Hall v . New England Business CV-03-083-M 04/29/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tashia Hall, Plaintiff

v. Civil N o . 03-83-M Opinion N o .

New England Business Service, Inc., Defendant

O R D E R

Tashia Hall brings this action against her former employer,

New England Business Service, Inc. (“NEBS”), claiming that NEBS’s

negligence proximately caused her to be attacked and abducted by

another NEBS employee. She seeks damages for injuries she

sustained as a result of that assault. NEBS moves to dismiss

both counts in Hall’s complaint, on grounds that, as a matter of

law, they do not state viable claims. See Fed. R. Civ. P.

12(b)(6). Hall objects.

Standard of Review

When ruling on a motion to dismiss under Fed. R. Civ. P.

12(b)(6), the court must “accept as true the well-pleaded factual

allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff’s favor and determine whether the

complaint, so read, sets forth facts sufficient to justify

recovery on any cognizable theory.” Martin v . Applied Cellular

Tech., Inc.,

, 6 (1st Cir. 2002). Dismissal is

appropriate only if “it clearly appears, according to the facts

alleged, that the plaintiff cannot recover on any viable theory.”

Langadinos v . American Airlines, Inc.,

8 , 69 (1st Cir.

2000). See also Gorski v . N.H. Dept. of Corrections,

(1st Cir. 2002) (“The issue presently before u s ,

however, is not what the plaintiff is required ultimately to

prove in order to prevail on her claim, but rather what she is

required to plead in order to be permitted to develop her case

for eventual adjudication on the merits.”) (emphasis in

original).

Background

Accepting the allegations set forth in Hall’s complaint as

true, the material facts appear as follows. During 2002, NEBS

employed Hall as a printing press operator. Until November of

that year, Hall and another employee of NEBS - Mark Gagne - were

romantically involved. During the course of that relationship,

2 Gagne threatened and assaulted Hall, prompting her to obtain a

temporary domestic violence restraining order against him.

Hall told representatives of NEBS that she had obtained a

restraining order against Gagne and she “expressed concern about

Gagne being on the business premises during the same times that

[she] was on the premises.” Complaint at para. 5 . NEBS

responded by implementing a policy that prohibited Gagne from

having any contact with Hall during working hours. When Gagne

later violated that policy, Hall informed her supervisor. NEBS

responded by: (1) transferring Gagne to an NEBS facility in a

neighboring state; and (2) informing Hall that it would provide a

security officer on the premises (during certain designated

hours) for her protection.

Approximately six weeks after transferring Gagne, however,

NEBS informed Hall that it planned to transfer him back to the

plant at which she worked. Hall says she immediately expressed

concern and reminded NEBS officials of the threats that Gagne had

leveled against her. Nevertheless, NEBS transferred Gagne back

to the New Hampshire facility. Approximately 10 days later, Hall

3 told representatives of NEBS that Gagne had “been glaring at her

in a menacing fashion that day and provided [NEBS] with

additional copies of the [restraining order].” Complaint at

para. 8 .

The following day, Hall was dismissed from work early due to

inclement weather. While in the NEBS parking lot clearing her

car of snow, Hall was approached by Gagne, who was driving a snow

plow owned by NEBS. According to Hall’s complaint, “Gagne

approached [her] in a company truck, attacked her, assaulted her

with a sharp weapon, threatened her life and person, and forced

her into the company truck, and abducted her.”

at para. 9.

As a result of the attack, Hall suffered several stab and bite

wounds.

Upon learning of the attack, NEBS notified its workers’

compensation insurance carrier. It then provided Hall with forms

necessary to complete a claim for workers’ compensation benefits.

But, by letter dated January 1 7 , 2003, Hall’s attorney notified

NEBS that she was not pursing a claim for workers’ compensation

4 and was, instead, exploring the possibility of filing a civil

(negligence) suit against NEBS.

