“Zone of Special Danger” Under Defense Base Explained
“Zone of Special Danger” Under Defense Base Explained
Grocery Shopping Qualifies
Battelle Mem. Inst. v. Dicecca, 2015 U.S. App. LEXIS 11587, 2015 WL 4072072 (1st Cir. July 6, 2015)
By: Arthur Crais
The employee who was stationed in Georgia (the nation in the Caucasus) as a facility engineer was killed in a vehicular accident when the taxi in which he was a passenger was struck by a drunk driver while the employee was going to a large grocery store. The store was considered the only one in the area which sold “safe” food. The employer did not provide housing or a restaurant but gave employees housing and utility allowances as well as taxi vouchers which could be used within a 25 km radius (about 15 miles) of the city (Tbilisi, Georgia). The decedent also received a 25% supplemental salary as “hardship pay.” The Administrative Law Judge held for the widow which was affirmed by the Benefits Review Board. Former Associate Justice Souter, sitting by designation, was the author of the unanimous panel opinion affirming the award of benefits to the widow.Justice Souter acknowledged the paucity of appellate court decisions on the meaning of the doctrine known as the “zone of special danger” under the Defense Base Act adopted by the U.S. Supreme Court in O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 507, 71 S. Ct. 470, 95 L. Ed. 483 (1951) and proceeded to review the Supreme Court jurisprudence on the issue, namely, O'Leary, O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S. Ct. 1012, 13 L. Ed. 2d 895 (1965) and Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 86 S. Ct. 153, 15 L. Ed. 2d 21 (1965)From these and the few decisions of courts of appeals, he stated that “we can extract some general principles creating a legal texture, though not a precise rule.” (2015 U.S. App. LEXIS 11587 at 11)First, the zone-of-special-danger doctrine under the DBA works an expansion of traditional employer liability to include coverage for injuries without any direct causal connection to an employee's particular job or to any immediate service for the employer. They must simply fall within foreseeable risks occasioned by or associated with the employment abroad. (id. at 11-12)Second, the determination of foreseeable risk is necessarily specific to context and thus turns on the totality of circumstances. (id. at 12)Third, and relatedly, in this corner of the law,HN4 the agency is given deference in applying the apposite doctrine to the particular case at hand. Accordingly, the agency's rational determination is treated as far as possible as a finding of fact, for which a reviewing court considers only whether the agency had a substantial basis in the record. (id. at 12-13)The employer maintained that there must be a nexus between the employment and the accident which can only be satisfied in two ways: “(1) when the injury occurred during a reasonable recreational activity in an isolated place with limited social opportunities; or (2) where the site of work presented conditions enhancing the risk of injury to some appreciable degree beyond the domestic norm.” (id. at 15) The activity here fell within neither category. The court rejected these exclusive categories.Acknowledging there must be a connection or nexus between the employment and the injury, “the injury must arise out of foreseeable risks associated with employment abroad.” (id. at 18) If recreational social activity in a foreign venue is a necessity and incident to overseas employment, then “grocery shopping is a necessity, it too should be considered an incident to the employment.” (id. at 18) The decision in favor of awarding death benefits was affirmed.
