Hall v . New England Business CV-03-083-M 04/29/03 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Tashia Hall, Plaintiff
v. Civil N o . 03-83-M Opinion N o . 2003 DNH 073 New England Business Service, Inc., Defendant
O R D E R
Tashia Hall brings this action against her former employer,
New England Business Service, Inc. (“NEBS”), claiming that NEBS’s
negligence proximately caused her to be attacked and abducted by
another NEBS employee. She seeks damages for injuries she
sustained as a result of that assault. NEBS moves to dismiss
both counts in Hall’s complaint, on grounds that, as a matter of
law, they do not state viable claims. See Fed. R. Civ. P.
12(b)(6). Hall objects.
Standard of Review
When ruling on a motion to dismiss under Fed. R. Civ. P.
12(b)(6), the court must “accept as true the well-pleaded factual
allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff’s favor and determine whether the
complaint, so read, sets forth facts sufficient to justify
recovery on any cognizable theory.” Martin v . Applied Cellular
Tech., Inc., 284 F.3d 1 , 6 (1st Cir. 2002). Dismissal is
appropriate only if “it clearly appears, according to the facts
alleged, that the plaintiff cannot recover on any viable theory.”
Langadinos v . American Airlines, Inc., 199 F.3d 6 8 , 69 (1st Cir.
2000). See also Gorski v . N.H. Dept. of Corrections, 290 F.3d
466, 472 (1st Cir. 2002) (“The issue presently before u s ,
however, is not what the plaintiff is required ultimately to
prove in order to prevail on her claim, but rather what she is
required to plead in order to be permitted to develop her case
for eventual adjudication on the merits.”) (emphasis in
original).
Background
Accepting the allegations set forth in Hall’s complaint as
true, the material facts appear as follows. During 2002, NEBS
employed Hall as a printing press operator. Until November of
that year, Hall and another employee of NEBS - Mark Gagne - were
romantically involved. During the course of that relationship,
2 Gagne threatened and assaulted Hall, prompting her to obtain a
temporary domestic violence restraining order against him.
Hall told representatives of NEBS that she had obtained a
restraining order against Gagne and she “expressed concern about
Gagne being on the business premises during the same times that
[she] was on the premises.” Complaint at para. 5 . NEBS
responded by implementing a policy that prohibited Gagne from
having any contact with Hall during working hours. When Gagne
later violated that policy, Hall informed her supervisor. NEBS
responded by: (1) transferring Gagne to an NEBS facility in a
neighboring state; and (2) informing Hall that it would provide a
security officer on the premises (during certain designated
hours) for her protection. Id.
Approximately six weeks after transferring Gagne, however,
NEBS informed Hall that it planned to transfer him back to the
plant at which she worked. Hall says she immediately expressed
concern and reminded NEBS officials of the threats that Gagne had
leveled against her. Nevertheless, NEBS transferred Gagne back
to the New Hampshire facility. Approximately 10 days later, Hall
3 told representatives of NEBS that Gagne had “been glaring at her
in a menacing fashion that day and provided [NEBS] with
additional copies of the [restraining order].” Complaint at
para. 8 .
The following day, Hall was dismissed from work early due to
inclement weather. While in the NEBS parking lot clearing her
car of snow, Hall was approached by Gagne, who was driving a snow
plow owned by NEBS. According to Hall’s complaint, “Gagne
approached [her] in a company truck, attacked her, assaulted her
with a sharp weapon, threatened her life and person, and forced
her into the company truck, and abducted her.” Id. at para. 9.
As a result of the attack, Hall suffered several stab and bite
wounds.
Upon learning of the attack, NEBS notified its workers’
compensation insurance carrier. It then provided Hall with forms
necessary to complete a claim for workers’ compensation benefits.
But, by letter dated January 1 7 , 2003, Hall’s attorney notified
NEBS that she was not pursing a claim for workers’ compensation
4 and was, instead, exploring the possibility of filing a civil
(negligence) suit against NEBS.