Meanwhile, Bert Sell, a claims investigator hired by NEBS’s

workers’ compensation insurance carrier (who was apparently

unaware that Hall did not intend to seek workers’ compensation

benefits), looked into the assault and concluded that Hall’s

injuries fell outside the scope of New Hampshire’s Workers’

Compensation Law, N.H. Rev. Stat. Ann. (“RSA”) ch. 281-A (the

“Act”). In a letter dated January 2 7 , 2003 (i.e., 10 days after

Hall had already notified NEBS that she did not intend to pursue

a claim for workers’ compensation benefits), Sell informed Hall

of his conclusions. Plaintiff’s memorandum (document n o . 7 ) at

11-12.

This suit followed, in which Hall brings two claims against

NEBS: negligence (count 1 ) and negligent hiring, retention, or

supervision (count 2 ) .

5 Discussion

The sole question presented by NEBS’s motion to dismiss is

whether the Act’s so-called exclusivity provisions preclude Hall

from seeking to recover directly from her employer, NEBS. The

relevant portion of the Act provides that:

An employee of an employer subject to this chapter shall be conclusively presumed to have accepted the provisions of this chapter and, on behalf of the employee or the employee’s personal or legal representatives, to have waived all rights of action whether at common law or by statute or provided under the laws of any other state or otherwise:

(a) Against the employer or the employer’s insurance carrier . . . .

RSA 281-A:8 I (emphasis supplied). See also Karch v . BayBank

FSB,

(2002) (noting that an employee who is

entitled to compensation under the Act may not bring a separate

tort action against her employer and holding, “Indeed, the

Workers’ Compensation Law expressly provides that an employee

subject to that chapter waives the right to bring such a separate

action in exchange for the acceptance of benefits.”).

6 I. Hall’s Estoppel Claim.

As an initial matter, Hall claims that NEBS is estopped from

asserting that the exclusivity provisions of the Act bar her

negligence claims. Specifically, she says because NEBS (through

Mr. Sell, the agent of NEBS’s insurance carrier) issued a formal

“Memo of Denial of Workers’ Compensation Benefits,” in which he

concluded that Hall was injured in a “domestic dispute that was

not work related,” NEBS cannot now assert that her negligence

claims are precluded by the Act’s exclusivity provisions.

As to that particular argument, Hall relies on two documents

that she has attached to her memorandum of law (but which are not

part of her complaint). NEBS filed a reply memorandum, to which

it attached additional documents, as well as an affidavit. Then,

most recently, Hall submitted a surreply memorandum, attached to

which is an affidavit executed by her attorney, describing

certain communications he had with M r . Sell. Because both parties

have submitted documents upon which they ask the court to rely

and which are not a part of Hall’s complaint, and because neither

party has objected to the submissions made by the other1 (nor has

1 NEBS initially asserted that Hall had not properly authenticated two documents attached to her memorandum of law in

7 either party sought additional time to further supplement the

record), the court will, as to the “estoppel” issue, treat NEBS’s

motion as one for summary judgment. See Fed. R. Civ. P. 12(b)

(“If, on a motion asserting the defense numbered (6) to dismiss

for failure of the pleading to state a claim upon which relief

can be granted, matters outside the pleading are presented to and

not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 5 6 . ” ) . See

also Pure Distributors, Inc. v . Baker,

5 0 , 154 (1st

Cir. 2002); Garita Hotel Ltd. P’ship. v . Ponce Federal Bank,

F.S.B.,

5 , 18-19 (1st Cir. 1992).

In support of her estoppel argument, Hall says NEBS (through

Mr. Sell, the agent of NEBS’s insurance carrier) knowingly made

representations (i.e., that her injuries are not compensable

under the A c t ) , upon which she reasonably relied to her

detriment. As authority for her position, Hall points to Appeal

of Cloutier Lumber Co.,

(1981), in which the court

held that “[e]stoppel prevents one party from asserting a

position contrary to one previously taken when it would be unfair

opposition to NEBS’s motion to dismiss. Hall has, however, addressed that issue.

8 to allow him to do s o . It arises when one party has knowingly

made representations upon which the other reasonably has relied

to his detriment.”

