FILED

April 6, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

FOR PUBLICATION

Filed: April 6, 1998

REBECCA FAY WOODS, )

HARRY B. WOODS, JR., AND )

SHIRLEY ANN WOODS, )

) DAVIDSON CHANCERY

PLAINTIFFS/APPELLANTS, ) NO. 94-2388-I

)

v. ) Hon. Irvin H. Kilcrease, Jr.,

) Chancellor

HARRY B. WOODS PLUMBING )

COMPANY, INC., HARPETH ) No. 01S01-9606-CH-00124

CONSTRUCTION CO., INC., AND )

TRAVELERS INSURANCE COMPANY,)

)

DEFENDANTS/APPELLEES. )

FOR APPELLANTS: FOR APPELLEES, Harpeth 

Construction Co., Inc. and Travelers

Othal Smith, Jr. Insurance Company:

Nashville

William G. McCaskill, Jr.

Taylor, Philbin, Pigue, Marchetti &

Bennett

Nashville

O P I N I O N

REVERSED AND REMANDED HOLDER, J.
2

OPINION

We granted this workers' compensation appeal to address two issues: (1) 

whether the decedent's death arose out of and in the course of employment; and

(2) whether the decedent was the initial aggressor; and if so, whether the

aggressor doctrine precluded recovery. We find that the decedent's death arose

out of and in the course of employment. As to the second issue, we hold the

common law aggressor defense as it relates to workers' compensation claims

under the Act is abolished in Tennessee and does not bar the decedent's

recovery.

FACTS

The decedent, his nephew and his son arrived at a house to perform a

plumbing job. Charles Langley, Jr., was at the house performing floor

renovations to the entryway when the decedent arrived. Langley had placed a

sign on the front door indicating that the entryway should not be used. Langley

further placed tape across the doorway between the kitchen and the entryway.

The decedent, his nephew and his son entered the house from the rear. 

They ducked under the tape that Langley used to cordon off the entryway and

proceeded to walk across the entryway floor to gain access to the basement

stairs. Langley then approached the decedent's son with a knife and threatened

to kill him. The decedent and Langley had a heated exchange concerning

Langley's threat to kill the decedent's son. The project supervisor intervened and

was able to diffuse the situation temporarily.
3

The decedent, his nephew and his son left the house and walked toward

their vehicles. The decedent spoke briefly with his son and then began walking

toward Langley's van. The decedent apparently charged Langley and was

intercepted by the project supervisor who again attempted to intervene. Langley,

however, drew an automatic pistol and shot the decedent five times. The

decedent died as a result of the gunshot wounds.

The decedent's family filed for workers' compensation benefits. The trial

court found that the decedent's death arose out of and in the course of his

employment. The trial court, however, held that the decedent was not entitled to

recover because he became the aggressor after the initial confrontation had

concluded. The trial court's judgment was affirmed by a workers' compensation

panel.

DISCUSSION

The Tennessee Workers' Compensation Act ("Act"), Tenn. Code Ann.

§ 50-6-101 et seq., provides the exclusive remedies for workers sustaining workrelated injuries. Tenn. Code Ann. § 50-6-108. An employee's right to recover

under the Act requires a finding that the injury arose "out of and in the course of

employment." Tenn. Code Ann. § 50-6-102(5). The phrases "arising out of" and

"in the course of" employment comprise two separate requirements. The phrase

"in the course of" refers to the time, place and circumstances under which the

injury occurred. McAdams v. Canale, 294 S.W.2d 696, 699 (Tenn. 1956). The

phrase "arising out of" refers to an injury's origin. Id.

The "course of employment" requirement is satisfied when an injury

occurs within the time and place limitations of the employment relationship and
4

during an activity that had some connection with the employee's job-related

functions. The decedent had arrived at a job site where a dwelling was being

renovated. He entered the dwelling at which he was to perform a plumbing job. 

Langley was a worker present in the dwelling when the decedent arrived. The

decedent, his son and his nephew walked across a floor that Langley was

renovating to gain access to the basement. Langley became irate and

threatened to kill the decedent's son with a carpentry knife. The confrontation

ensued until the decedent was shot at the job site outside of the dwelling. 

Accordingly, the decedent's death occurred during the course of the decedent's

employment.

We shall now focus on whether the decedent's death arose out of his

employment. An accident arises out of employment when there is a causal

relationship between the employment and the injury. Orman v. Williams

Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).

We believe that issues of whether assaults upon employees arise out of

the scope of employment can best be divided into three general classifications: 

(1) assaults with an "inherent connection" to employment such as disputes over

performance, pay or termination; (2) assaults stemming from "inherently private"

disputes imported into the employment setting from the claimant's domestic or

private life and not exacerbated by the employment; and (3) assaults resulting

from a "neutral force" such as random assaults on employees by individuals

outside the employment relationship.

Assaults with an "inherent connection" to employment are compensable.