Meanwhile, Bert Sell, a claims investigator hired by NEBS’s
workers’ compensation insurance carrier (who was apparently
unaware that Hall did not intend to seek workers’ compensation
benefits), looked into the assault and concluded that Hall’s
injuries fell outside the scope of New Hampshire’s Workers’
Compensation Law, N.H. Rev. Stat. Ann. (“RSA”) ch. 281-A (the
“Act”). In a letter dated January 2 7 , 2003 (i.e., 10 days after
Hall had already notified NEBS that she did not intend to pursue
a claim for workers’ compensation benefits), Sell informed Hall
of his conclusions. Plaintiff’s memorandum (document n o . 7 ) at
11-12.
This suit followed, in which Hall brings two claims against
NEBS: negligence (count 1 ) and negligent hiring, retention, or
supervision (count 2 ) .
5 Discussion
The sole question presented by NEBS’s motion to dismiss is
whether the Act’s so-called exclusivity provisions preclude Hall
from seeking to recover directly from her employer, NEBS. The
relevant portion of the Act provides that:
An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee’s personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:
(a) Against the employer or the employer’s insurance carrier . . . .
RSA 281-A:8 I (emphasis supplied). See also Karch v . BayBank
FSB, 147 N.H. 525, 530 (2002) (noting that an employee who is
entitled to compensation under the Act may not bring a separate
tort action against her employer and holding, “Indeed, the
Workers’ Compensation Law expressly provides that an employee
subject to that chapter waives the right to bring such a separate
action in exchange for the acceptance of benefits.”).
6 I. Hall’s Estoppel Claim.
As an initial matter, Hall claims that NEBS is estopped from
asserting that the exclusivity provisions of the Act bar her
negligence claims. Specifically, she says because NEBS (through
Mr. Sell, the agent of NEBS’s insurance carrier) issued a formal
“Memo of Denial of Workers’ Compensation Benefits,” in which he
concluded that Hall was injured in a “domestic dispute that was
not work related,” NEBS cannot now assert that her negligence
claims are precluded by the Act’s exclusivity provisions.
As to that particular argument, Hall relies on two documents
that she has attached to her memorandum of law (but which are not
part of her complaint). NEBS filed a reply memorandum, to which
it attached additional documents, as well as an affidavit. Then,
most recently, Hall submitted a surreply memorandum, attached to
which is an affidavit executed by her attorney, describing
certain communications he had with M r . Sell. Because both parties
have submitted documents upon which they ask the court to rely
and which are not a part of Hall’s complaint, and because neither
party has objected to the submissions made by the other1 (nor has
1 NEBS initially asserted that Hall had not properly authenticated two documents attached to her memorandum of law in
7 either party sought additional time to further supplement the
record), the court will, as to the “estoppel” issue, treat NEBS’s
motion as one for summary judgment. See Fed. R. Civ. P. 12(b)
(“If, on a motion asserting the defense numbered (6) to dismiss
for failure of the pleading to state a claim upon which relief
can be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 5 6 . ” ) . See
also Pure Distributors, Inc. v . Baker, 285 F.3d 1 5 0 , 154 (1st
Cir. 2002); Garita Hotel Ltd. P’ship. v . Ponce Federal Bank,
F.S.B., 958 F.2d 1 5 , 18-19 (1st Cir. 1992).
In support of her estoppel argument, Hall says NEBS (through
Mr. Sell, the agent of NEBS’s insurance carrier) knowingly made
representations (i.e., that her injuries are not compensable
under the A c t ) , upon which she reasonably relied to her
detriment. As authority for her position, Hall points to Appeal
of Cloutier Lumber Co., 121 N.H. 420 (1981), in which the court
held that “[e]stoppel prevents one party from asserting a
position contrary to one previously taken when it would be unfair
opposition to NEBS’s motion to dismiss. Hall has, however, addressed that issue.
8 to allow him to do s o . It arises when one party has knowingly
made representations upon which the other reasonably has relied
to his detriment.” Id. at 422. Importantly, however, Hall
cannot show that she relied to her detriment upon M r . Sell’s
statements.