. Importantly, however, Hall

cannot show that she relied to her detriment upon M r . Sell’s

statements.

Based upon the documents presented by the parties, it is

clear that Hall notified NEBS of her intention not to seek

workers’ compensation benefits before she received the denial of

benefits memo from M r . Sell. Consequently, the documents of

record establish that Hall did not make her decision to forego a

claim for benefits under the Act “in reliance upon” M r . Sell’s

memo.

Additionally, even if the timing of the relevant events were

different, Hall still could not show detrimental reliance because

the time during which she may appeal the insurance carrier’s

adverse decision has not lapsed. See RSA 281-A:42-d (affording

claimants 18 months after receiving notice that a workers’

compensation claim has been denied by the insurance carrier

within which to petition for a hearing). Because Hall was

9 injured on January 3 , 2003, that 18-month period has not yet

expired. Accordingly, even assuming M r . Sell can properly be

viewed as NEBS’s agent, Hall cannot show that she relinquished

any rights as a result of having detrimentally relied on his

denial letter.

II. Compensable Injuries Under the Act.

The Act defines compensable injuries as those “arising out

of and in the course of employment.” RSA 281-A:2 X I . In

interpreting that statutory provision, the New Hampshire Supreme

Court has held that, for an employee’s injuries to be compensable

under the Act, it must be shown:

(1) that the injury arose out of employment by demonstrating that it resulted from a risk created by the employment; and (2) that the injury arose in the course of employment by demonstrating that (A) it occurred within the boundaries of time and space created by the terms of employment; and (B) it occurred in the performance of an activity related to employment, which may include a personal activity if reasonably expected and not forbidden, or an activity of mutual benefit to an employer and employee.

Cook v . Wickson Trucking Co.,

5 0 , 154 (1991) (citations

and internal quotation marks omitted). Failure to prove any one

of those three elements is fatal to a claim for benefits under

10 the Act. Harrington v . Brooks Drugs, Inc.,

0 1 , 105

(2002). S o , to prevail on its claim that Hall’s negligence

claims are, as a matter of law, barred by the Act’s exclusivity

provisions, NEBS must show that the circumstances leading to

Hall’s injuries satisfy each of the three elements identified by

the New Hampshire Supreme Court.2

2 Although not central to its argument in support of its motion to dismiss, NEBS seems to suggest that the Act’s exclusivity provision precludes Hall from bringing her common law negligence claims against it even if her injuries are not compensable under the Act. See, e.g., Defendant’s memorandum at 6 n . 4 (“the workers’ compensation bar to Hall’s negligence claims against NEBS in this case is unrelated to the ultimate determination as to whether her injuries are actually compensable.”). In other words, NEBS apparently believes that the exclusivity provisions of the Act are not co-extensive with the Act’s coverage. NEBS seems to assert that the exclusivity provision actually sweeps much more broadly, and bars all common law and statutory claims by a worker against an employer, even when the employee’s underlying injury is not compensable under the Act. Such a broad reading of the Act’s exclusivity provisions, would likely implicate due process concerns. See generally Young v . Prevue Products, Inc.,

4 , 87-88 (1987). See also 6 A . Larson, Workers’ Compensation Law, § 100 at 100-1 (2002) (“The compensation remedy is exclusive of all other remedies by the employee . . . against the employer and insurance carrier for the same injury, if the injury falls within the coverage formula of the act. If it does not, . . . the compensation act does not disturb any existing remedy.”)(emphasis supplied). Nevertheless, it is not necessary to resolve that point in order to resolve NEBS’s motion to dismiss.

11 III. Injuries Stemming from the Assault on Hall.

Hall contends that because she was assaulted after she had

been dismissed from work and since she was no longer within the

physical confines of NEBS’s facility, she “was no longer engaged

in any work-related activity” when the assault took place.

Plaintiff’s memorandum at 7 . She goes on to say that there is

“simply no relationship between cleaning ice and snow from a car

windshield when leaving for home after dismissal from work, and

employment-related activities.” Id. Consequently, she says her

injuries are not compensable under the Act and, therefore, she is

not barred from suing her employer, NEBS, to recover damages for

the injuries inflicted by Gagne.

