Nebraska Court of Appeals in Maradiaga v. Specialty Finishing, declines to broaden the application of the Positional Risk Doctrine
The Nebraska Court of appeals recently issued an opinion which confirms yet again that an employee engaged in an “everyday activity” must offer some evidence that there was an employment-related risk which contributed to the accident, to prove that the accident “arose out of” the employee’s employment. In Yessica Panameno Maradiaga v. Specialty Finishing and Travelers Indemnity Company, 24 Neb. App. 199, the trial court found as a matter of fact that the employee was exiting her car in her employer’s parking lot before her shift began, when she took a step, twisted her ankle and felt pain. She was found to have a broken ankle. The trial court further found that she “was merely walking. She did not trip. There was nothing in the parking lot that created a hazard for her. She was not carrying anything heavy that stressed her body or her ankle, specifically.” The trial court therefore dismissed the claim for the reason that the employee’s accident did not “arise out of” her employment.
The “Arising out of” component of an employee’s burden of proof addresses whether an employee’s accident resulted from employment related risks; risks that are distinctly associated with his or her job. This is now the third case in which the Court of Appeals has stated that where the facts do not involve a “purely unexplained fall” or a “neutral risk”—one where any other person then and there would have met with the same injury such as a victim of a tornado or stray bullet—the employee must prove that there was employment-related risk which contributed to the accident. In Carter v. Becton-Dickinson, 8 Neb. App. 900, 907, 603 N.W.2d 469, 474 (1999), the Nebraska Court of Appeals held that nonstrenuous walking is the “epitome of a nonemployment risk”, and dismissed a claim by an employee who suffered a displaced leg fracture while simply walking. In Lucas v. Anderson Ford, 13 Neb. App. 133, 689 N.W.2d 354 (2004), the Court of Appeals held that “standing up from a seated position certainly does not constitute any greater risk”, referring to “nonstrenuous walking”. In Maradiago, the Court of Appeals affirmed the trial court’s dismissal of the employee’s claim, stating that “there is no evidence that the everyday activity of exiting a car, while carrying nothing heavier than a small lunchbox, was a risk of Maradiaga’s employment.”
Know that it takes very little for the employee to prove the requisite contribution of an employment-related risk when the employee is engaged in a so-called “everyday activity”. For example, a slick floor, wrinkle in a carpet or some defect in a walkway causing one to fall while walking is probably enough. Had Maradiago proven that her ankle turned as a result of slipping on a rock would likely have been sufficient proof of an employment risk. But in the absence of any employment-related risk, an employee engaged in an “everyday activity” who suffers an accident causing injury, will not be able to meet the employee’s burden of proof that the accident “arose out of” the employee’s employment.
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