Based upon the documents presented by the parties, it is
clear that Hall notified NEBS of her intention not to seek
workers’ compensation benefits before she received the denial of
benefits memo from M r . Sell. Consequently, the documents of
record establish that Hall did not make her decision to forego a
claim for benefits under the Act “in reliance upon” M r . Sell’s
memo.
Additionally, even if the timing of the relevant events were
different, Hall still could not show detrimental reliance because
the time during which she may appeal the insurance carrier’s
adverse decision has not lapsed. See RSA 281-A:42-d (affording
claimants 18 months after receiving notice that a workers’
compensation claim has been denied by the insurance carrier
within which to petition for a hearing). Because Hall was
9 injured on January 3 , 2003, that 18-month period has not yet
expired. Accordingly, even assuming M r . Sell can properly be
viewed as NEBS’s agent, Hall cannot show that she relinquished
any rights as a result of having detrimentally relied on his
denial letter.
II. Compensable Injuries Under the Act.
The Act defines compensable injuries as those “arising out
of and in the course of employment.” RSA 281-A:2 X I . In
interpreting that statutory provision, the New Hampshire Supreme
Court has held that, for an employee’s injuries to be compensable
under the Act, it must be shown:
(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to an employer and employee.
Cook v . Wickson Trucking Co., 135 N.H. 1 5 0 , 154 (1991) (citations
and internal quotation marks omitted). Failure to prove any one
of those three elements is fatal to a claim for benefits under
10 the Act. Harrington v . Brooks Drugs, Inc., 148 N.H. 1 0 1 , 105
(2002). S o , to prevail on its claim that Hall’s negligence
claims are, as a matter of law, barred by the Act’s exclusivity
provisions, NEBS must show that the circumstances leading to
Hall’s injuries satisfy each of the three elements identified by
the New Hampshire Supreme Court.2
2 Although not central to its argument in support of its motion to dismiss, NEBS seems to suggest that the Act’s exclusivity provision precludes Hall from bringing her common law negligence claims against it even if her injuries are not compensable under the Act. See, e.g., Defendant’s memorandum at 6 n . 4 (“the workers’ compensation bar to Hall’s negligence claims against NEBS in this case is unrelated to the ultimate determination as to whether her injuries are actually compensable.”). In other words, NEBS apparently believes that the exclusivity provisions of the Act are not co-extensive with the Act’s coverage. NEBS seems to assert that the exclusivity provision actually sweeps much more broadly, and bars all common law and statutory claims by a worker against an employer, even when the employee’s underlying injury is not compensable under the Act. Such a broad reading of the Act’s exclusivity provisions, would likely implicate due process concerns. See generally Young v . Prevue Products, Inc., 130 N.H. 8 4 , 87-88 (1987). See also 6 A . Larson, Workers’ Compensation Law, § 100 at 100-1 (2002) (“The compensation remedy is exclusive of all other remedies by the employee . . . against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. If it does not, . . . the compensation act does not disturb any existing remedy.”)(emphasis supplied). Nevertheless, it is not necessary to resolve that point in order to resolve NEBS’s motion to dismiss.
11 III. Injuries Stemming from the Assault on Hall.
Hall contends that because she was assaulted after she had
been dismissed from work and since she was no longer within the
physical confines of NEBS’s facility, she “was no longer engaged
in any work-related activity” when the assault took place.
Plaintiff’s memorandum at 7 . She goes on to say that there is
“simply no relationship between cleaning ice and snow from a car
windshield when leaving for home after dismissal from work, and
employment-related activities.” Id. Consequently, she says her
injuries are not compensable under the Act and, therefore, she is
not barred from suing her employer, NEBS, to recover damages for
the injuries inflicted by Gagne.
NEBS, on the other hand, contends that Hall’s injuries are
compensable under the Act. Thus, says NEBS, she is statutorily
barred from pursing any claims against it that arise out of those
work-related injuries; her remedies are limited to compensation
under the Act.