See W.S. Dickey Mfg. Co. v. Moore, 347 S.W.2d 493 (Tenn. 1961) (injuries

arising out of dispute over job performance compensable); Whaley v. Patent
5

Button Co., 202 S.W.2d 649 (Tenn. 1947) (injuries inflicted by ex-employees on

employees while performing duties similar to those that had been performed by

the ex-employee are compensable). Assaults stemming from "inherently private"

disputes imported into the employment setting from the claimant's domestic or

private life and not exacerbated by the employment are not compensable. See

Brimhall V. Home Insurance Co., 694 S.W.2d 931 (Tenn. 1985) (fight over use of

personal items not compensable); White v. Whiteway Pharmacy, Inc., 360

S.W.2d 12 (Tenn. 1962) (employee murdered on employer premises by nonemployee husband over domestic dispute non-compensable). Assaults resulting

from a "neutral force" such as random assaults may or may not be compensable

depending on the facts and circumstances of the employment. See Beck v.

State, 779 S.W.2d 367 (Tenn. 1989) (where employment necessarily exposes

employee to public risks, random assault from third party is compensable).

The altercation between the decedent and Langley originated in an

argument concerning work that Langley was performing at the decedent's job

site. Moreover, the entire focus of the dispute was apparently related to the

employment setting. We, therefore, find that the decedent's death had an

"inherent connection" to the employment setting and arose out of employment as

contemplated by the Act.

The next issue with which we are confronted is: (1) whether the

decedent was an initial aggressor; and, if so, (2) whether the decedent's death

was rendered non-compensable by an initial aggressor defense. Both the trial

court and the workers' compensation panel concluded the decedent's death was

non-compensable because "[t]he decedent was the aggressor since the

altercation between the parties had terminated before [the decedent] charged

Langley."
6

One question that arises in work-related assaults is whether

compensation should be denied an injured worker who was an aggressor. See 1

Larson, Workmen's Compensation Law 11.15(a) (1990). While "abolition of the

aggressor defense is one of the most rapid doctrinal reversals . . . in

compensation law," jurisdictions recognizing the doctrine deny benefits despite

the fact that the injury in dispute was work-related. See id. at § 11.15(c). A

common rationale for denial of benefits under the doctrine is that the worker's

injury arose out of his act of aggression thereby negating the assertion that the

injury arose out of the employment. Id.

A majority of jurisdictions have rejected the aggressor defense in the

absence of express statutory language providing for the defense. Courts have

reasoned that an aggressor defense is a purely fault-based concept borrowed

from tort law and has no place in compensation law. The chain of causation is

not necessarily broken by striking the first blow provided that the episode

originated in the employment or the sole contact between the disputants was

employment-related. See generally Triad Painting Co. v. Blair, 812 P.2d 638

(Colo. 1991); Springston v. IML Freight, Inc., 704 P.2d 394 (Kan. App. 1985).

One state has rejected the defense considering it a "judicially created bar to

recovery imposed upon an entirely statutory remedial scheme." Geeslin v.

Workmen's Compensation Comm'r, 294 S.E.2d 150, 152 (W. Va. 1982).

The primary purpose of our Workers' Compensation Act ("Act") is to afford

workers compensation for job-related injured regardless of fault. See generally

Tenn. Code Ann. § 50-6-103; Partee v. Memphis Concrete Pipe Co., 295 S.W.

68 (1927). The Act has further been interpreted as providing for a speedy trial

so as to assure quick and efficient benefits to injured workers. Stovall v. General

Shoe Corp., 321 S.W.2d 559 (Tenn. 1959). Moreover, the Act is based on a
7

mutual renunciation of common law rights and defenses. Tenn. Code Ann. § 50-

6-108; see Liberty Mutual Insurance Co., v. Stevenson, 368 S.W.2d 760 (Tenn.

1963) (noting Act is complete substitute for previous remedies in tort).

We find that the Act does not explicitly provide for an initial aggressor

defense. The aggressor defense in Tennessee, therefore, is a common law

creation that introduces a fault-based concept into a comprehensive statutory

scheme designed not to analyze culpability but to allocate cost and ensure

compensation. See Springston, 704 P.2d at 398 (holding disapproval of

employee's misconduct is not grounds for frustrating the main purpose of

workers' compensation which is to prevent dependency of the claimant and his

family). An analysis requiring a determination of who threw the first punch,

whether a sufficient cooling-off period had occurred between separate incidents

and whether a worker reacted in excessive manner is contrary to the quick and

efficient administration of disability benefits. See Geeslin, 294 S.E.2d at 153

(noting "difficulty in characterizing one of the participants as the initial aggressor

and the other as the innocent victim when faced with an escalating dispute that

culminates in physical violence"). Moreover, the Act is purely a creature of the

general assembly, and any change in its structure must come from the general

assembly and not from the courts. Lindsey v. Hunt, 384 S.W.2d 441 (1965),

rev'd on other grounds, Bettis v. Tom Wade Gin, 810 S.W.2d 140 (Tenn. 1991). 

In the absence of an express statutory authorization, we hold the common law

aggressor defense as it relates to workers' compensation claims under the Act is

abolished in Tennessee and does not bar the decedent's recovery. The case is

reversed and remanded to the trial court for further proceedings consistent with

this opinion. The costs of this appeal shall be assessed against the defendants

for which execution may issue if necessary.
8

Janice M. Holder, Justice

Panel:

Anderson, C.J.

Reid, J.

Tomlin, S.J.

Drowota, J., not participating

Birch, J., not participating