Present: All the Justices 

MICHELLE M. BUTLER 

 OPINION BY 

v. Record No. 050022 JUSTICE LAWRENCE L. KOONTZ, JR. 

 November 4, 2005 

SOUTHERN STATES 

 COOPERATIVE, INC., ET AL. 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

J. Howe Brown, Jr., Judge Designate 

In this appeal, the dispositive issue is whether the 

Circuit Court of Loudoun County (trial court) erred in 

sustaining special pleas in bar to a motion for judgment filed 

by an employee against her co-employee and employer on the 

ground that the assault for which damages were sought was an 

injury by accident that arose out of and in the course of the 

employment. Based on the facts as alleged in the motion for 

judgment, the trial court ruled that the employee’s common-law 

action is barred by the exclusivity provision of the Workers’ 

Compensation Act provided by Code § 65.2-307, and that the 

exceptions to that exclusivity provision provided by Code 

§ 65.2-301 do not apply. 

BACKGROUND 

The trial court heard no evidence in support of the special 

pleas in bar. Thus, we consider the allegations in the motion 

for judgment to resolve the issue presented and take the facts 

as alleged therein as true. See Safeway, Inc. v. DPI 
2

Midatlantic, Inc., 270 Va. 285, 286 n.1, 619 S.E.2d 76, 77 n.1 

(2005); Niese v. City of Alexandria, 264 Va. 230, 233, 564 

S.E.2d 127, 129 (2002). The following recitation of the 

pertinent facts adheres to this rule of appellate review. 

In May 2000, Michelle M. Butler began working at the 

Middleburg, Virginia retail store of Southern States 

Cooperative, Inc. (Southern States), a business cooperative that 

specializes in selling agricultural supplies. Butler’s 

responsibilities included operating the cash register, 

scheduling and making deliveries, opening and closing the store, 

performing inventory checks, making flyers and pricing signs, 

ordering supplies, filing and other general duties. Butler’s 

immediate supervisor and manager of the store was Dan Virts. 

In July 2003, Clarence W. Allen was employed by Southern 

States to work at the Middleburg store as a delivery person. 

Southern States was aware at the time it hired Allen that he had 

been convicted of felony rape and had a felony parole violation 

on his criminal record. Allen frequently made personal comments 

to Butler, including comments that he wanted “to date” her and 

that he “always got what he wanted.” 

On August 11, 2003, owing to the heavy volume of business 

that day, Butler was required to assist Allen in making a 

delivery of feed to a customer. When Butler entered the cab of 
3

the delivery truck, she tucked her uniform shirt, which was 

missing two buttons, into her pants. Butler was wearing a 

t-shirt under her uniform shirt. Allen offered to fix Butler’s 

shirt for her. When Butler declined, Allen told her that she 

was “getting him all excited” and he pointed to a “bulge” in his 

pants as proof of his excitement. Allen then ran his hand 

through Butler’s hair, slowed down the truck, and leaned over 

and licked Butler’s ear. Ultimately, Allen stopped the truck, 

removed his seatbelt, leaned in, and grabbed Butler’s face with 

his hands. He then attempted to kiss Butler on the lips, 

holding onto her face the entire time. Butler was frightened 

and protested. Allen told her, “well, you know what I want.” 

Butler continued to pull away and resist until Allen ceased his 

advances. During this incident Allen told Butler that “you just 

don’t know me like that yet.” 

Upon returning to the store, Butler continued to be 

frightened and nervous and began to feel ill. She left the 

store and walked to a nearby bank where her mother was employed. 

On her mother’s advice, Butler reported the incident to the 

police. Subsequently, as a result of his actions, Allen was 

convicted of misdemeanor assault and battery pursuant to Code 

§ 18.2-57(A). 
4

On April 29, 2004, Butler filed a motion for judgment in 

the trial court against Southern States and Allen. Butler 

sought to recover damages from Southern States under claims of 

negligent hiring and retention of Allen, respondeat superior 

liability for Allen’s assault and battery, and intentional 

infliction of emotional distress. She sought damages from Allen 

under claims of assault and battery and intentional infliction 

of emotional distress. 

Allen and Southern States filed grounds of defense denying 

the allegations contained in Butler’s motion for judgment. 