NEBS, on the other hand, contends that Hall’s injuries are

compensable under the Act. Thus, says NEBS, she is statutorily

barred from pursing any claims against it that arise out of those

work-related injuries; her remedies are limited to compensation

under the Act.

12 A. Injuries “Arising of out Employment.”

To prevail on its motion to dismiss, NEBS must first show

that there was a causal connection between Hall’s injuries and

her employment. See, e.g., Harrington, 148 N.H. at 105.

Importantly, however, “the question is not what the employee is

about to d o , or has just been doing, but whether or not at the

time of injury he is within the ‘zone of his employment.’”

Whittemore v . Sullivan County Homemaker’s Aid Service,

(1987) (quoting Gallienne v . Becker Bros. Shoe Co.,

(1937)).

Hall emphasizes the fact that, when she was attacked, she

was no longer “on the clock” and, instead, had been released from

work for the day and was preparing to go home. That focus i s ,

however, too narrow. As the New Hampshire Supreme Court has

repeatedly observed, the provisions of the Act are construed

broadly and liberally, and all reasonable doubts are resolved in

favor of finding a claimed injury to be compensable under the

Act. See, e.g., Appeal of Denton,

(2001);

Appeal of Estate of Balamotis,

(1996). See

also Gagnon v . New Hampshire Ins. Co.,

0 , 76-77 (1990)

13 (rejecting plaintiff’s assertion that the Act’s language should

be liberally construed in favor of the injured employee’s

position, regardless of whether he or she seeks benefits under

the Act or seeks to demonstrate that his or her injuries are not

compensable under the Act, thereby allowing suit against the

employer).

In this case, accepting the facts pleaded by Hall as true,

her injuries were, as a matter of law, causally connected to her

employment. Stated in simplest terms, she plainly would not have

been in the NEBS parking lot at the time of her injury had it not

been for her employment. See generally, Gagnon,

(“First, the injury resulted from a risk created by her

employment and therefore arose out of her employment. The camp

pool in which [plaintiff] nearly drowned was available to camp

employees during their ‘one-hour staff free swim.’ [Plaintiff]

would not have been in the pool at the time of her seizure had it

not been for her employment at Camp Allen.”); U.S. Fidelity &

Guar. C o . v . Gagne,

2 0 , 423 (1961) (“The evidence

warranted finding and ruling that the plaintiff’s injuries arose

out of and in the course of her employment. . . . [P]laintiff was

14 utilizing the usual and expected means of access from the public

street to her employment, and was injured upon property adjoining

her place of employment and findably at the entrance to the

employer’s premises. She encountered the hazard because of her

employment, and her entry to her place of employment was clearly

an activity which was in the course of her employment.”). See

generally Balamotis,

(“Once an activity has been

placed in physical contact with the employment environment, the

exact nature and purpose of the activity itself does not have to

bear the whole load of establishing work connection, and

consequently the employment-connection of that nature and purpose

does not have to be as conspicuous as it otherwise might.”)

(citation and internal quotation marks omitted).

In 1937, the New Hampshire Supreme Court addressed an issue

similar to that presented in this case and concluded:

[E]mployment includes not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is

15 one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance.

Gallienne,

(emphasis supplied) (quoting

Bountiful Brick C o . v . Giles,

5 4 , 158 (1928)).

As to the first of the three elements NEBS must demonstrate,

then, it has established that Hall’s injuries arose out of a risk

created by her employment.

