In its recent decision in Hilton v. Martin, 275 Va. 176, 654 S.E.2d 571 (2008), the Supreme Court of Virginia revisited one of the classic issues in civil tort litigation in Virginia -- the question whether the "exclusive remedy" provision of the Virginia Workers' Compensation Act precludes a private civil action for damages. The context is one that arises with some frequency: Intentional conduct that might be characterized as assault or other volitional behavior. And the key issue is also one that arises in a large range of cases — whether the cause of action asserted by a private plaintiff "arises out of the employment" of the victim as that term is interpreted under Va. Code § 65.2-101.
In an action to recover damages for personal injury and death resulting from an apparent assault on the victim by a fellow employee, the Supreme Court holds that a trial judge erred in concluding that the Virginia Workers' Compensation Act provided the exclusive remedy for the claims. Applying the "actual risk test," the Court concludes that the assault on this particular victim had no relationship with her status as an employee. On bizarre facts noted below, the Court found that — whether the tortfeasor's behavior was intended as flirtatious, merely playful, or as harassment — the assault was "purely personal" and thus the resulting injury and death did not "arise out of the employment" under Va. Code § 65.2-101. The judgment was reversed and the case was remanded for further proceedings in the pending civil action for wrongful death.
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