Southern States also filed a special plea in bar asserting that 

the exclusivity provision of the Virginia Workers’ Compensation 

Act, Code § 65.2-307, barred Butler’s claims because her alleged 

injuries arose out of and in the course of her employment. Allen 

also filed a similar special plea in bar.1

 

1

 Southern States also filed a demurrer challenging the 

claims for negligent hiring and retention and intentional 

infliction of emotional distress. Allen also demurred to the 

emotional distress claim. The trial court overruled the 

demurrers. Southern States and Allen noted their objections to 

this ruling on the final order. In its brief in opposition to 

Butler’s petition for appeal, Southern States assigned crosserror to the overruling of the demurrer with respect to the 

emotional distress claim. Allen in his brief purported to adopt 

Southern States argument on that issue, though he failed to make 

an express assignment of cross-error. In the order awarding 

Butler an appeal, this Court refused Southern States’ assignment 
5

Butler filed two pre-argument briefs in the trial court 

opposing the special pleas in bar. In the first brief, Butler 

contended that the exclusivity provision of the Workers’ 

Compensation Act did not apply on the facts of her case because 

Allen’s assault upon her was personal in nature and, thus, she 

contended that her injury did not arise out of her employment with 

Southern States. In the second brief, Butler also contended that 

Code § 65.2-301 would have application on the facts of her case. 

In relevant part, Code § 65.2-301 provides: 

A. Any employee who, in the course of employment, 

is sexually assaulted, as defined in §§ 18.2-61 

[Rape], 18.2-67.1 [Forcible Sodomy], 18.2-67.3 

[Aggravated Sexual Battery], or § 18.2-67.4 [Sexual 

Battery], and promptly reports the assault to the 

appropriate law-enforcement authority, where the 

nature of such employment substantially increases the 

risk of such assault, upon a proper showing of damages 

compensable under this title, shall be deemed to have 

suffered an injury arising out of the employment and 

shall have a valid claim for workers’ compensation 

benefits. 

B. Notwithstanding the provisions of this title, 

an employee who is sexually assaulted and can identify 

the attacker may elect to pursue an action-at-law 

against the attacker, even if the attacker is the 

assaulted employee’s employer or co-employee, for full 

damages resulting from such assault in lieu of 

pursuing benefits under this title, and upon repayment 

of any benefits received under this title. 

 

of cross-error. Accordingly, the judgment of the trial court 

overruling the demurrers is not at issue in this appeal and 

remains undisturbed. 
6

On September 9, 2004, the trial court conducted a hearing on 

the special pleas in bar. After hearing argument of counsel, the 

trial court ruled from the bench that “[Code §] 65.2-301 has no 

application to this case. This is not a sexual assault as defined 

by those [criminal code sections] particularly mentioned [in the 

statute.]” The trial court further ruled that “[t]his is a 

classic example of a Workers’ Compensation Act situation.” Butler 

sought leave of the trial court to file an amended motion for 

judgment. The trial court denied the motion. 

In a final order dated October 4, 2004, the trial court, 

adopting by reference its ruling made during the September 9, 2004 

hearing, sustained the special pleas in bar and dismissed Butler’s 

motion for judgment with prejudice. We awarded Butler this 

appeal. 

DISCUSSION 

Butler asserts error in the judgment of the trial court 

sustaining the special pleas in bar on two grounds. First, she 

contends that the trial court erred in finding that Allen’s 

assault upon her is an injury by accident arising out of and in 

the course of her employment bringing her cause of action within 
7

the ambit of the exclusivity provision of Code § 65.2-307.2 

Second, she contends that even if her injury is otherwise 

compensable under the Workers’ Compensation Act, the trial court 

erred in finding that the statutory exceptions to Code § 65.2-

307 found in Code § 65.2-301 permitting an election of remedies 

do not apply on the facts of this case. Because Butler’s first 

contention is dispositive of the question whether the trial 

court erred in sustaining the special pleas in bar, we confine 

our discussion to that issue.3

Our resolution of the dispositive issue in this case is 

guided by well-established principles such that a comprehensive 

review and recitation of our numerous prior cases is 

unnecessary. The Virginia Workers’ Compensation Act applies to 

 

2

 Code § 65.2-307(A) provides that: 

The rights and remedies herein granted to an employee 

when his employer and he have accepted the provisions 

of this title respectively to pay and accept 

compensation on account of injury or death by 

accident shall exclude all other rights and remedies 

of such employee, his personal representative, 

parents, dependents or next of kin, at common law or 

otherwise, on account of such injury, loss of service 

or death. 

3

 Butler also assigned error to the trial court’s denial of 

her motion for leave to file an amended motion for judgment. In 

light of our resolution of the principal issue presented in this 

appeal, the failure to permit the filing of the amended motion 

for judgment is moot, and we need not address that issue. 
8

injuries by accident “arising out of and in the course of” an 

individual’s employment. Code § 65.2-300. When an employee 

sustains such an injury, the Act provides the sole and exclusive 

remedy available against the employer. Rasnick v. The Pittston 

Co., 237 Va. 658, 660, 379 S.E.2d 353, 354 (1989). To the 

extent that an employee’s injury does not come within the ambit 

of the Act, the employee’s common-law remedies against his 

employer are preserved unimpaired. Adams v. Alliant 

Techsystems, Inc., 261 Va. 594, 599, 544 S.E.2d 354, 356 (2001); 

Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 798, 20 S.E. 