B. Injury within the “Boundaries of Space and Time Created by the Terms of Employment.”

The New Hampshire Supreme Court has made clear that, “the

ordinary perils of travel between home and work are not

considered hazards of employment and, therefore, that injuries

arising from such travel are noncompensable under our Workers’

Compensation Law.” Harrington, 148 N.H. at 106. Here, however,

Hall was not injured during the course of her commute to or from

work. Rather, she was injured in the NEBS parking lot,

immediately after she had been released from work and as she

prepared to drive home. Under New Hampshire law, injuries

sustained under those conditions are deemed to have occurred

16 within the boundaries of time and space created by the terms of

employment. See, e.g., Gallienne,

(“It is of no

consequence that the plaintiff’s time was her own [when she was

injured], and that, with the defendant’s acquiescence, she had

then gone outside the factory in pursuit of her own private

affairs. Such is always the case when the employee is going back

and forth between his home and his work. The question is not

what the employee is about to d o , or has just been doing, but

whether or not at the time of injury he is within the ‘zone of

his employment.’” (citation omitted). See also Gagne,

. See generally 1 A . Larson, Workers’ Compensation Law, §

13.01[1] at 13-2 (2002) (“The course of employment is not

confined to actual manipulation of the tools of the work, nor to

the exact hours of work. On the other hand, while admittedly the

employment is the cause of the worker’s journey between home and

factory, it is generally taken for granted that workers’

compensation was not intended to protect against all the perils

of that journey. Between these two extremes, a compromise on the

subject of going to and from work has been arrived a t , largely by

case law, with a surprising degree of unanimity: for an employee

having fixed hours and place of work, going to and coming from

17 work is covered only on the employer’s premises.”) (emphasis in

original) (footnotes omitted).

C. An Activity Related to Employment.

Finally, in order to prevail on its motion to dismiss, NEBS

must demonstrate that Hall sustained her injuries “in the

performance of an activity related to employment, which may

include a personal activity if reasonably expected and not

forbidden.” Harrington, 148 N.H. at 105 (citation omitted).

Hall asserts that, as a matter of law, NEBS cannot sustain its

burden with regard to that element. Specifically, she suggests

that the New Hampshire Supreme Court has concluded that an

employee is engaged in a “personal activity” that is “reasonably

expected” only when the employee engages in conduct that is “on

the employer’s premises, utilizing the employer’s equipment, with

the employer’s knowledge.” Plaintiff’s surreply memorandum at 4

(quoting Harrington, 148 N.H. at 1 0 6 ) . Again, however,

plaintiff’s focus is overly narrow.

While the New Hampshire Supreme Court has certainly

recognized that an employee might well be engaged in “reasonably

18 expected personal activities” when he or she performs some act on

the employer’s premises, with the assistance of the employer’s

equipment, and with the employer’s knowledge, it has by no means

limited the scope of that phrase to those precise circumstances.

S o , as discussed earlier, in Gagnon the court concluded that the

claimant was engaged in an activity that was “reasonably expected

and not forbidden,” when she was injured while swimming in her

employer’s pool. Id. at 7 6 . See also Balamotis,

(concluding that employee who died during the course of a lunch-

time volleyball game on the employer’s premise had been engaged

in a personal activity “reasonably expected and not forbidden”);

Appeal of Griffin,

5 0 , 656 (1996) (concluding that

injuries the claimant sustained after engaging in a fight with a

co-employee shortly after dining out were compensable under the

Act, since “petitioner’s personal activity of dining out was

reasonably expected and not forbidden by the employer. The

petitioner’s injury thus arose in the course of his

employment.”); Witham v . Gellis,

(1940)

(concluding that a filling station employee who was injured as he

crossed a highway while returning from a personal errand was

engaged in “matters of a personal nature reasonably to be

19 undertaken and not expressly forbidden,” and, therefore, his

injuries were compensable under the A c t ) .

Here, although Hall was not engaged in activity of direct

benefit to NEBS when she was attacked, the act of cleaning snow

off her car before leaving NEBS’s parking lot was, under New

Hampshire law, a personal activity that was reasonably expected

and not forbidden. And, because her injuries resulted from a

risk created by her employment, and because they occurred within

the “boundaries of time and space” created by the terms of her

employment, those injuries “arose out of her employment.”

Consequently, they are compensable under the Act and Hall is

statutorily barred from suing her employer to recover common law

damages.

