Can an employer ever be liable for injuries sustained by a worker during a tornado? In the past, the answer to this question would have been different depending on whether the injury occurred in Missouri or in Kansas. That situation has changed: injuries occurring after the effective date of the 2011 changes to the Kansas Act (May 15, 2011) should undergo an analysis very similar to a Missouri claim. Case law on this question is limited in both states. However, the cases decided in Missouri that involved tornadoes or lightning strikes have applied the following approach.
1. If the worker is on duty and at his proper place of work when a tornado strikes and he is injured, his injury has occurred during the course and scope of his employment.
2. However, in order to be compensable, the injury must also have arisen out of the employment.
3. Ordinarily, a tornado or a lightning strike is considered an “act of God,” something unexpected over which an employer has no control. “An act of God had been defined as an occurrence due to natural causes against which ordinary skill and foresight is not expected to provide. . . An injury or death caused by an act of God is not compensable in a workmen’s compensation case unless it is shown that the character of the employment subjected the employee to hazards from the causative natural force greater than those to which the general public in the same vicinity is exposed.”
4. There are circumstances where an injury resulting from an “act of God” may be compensable. “In order to assert an ‘Act of God’ defense, the human actor must have exercised due care prior to the intervention of the super-human cause. . . When the result is in some part attributed to the participation of man, either through active intervention or neglect or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God.”
5. For example, Earl Lane was granted permanent partial disability benefits, temporary total benefits, and future medical as a result of injury he sustained from a lightning strike.
Mr. Lane worked for G & M Statuary as an assistant pourer, operating a concrete mixer. On the afternoon of June 10, 1999, the claimant was holding a metal hoe and standing on a wet floor approximately two feet from the open doorway of a metal building belonging to his employer. There was a loud clap of thunder, the claimant felt a jolt, and was thrown onto bags of concrete stacked against the wall behind him. The claimant sustained injury to his low back and suffered anxiety and depression following the incident. The floor the claimant stood on was made of concrete and contained reinforcing wire mesh. In addition, there was evidence that the metal building was not properly grounded and did not have a lightning rod to deflect lightning strikes. The Commission awarded benefits and the employer appealed. The Southern District affirmed the Award.
Not all such cases are compensable. In a much older case a worker was killed by a lightning strike but his claim was not found to be work related. Felden v. Horton & Coleman, Inc., 135 S.W.2d 1115 (Ct. App. 1939) In the case of Stone v. Blackmer & Post Pipe Company, 27 SW.2d 459 (Ct.App. 1930), a worker was killed in a tornado and his claim was not found to be compensable.
6. How can you determine whether an injury from a lightning strike, tornado, high winds, or other natural event is compensable?
The core question is, do the requirements of the job place the worker in a position where she is more exposed to the hazard (of lightning, tornado, etc.) than the general public would be? “Each case must therefore be considered on its own facts. But the standard for testing these facts is always the same, to-wit, Did the employment increase the danger?” Felden v. Horton & Coleman, Inc., 135 SW2d 1115 (Mo.App. 1939).
How do you answer this question? It may require expert testimony. In the Lane case, expert witnesses appeared on both sides. The employer presented evidence by its electrical contractor, and by an electrical engineer. The employer in the Felden case, where benefits for injury caused by lightning were denied, also offered the testimony of an electrical engineer. In the Stone case, where death in a tornado was not considered compensable, there was no expert testimony. The court relied on the fact that 73 people were killed in this tornado in concluding that the claimant was not subjected to a greater hazard than other people in the path of the tornado.
Any number of facts could become significant when an ALJ or the commission is analyzing an injury resulting from a tornado, such as:
- whether the employer’s facilities were adequately constructed
- whether the employer had a safety procedure for tornadoes
- whether safety procedures in place were actually followed
- whether supervisors directed the injured employee to the place where he was injured
7. Conclusion: generally a tornado is considered an act of God and injuries that result are not compensable. There are exceptions and whether an injury comes under the exception depends upon the specific facts of the situation.
Prior to May 15, 2011, under the existing Kansas case law, an injury resulting from a tornado would most likely be compensable. The Kansas Supreme Court ruled in 1979 that there are three types of risks that may arise in the workers’ compensation context: risks particular to the job; risks personal to the worker; and neutral risks. The Court held that neutral risks are compensable. Hensley v. Carl Graham Glass, 597 P.2d 641 (KS 1979). The Hensley case revolved around a worker who was killed by a sniper while engaged in work activity. The Court found the death compensable under the workers compensation act.
More recently, the Kansas Board of Appeals reached a similar result in a case where the worker was struck by lightning outside her workplace. The worker had gone to her car to retrieve a document and was in the parking lot when the building was struck by lightning. Austin v. Jayhawk Area Council Boy Scouts of America, Docket No. 1,012,416, March 2009.
The result would most likely be different under the new Kansas workers compensation law that became effective on May 15, 2011. Among the amendments to the Kansas Act is a change in the definition of “arising out of and in the course and scope of employment” found in K.S.A. 44-508:
(3) (A) The words ‘‘arising out of and in the course of employment” as used in the workers compensation act shall not be construed to include:
(i) Injury which occurred as a result of the natural aging process or by the normal activities of day-to-day living;
(ii) accident or injury which arose out of a neutral risk with no particular employment or personal character;
(iii) accident or injury which arose out of a risk personal to the worker; or
(iv) accident or injury which arose either directly or indirectly from idiopathic causes.
(B) The words ‘‘arising out of and in the course of employment’’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence. An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises owned or under the exclusive control of the employer or on the only available route to or from work which is a route involving a special risk or hazard connected with the nature of the employment that is not a risk or hazard to which the general public is exposed and which is a route not used by the public except in dealings with the employer. An employee shall not be construed as being on the way to assume the duties of employment, if the employee is a provider of emergency services responding to an emergency.
The legislature has eliminated neutral risks from compensability, specifically abrogating the Hensley decision. A second change to the law with some impact on this type of situation is the elimination of the premises doctrine. Previously, if an injury occurred which the worker was on the premises of the employer, the injury was compensable. Compensability will now require a fact based analysis and proof that there was a causal connection between the accident and the employment.
For both Missouri and Kansas, injuries caused by tornadoes will most likely be considered a non-compensable event. There may be some cases that are found compensable based on the specific circumstances surrounding the injury. The worker will have to be able to show that the work activity in some way exposed him to a greater risk of injury than that to which the general public was exposed.