12 A. Injuries “Arising of out Employment.”
To prevail on its motion to dismiss, NEBS must first show
that there was a causal connection between Hall’s injuries and
her employment. See, e.g., Harrington, 148 N.H. at 105.
Importantly, however, “the question is not what the employee is
about to d o , or has just been doing, but whether or not at the
time of injury he is within the ‘zone of his employment.’”
Whittemore v . Sullivan County Homemaker’s Aid Service, 129 N.H.
432, 436 (1987) (quoting Gallienne v . Becker Bros. Shoe Co., 88
N.H. 375, 380 (1937)).
Hall emphasizes the fact that, when she was attacked, she
was no longer “on the clock” and, instead, had been released from
work for the day and was preparing to go home. That focus i s ,
however, too narrow. As the New Hampshire Supreme Court has
repeatedly observed, the provisions of the Act are construed
broadly and liberally, and all reasonable doubts are resolved in
favor of finding a claimed injury to be compensable under the
Act. See, e.g., Appeal of Denton, 147 N.H. 259, 260 (2001);
Appeal of Estate of Balamotis, 141 N.H. 456, 458 (1996). See
also Gagnon v . New Hampshire Ins. Co., 133 N.H. 7 0 , 76-77 (1990)
13 (rejecting plaintiff’s assertion that the Act’s language should
be liberally construed in favor of the injured employee’s
position, regardless of whether he or she seeks benefits under
the Act or seeks to demonstrate that his or her injuries are not
compensable under the Act, thereby allowing suit against the
employer).
In this case, accepting the facts pleaded by Hall as true,
her injuries were, as a matter of law, causally connected to her
employment. Stated in simplest terms, she plainly would not have
been in the NEBS parking lot at the time of her injury had it not
been for her employment. See generally, Gagnon, 133 N.H. 76
(“First, the injury resulted from a risk created by her
employment and therefore arose out of her employment. The camp
pool in which [plaintiff] nearly drowned was available to camp
employees during their ‘one-hour staff free swim.’ [Plaintiff]
would not have been in the pool at the time of her seizure had it
not been for her employment at Camp Allen.”); U.S. Fidelity &
Guar. C o . v . Gagne, 103 N.H. 4 2 0 , 423 (1961) (“The evidence
warranted finding and ruling that the plaintiff’s injuries arose
out of and in the course of her employment. . . . [P]laintiff was
14 utilizing the usual and expected means of access from the public
street to her employment, and was injured upon property adjoining
her place of employment and findably at the entrance to the
employer’s premises. She encountered the hazard because of her
employment, and her entry to her place of employment was clearly
an activity which was in the course of her employment.”). See
generally Balamotis, 141 N.H. at 458 (“Once an activity has been
placed in physical contact with the employment environment, the
exact nature and purpose of the activity itself does not have to
bear the whole load of establishing work connection, and
consequently the employment-connection of that nature and purpose
does not have to be as conspicuous as it otherwise might.”)
(citation and internal quotation marks omitted).
In 1937, the New Hampshire Supreme Court addressed an issue
similar to that presented in this case and concluded:
[E]mployment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is
15 one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance.
Gallienne, 88 N.H. at 377-78 (emphasis supplied) (quoting
Bountiful Brick C o . v . Giles, 276 U.S. 1 5 4 , 158 (1928)).
As to the first of the three elements NEBS must demonstrate,
then, it has established that Hall’s injuries arose out of a risk
created by her employment.
B. Injury within the “Boundaries of Space and Time Created by the Terms of Employment.”
The New Hampshire Supreme Court has made clear that, “the
ordinary perils of travel between home and work are not
considered hazards of employment and, therefore, that injuries
arising from such travel are noncompensable under our Workers’
Compensation Law.” Harrington, 148 N.H. at 106. Here, however,
Hall was not injured during the course of her commute to or from
work. Rather, she was injured in the NEBS parking lot,
immediately after she had been released from work and as she
prepared to drive home. Under New Hampshire law, injuries
sustained under those conditions are deemed to have occurred
16 within the boundaries of time and space created by the terms of
employment. See, e.g., Gallienne, 88 N.H. at 380 (“It is of no
consequence that the plaintiff’s time was her own [when she was
injured], and that, with the defendant’s acquiescence, she had
then gone outside the factory in pursuit of her own private
affairs. Such is always the case when the employee is going back
and forth between his home and his work. The question is not
what the employee is about to d o , or has just been doing, but
whether or not at the time of injury he is within the ‘zone of
his employment.’” (citation omitted). See also Gagne, 103 N.H.