IV. Applicability of LaBonte v . National Gypsum C o .

Finally, Hall’s reliance upon (as well as her efforts to

distinguish, in part) the New Hampshire Supreme Court’s holding

in LaBonte v . National Gypsum Co.,

(1970), warrants

brief discussion. In LaBonte, as here, the claimant was injured

as a result of an attack by a co-worker. And, in an effort to

20 avoid the Act’s exclusivity provision, LaBonte, like Hall, said

the attack was a result of “a purely personal matter unrelated to

his employment.”

. In discussing the application of

the Act to injuries sustained as a result of an attack by one

employee upon another, the court noted:

The law is well established that if the assault arose from a personal quarrel unrelated to the employment or its environment, the resulting injury did not arise out of the employment. If the friction and strain arises not because of the enforced contacts resulting from the duties of the employment, but rather because the two employees, who met each other on the job, choose to enter a purely private relationship just as they might if they had met elsewhere and quarrels develop they do not arise out of the employment. To be compensable the injury received in a quarrel must result from the conditions and obligations of the employment and not merely from the bare existence of the employment.

(citations and internal quotation marks omitted).

Not surprisingly, Hall points to that language and says the

circumstances surrounding her injuries fall squarely within the

boundaries described by the court: although she and Gagne

apparently met at NEBS, they developed a personal relationship

outside of work and his attack upon her stemmed directly from

“friction and strain” that developed entirely outside the work

environment.

21 Importantly, however, the LaBonte court ultimately concluded

that the plaintiff’s claims against his employer were barred by

the Act’s exclusivity provision. Specifically, the court

concluded that because the plaintiff alleged that his injuries

were proximately caused by his employer’s failure to act upon

knowledge that the attacker “sought and intended to inflict”

injury upon plaintiff and, by such inaction, breached a duty to

take reasonable affirmative steps to ensure plaintiff’s safety,

his injuries necessarily resulted “from the conditions and

obligations of the employment.”

.

So it is in this case. Hall alleges that her injuries were

proximately caused by NEBS’s failure to make the workplace

reasonably safe and its failure to take adequate steps to protect

her against Gagne’s assault in the NEBS parking lot. Among other

things, she claims:

The defendants owed a duty to plaintiff to use reasonable care and not to unreasonably create a condition of employment that foreseeably enhanced the risk of criminal attack.

The defendants breached said duty by unreasonably creating a condition of employment that foreseeably enhanced risk of criminal attack as follows:

22 a. Defendants created conditions of employment that were so fraught with danger that it was likely, or even probable, that the plaintiff would be subject to criminal attack by a third party;

b. Defendants’ employment conditions induced reliance by plaintiff on defendant to keep Gagne out of contact with plaintiff while he was at the New Hampshire facility;

h. Defendants’ employment conditions failed to provide adequate security;

i. Defendants’ employment conditions failed to provide adequate lighting;

Complaint at paras. 12-13 (emphasis supplied).

Given the factual allegations in Hall’s complaint, her

injuries necessarily arose “out of and in the course of

employment.” RSA 281-A:2 X I . As the LaBonte court concluded:

[C]onstruing plaintiff’s declaration as a whole most favorably to [her] admits of only one conclusion, that i s , that [her] injury resulted from the conditions and obligations of the employment. In other words, plaintiff’s declaration established as a matter of law that [her] injury resulted from the employer’s negligent supervision of his employees and was an

23 accidental injury arising out of and in the course of [plaintiff’s] employment and compensable under RSA ch 281.

(citations and internal quotation marks omitted).

Conclusion

In light of the allegations set forth in her complaint

(which are accepted as true), plaintiff’s negligence claims

against NEBS, her employer, are, as a matter of law, barred by

the exclusivity provision of New Hampshire’s Workers’

Compensation Act. Accordingly, defendant’s motion to dismiss

(document n o . 3 ) is granted. Defendant’s request for oral

argument (document n o . 14) is denied as moot.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge April 2 9 , 2003

cc: Robert D. Hunt, Esq. Richard L . Alfred, Esq. Andrew D. Dunn, Esq.

24