because his mobile home was on his employer\u2019s premises and he was on call, but the injury did not arise out of it.\nThe majority, accordingly, stretches to reach this result. In my judgment, this court was correct in Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W.2d 468 (1964), which also involved a wind-related injury. In that case, Adams was employed as a night manager of a service station, and at the time in question he was the only person working on the shift. At about 3:30 a.m., Adams decided to go fasten and secure items on the service station islands. It was while performing these duties that he was injured by a gust of wind. We stated in that case:\nCertainly, there was a duty upon Adams, as an employee, to protect the property of his employer, and the protection that Adams was seeking to afford, could not have been done without leaving the building. The acts being performed were as much a part of his duties as though he had been waiting on a customer when the wind struck. There is absolutely no evidence that Adams was not engaged in the work that he testified to at the time the injury was sustained.\n237 Ark. at 568, 374 S.W.2d at 473. Those facts are substantially different from the facts in the present case and exhibit a clear injury arising out of employment. Adams was unquestionably performing work-related duties when he was injured. The same cannot be said in the case before us.\nWe granted review of this case because of a three-to-three division in the Court of Appeals sitting en banc. The evenly divided court amounted to an affirmance of the Workers\u2019 Compensation Commission\u2019s decision. Did the origin and cause of the injury emanate from Angus\u2019s employment? I do not think so. Angus did not perform work-related duties twenty-four hours a day at Deffenbaugh Industries, and he was not working at the time the tornado struck. Indeed, he had left his office and was in his mobile home having supper. The mere fact that he lived on the premises cannot sustain the requirement of work-related causation and this award. Had the tornado injured him when he was in his office or assisting Billy Harris unload his truck, I would have no hesitancy in affirming the award. Here, though, that is not the case. I would reverse the Commission\u2019s decision.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Michael E. Ryburn, for appellants.", "Schieffler Law Firm, by: Edward H. Schieffler, for appellee." ], "corrections": "", "head_matter": "DEFFENBAUGH INDUSTRIES and Travelers Insurance Company v. Earl ANGUS\n92-838\n852 S.W.2d 804\nSupreme Court of Arkansas\nOpinion delivered May 10, 1993\nMichael E. Ryburn, for appellants.\nSchieffler Law Firm, by: Edward H. Schieffler, for appellee." }, "file_name": "0100-01", "first_page_order": 130, "last_page_order": 139 }