at 423. See generally 1 A . Larson, Workers’ Compensation Law, §
13.01[1] at 13-2 (2002) (“The course of employment is not
confined to actual manipulation of the tools of the work, nor to
the exact hours of work. On the other hand, while admittedly the
employment is the cause of the worker’s journey between home and
factory, it is generally taken for granted that workers’
compensation was not intended to protect against all the perils
of that journey. Between these two extremes, a compromise on the
subject of going to and from work has been arrived a t , largely by
case law, with a surprising degree of unanimity: for an employee
having fixed hours and place of work, going to and coming from
17 work is covered only on the employer’s premises.”) (emphasis in
original) (footnotes omitted).
C. An Activity Related to Employment.
Finally, in order to prevail on its motion to dismiss, NEBS
must demonstrate that Hall sustained her injuries “in the
performance of an activity related to employment, which may
include a personal activity if reasonably expected and not
forbidden.” Harrington, 148 N.H. at 105 (citation omitted).
Hall asserts that, as a matter of law, NEBS cannot sustain its
burden with regard to that element. Specifically, she suggests
that the New Hampshire Supreme Court has concluded that an
employee is engaged in a “personal activity” that is “reasonably
expected” only when the employee engages in conduct that is “on
the employer’s premises, utilizing the employer’s equipment, with
the employer’s knowledge.” Plaintiff’s surreply memorandum at 4
(quoting Harrington, 148 N.H. at 1 0 6 ) . Again, however,
plaintiff’s focus is overly narrow.
While the New Hampshire Supreme Court has certainly
recognized that an employee might well be engaged in “reasonably
18 expected personal activities” when he or she performs some act on
the employer’s premises, with the assistance of the employer’s
equipment, and with the employer’s knowledge, it has by no means
limited the scope of that phrase to those precise circumstances.
S o , as discussed earlier, in Gagnon the court concluded that the
claimant was engaged in an activity that was “reasonably expected
and not forbidden,” when she was injured while swimming in her
employer’s pool. Id. at 7 6 . See also Balamotis, 141 N.H. at 459
(concluding that employee who died during the course of a lunch-
time volleyball game on the employer’s premise had been engaged
in a personal activity “reasonably expected and not forbidden”);
Appeal of Griffin, 140 N.H. 6 5 0 , 656 (1996) (concluding that
injuries the claimant sustained after engaging in a fight with a
co-employee shortly after dining out were compensable under the
Act, since “petitioner’s personal activity of dining out was
reasonably expected and not forbidden by the employer. The
petitioner’s injury thus arose in the course of his
employment.”); Witham v . Gellis, 91 N.H. 226, 227 (1940)
(concluding that a filling station employee who was injured as he
crossed a highway while returning from a personal errand was
engaged in “matters of a personal nature reasonably to be
19 undertaken and not expressly forbidden,” and, therefore, his
injuries were compensable under the A c t ) .
Here, although Hall was not engaged in activity of direct
benefit to NEBS when she was attacked, the act of cleaning snow
off her car before leaving NEBS’s parking lot was, under New
Hampshire law, a personal activity that was reasonably expected
and not forbidden. And, because her injuries resulted from a
risk created by her employment, and because they occurred within
the “boundaries of time and space” created by the terms of her
employment, those injuries “arose out of her employment.”
Consequently, they are compensable under the Act and Hall is
statutorily barred from suing her employer to recover common law
damages.
