# FILED
April 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION 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. Kilc rease, Jr., ) Chancellor HARRY B. WOODS PLUMBING ) COMPANY, INC., HAR PETH ) No. 01S01-9606-CH-00124 CONSTRUCTION CO., INC., AND ) TRAVELERS INS URANCE 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 REMAND ED HOLDER, J.2 OPINION
We granted this workers' compensation app eal to address two issues: (1) whether the decedent's death ar ose out of and in the course of employ ment; and (2) whether the decedent w as the initial aggr

essor; and if so, whether the aggressor doctrine precluded recovery. We find that the de cedent's death arose out of and in the course of employment. As to the second issue, w e hold the common law a

ggressor defense as it relates to w orkers' co mpensation cl aims under the Act is abolished in Tennessee and does no t bar the decedent's recovery.

FACTS

The decedent, h is nephew a nd his son ar rived at a house to perfor m a plumbing job. Charles Lan gley, Jr., was at the house performing floor renovations to the entry way when the decedent arrived. Langley had placed a sign on the front door indic ating that the entryw

ay should not be used. Langl ey further placed ta pe across the doorwa y between t he kitche n and the entryway.
The decedent, his nephew and his son entered the house from the rear. They ducked under the tape that Lang ley used to cordon off the entry way and proceeded to walk across the entryway floor

to gain access to the basement stairs. Langley then

approached the decedent's son w ith a knife and threatened to kill him. The decedent and Lang ley had a heated exchange concerning Langley's threat to ki ll the decedent's son. The proj ect supervisor inter vened and was able to diffus e the situ ation te mporaril y.3 The decedent, his nephew and his son left the ho use and walked toward their vehicles. The deced ent spoke briefly with his son and then began wal king toward Langley's van. The decedent apparently charged Langley and w as intercep ted by the project su pervisor who again att empted to interve ne. Langl ey, however, drew an automatic pistol and shot the dec edent five times. The decedent died as a result of the gunshot wounds.
The decedent's family filed for w orkers' 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 a ggressor 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. Co de 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 "arisin g out of" and "in the course of" employment comprise two separate requiremen ts. The phrase "in the course of" refers to the ti me, 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 ori gin. Id

.
The "course of employment" requirement is satisf ied when an injury occurs within the ti me and place limitations of the employ ment relationship and4 during an activity

that had some connection wit h the employee's job-rel ated functions. The decedent had arriv ed at a job site where a dw elling was being renovated. He entered the dw elling at which he w

as to perform a plumbing job. Langley was a w

orker present in the dw elling when the decedent arrived. The decedent, his son and his nephew walked across a floor that Langley was renovating to gain ac

cess 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 dece dent's employment.

We shall now focus on whether the deced ent's death arose out of his employment. An accident ari ses out of employment when ther e is a causal relationship between the empl oyment and the injury. Orman v. Willia ms Sonoma, Inc. , 803 S.W.2d 672, 67 6 (Tenn. 1991).

We believe that issues of whether assaul ts upon employees arise out of the scope of employment can best be di vided into three general classifications: (1) assaults with an "inherent connection" to employ ment such as disputes over performance, pay or terminati on; (2) assaults stemming from "inherently priv

ate" disputes imported into the employ ment setting from the claimant's domestic or private life and not exac erbated by the employment; and (3) assaults resulti ng from a "neutral force" such as random assau lts on employees by individuals outside the employment relati onship.

Assaults with an "inher ent 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 ov er job performance compensable); Whaley v. Patent5 Button Co. , 202 S.W.2d 649 (Tenn. 1947) (injuries inflic ted by ex-employees on employees while performi ng duties similar to tho se that had been performed by the ex-employee are compens able). Assaults stemming from "inherently privat e" disputes imported into the employ ment setting from the claimant's domestic or private life and not exac erbated by the employment ar e not compensable. See Brimhall V. Home Insurance C o. , 694 S.W.2d 931 (Tenn. 1985) (fight over use of personal items not compensable); White v. W hiteway Pharmacy, Inc. , 360 S.W.2d 12 (Tenn. 1962) (employee murdered on employer premises by nonemployee husband over domesti c dispute non-compensable). As saults resulting from a "neutral force" such as random assau lts may or may not be compensable depending on the facts and circums tances 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 dec edent and Langley origi nated in an argument concerning w ork that Langley w

as 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 employ ment setting and arose out of employ ment as contemplated by the Act.

The next issue with w

hich 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 agg ressor defense. Both the trial court and the workers'

compensation panel concluded the dec edent's death was non-compensable because "[t]he decedent was the aggressor since the altercation between the par ties had terminated before [the decedent ] charged Langley."6 One question that arises i n work-related assaul ts is whether compensation should be denied an inj ured worker who w as 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," juris dictions recognizi ng 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 benef its under the doctrine is that the worker's injury arose out of his ac t of aggression thereby negating the assertion that the injury arose out of the employ ment. Id

.
A majority of jurisdic

tions have rejected the ag gressor defense in the absence of expres s statuto ry language providing f or the def ense. Cou rts have reasoned that an aggressor defense is a purely fault-bas ed concept borrowed from tort law and has no place in compensation law. The chain of causation is not necessarily broken

by striking the fir

st blow provided that

the episode originated in the employ ment or the sole contact betw een 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 co nsidering it a "judici ally created bar to recovery imposed upon an entirely statutory remedial scheme." Geeslin v. Workmen's Compensat ion Comm'r , 294 S.E.2d 150, 152 (W . Va. 1982).
The primary purpose of our Wo rkers' Compensation Act ("Act") is to afford workers compensation for j ob-related injured reg ardless of fault. See generally Tenn. Code Ann. § 50-6-103; Partee v. Memphis Concr ete Pipe Co. , 2 95S. W. 68 (1927). The Act has further been i nterpreted as providing for a speedy trial so as to assure quick and efficient benefits to injured w orkers. Stovall v. General Shoe Corp. , 321 S.W.2d 559 (Tenn. 1959). Moreover, the Ac t is based on a7 mutual renunciation of common law rights and defenses. Tenn. Code Ann.§ 50- 6-108; see Liberty Mutual Insuranc e 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 dis approval 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 determi nation of who threw the fir st punch, whether a sufficient cooling -off period had occurred between separate incidents and whether a worker

reacted in excessiv

e manner is contrary to the quick and efficient administration of disabil ity benefits. See Geeslin , 294 S.E.2d at 153 (noting "difficulty in c

haracterizing one of the p articipants as the initi al aggressor and the other as the innocent v ictim when faced with an escalating dispute that culminates in physical

violence"). Moreov

er, the Act is purely

a creature of the general assembly, and any change in its structur

e must come from the general assembly and not from the courts

. Lindsey v. Hunt , 384 S.W.2d 441 (196 5), rev'd on other grounds , Bettis v. Tom Wade Gin , 810 S.W.2d 140 (Tenn. 1991). In the absence of an express stat utory 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 d ecedent's recovery. The case is reversed and remanded to the tr ial court for further proceedi ngs consistent with this opinion. The costs of this appeal shall be assessed aga inst the defendants for which execution may issue i f necess ary.8 Janice M. Holder, Justice
Panel: Anderson, C.J. Reid, J. Tomlin, S.J. Drowota, J., not parti cipating Birch, J., not particip

ating