530, 534 (1942). An injury comes within the ambit of the Act 

only if the injury satisfies both the “arising out of” and the 

“in the course of” prongs of the statutory requirements of 

compensability. With regard to the “arising out of” prong, we 

apply the “actual risk” test rather than the “positional risk” 

test, where simply being injured at work is sufficient to 

establish compensability, to determine whether a particular 

injury satisfies these statutory requirements of compensability. 

County of Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 

73, 75-76 (1989). 

In the present case, it is beyond question in the context 

of determining compensability under the Act that, as alleged in 

her motion for judgment, the physical assault upon Butler arose 
9

“in the course” of her employment with Southern States. When 

the assault occurred she was in the process of making an 

authorized delivery of feed for her employer. The dispute 

between the parties and consequently the necessary focus of our 

analysis is whether that assault also arose “out of” Butler’s 

employment. 

“A physical assault may constitute an ‘accident’ within the 

meaning of the Act when it appears that it was the result of an 

actual risk arising out of the employment.” Reamer v. National 

Service Industries, 237 Va. 466, 470, 377 S.E.2d 627, 629 

(1989). And we have held that such an accident arises out of 

the employment if there is a causal connection between the 

employee’s injury and the conditions under which the employer 

requires the work to be done. See, e.g., Plummer v. Landmark 

Communications, Inc., 235 Va. 78, 87, 366 S.E.2d 73, 77 (1988); 

R & T Investments, Ltd. v. Johns, 228 Va. 249, 255, 321 S.E.2d 

287, 290-91 (1984); Lynchburg Steam Bakery v. Garrett, 161 Va. 

517, 522-23, 171 S.E. 493, 495 (1933). 

Southern States principally relies upon this line of cases 

to assert essentially that Butler’s allegations establish that 

by hiring Allen in light of his prior criminal convictions, 

Southern States had knowingly exposed all of its female 

employees to a safety risk and, therefore, there was a causal 
10

connection between Butler’s injury and the conditions under 

which Butler was required to work. This reliance is misplaced. 

We have consistently held that when an assault “is personal 

to the employee and not directed against [her] as an employee or 

because of [her] employment, the injury does not arise out of 

the employment.” Richmond Newspapers v. Hazelwood, 249 Va. 369, 

373, 457 S.E.2d 56, 58 (1995); see also Reamer, 237 Va. at 471, 

377 S.E.2d at 630; Metcalf v. A. M. Express Moving Systems, 

Inc., 230 Va. 464, 470, 339 S.E.2d 177, 181 (1986); City of 

Richmond v. Braxton, 230 Va. 161, 165, 335 S.E.2d 259, 262 

(1985). 

In the present case, Butler’s allegations, taken as true 

for purposes of our review, clearly establish that Allen’s 

assault on Butler was personal to Butler and not directed 

against her as an employee or because of her employment. 

Allen’s actions were the result of his asserted personal 

attraction to Butler. Allen’s actions were in no way in 

furtherance of Southern States’ business and, therefore, 

Butler’s injury cannot fairly be traced to her employment as a 

contributing proximate cause. Our prior decisions regarding 

personal assaults dictate the conclusion that the assault on 

Butler did not arise “out of” her employment in the context of 

the Workers’ Compensation Act. 
11

Southern States maintains that Butler’s allegations of 

respondeat superior liability in her motion for judgment 

necessarily cause her claim to be barred under the Act. We 

disagree. To plead respondeat superior liability, a plaintiff 

must allege that the injury caused by the act of an employee, 

such as Allen in this case, occurred within the scope of the 

employment relationship. This is directly analogous to an 

injury “in the course of” an individual’s employment for 

purposes of the exclusivity analysis under the Act. However, 

this is only one prong of that analysis. The exclusivity 

provision of Code § 65.2-307 applies only to an injury both 

“arising out of” and “in the course of” an individual’s 

employment. Code § 65.2-300. These requirements for 

compensability of a claim and, in turn, for the exclusivity of 

the remedy under the Act, are not synonymous. R & T 

Investments, 228 Va. at 252, 321 S.E.2d at 289. 

As we have demonstrated, the allegations in Butler’s motion 

for judgment, taken as true, would establish that Allen’s 

assault did not arise “out of” the employment. Consequently, 

Butler did not plead herself into the bar of Code § 65.2-307 by 

her allegations of respondeat superior liability against 

Southern States. Accordingly, we hold that in the procedural 

posture of this case, the trial court erred in sustaining the 
12

special pleas in bar and dismissing Butler’s motion for judgment 

with prejudice. 

CONCLUSION 

For these reasons, we will reverse the judgment of the 

trial court sustaining the special pleas in bar and remand the 

case to the trial court for further proceedings consistent with 

the views expressed in this opinion. 

Reversed and remanded.