IV. Applicability of LaBonte v . National Gypsum C o .
Finally, Hall’s reliance upon (as well as her efforts to
distinguish, in part) the New Hampshire Supreme Court’s holding
in LaBonte v . National Gypsum Co., 110 N.H. 314 (1970), warrants
brief discussion. In LaBonte, as here, the claimant was injured
as a result of an attack by a co-worker. And, in an effort to
20 avoid the Act’s exclusivity provision, LaBonte, like Hall, said
the attack was a result of “a purely personal matter unrelated to
his employment.” Id. at 316. In discussing the application of
the Act to injuries sustained as a result of an attack by one
employee upon another, the court noted:
The law is well established that if the assault arose from a personal quarrel unrelated to the employment or its environment, the resulting injury did not arise out of the employment. If the friction and strain arises not because of the enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each other on the job, choose to enter a purely private relationship just as they might if they had met elsewhere and quarrels develop they do not arise out of the employment. To be compensable the injury received in a quarrel must result from the conditions and obligations of the employment and not merely from the bare existence of the employment.
Id. at 316-17 (citations and internal quotation marks omitted).
Not surprisingly, Hall points to that language and says the
circumstances surrounding her injuries fall squarely within the
boundaries described by the court: although she and Gagne
apparently met at NEBS, they developed a personal relationship
outside of work and his attack upon her stemmed directly from
“friction and strain” that developed entirely outside the work
environment.
21 Importantly, however, the LaBonte court ultimately concluded
that the plaintiff’s claims against his employer were barred by
the Act’s exclusivity provision. Specifically, the court
concluded that because the plaintiff alleged that his injuries
were proximately caused by his employer’s failure to act upon
knowledge that the attacker “sought and intended to inflict”
injury upon plaintiff and, by such inaction, breached a duty to
take reasonable affirmative steps to ensure plaintiff’s safety,
his injuries necessarily resulted “from the conditions and
obligations of the employment.” Id. at 317.
So it is in this case. Hall alleges that her injuries were
proximately caused by NEBS’s failure to make the workplace
reasonably safe and its failure to take adequate steps to protect
her against Gagne’s assault in the NEBS parking lot. Among other
things, she claims:
The defendants owed a duty to plaintiff to use reasonable care and not to unreasonably create a condition of employment that foreseeably enhanced the risk of criminal attack.
The defendants breached said duty by unreasonably creating a condition of employment that foreseeably enhanced risk of criminal attack as follows:
22 a. Defendants created conditions of employment that were so fraught with danger that it was likely, or even probable, that the plaintiff would be subject to criminal attack by a third party;
b. Defendants’ employment conditions induced reliance by plaintiff on defendant to keep Gagne out of contact with plaintiff while he was at the New Hampshire facility;
h. Defendants’ employment conditions failed to provide adequate security;
i. Defendants’ employment conditions failed to provide adequate lighting;
Complaint at paras. 12-13 (emphasis supplied).
Given the factual allegations in Hall’s complaint, her
injuries necessarily arose “out of and in the course of
employment.” RSA 281-A:2 X I . As the LaBonte court concluded:
[C]onstruing plaintiff’s declaration as a whole most favorably to [her] admits of only one conclusion, that i s , that [her] injury resulted from the conditions and obligations of the employment. In other words, plaintiff’s declaration established as a matter of law that [her] injury resulted from the employer’s negligent supervision of his employees and was an
23 accidental injury arising out of and in the course of [plaintiff’s] employment and compensable under RSA ch 281.
Id. at 317 (citations and internal quotation marks omitted).
Conclusion
In light of the allegations set forth in her complaint
(which are accepted as true), plaintiff’s negligence claims
against NEBS, her employer, are, as a matter of law, barred by
the exclusivity provision of New Hampshire’s Workers’
Compensation Act. Accordingly, defendant’s motion to dismiss
(document n o . 3 ) is granted. Defendant’s request for oral
argument (document n o . 14) is denied as moot.
The Clerk of Court shall enter judgment in accordance with
this order and close the case.
SO ORDERED.
Steven J. McAuliffe United States District Judge April 2 9 , 2003
cc: Robert D. Hunt, Esq. Richard L . Alfred, Esq. Andrew D. Dunn, Esq.