Michael BERNARD v. CARLSON COMPANIES-TGIF and Indemnity Insurance Company of North America
60 Va. App. 400
| Va. Ct. App. | 2012Background
- Bernard, a TGIF host/waiter, sampled foods for menu familiarity in 2010 at employer’s request.
- In January 2010, Bernard choked on a partially chewed quesadilla during a tasting and injured his esophagus.
- He filed a workers’ compensation claim arguing the injury arose in the course of employment and arose out of an actual risk.
- The deputy commissioner and then the commission held the injury occurred in the course of employment but not arising out of an actual risk; dissent noted a factual basis for arising-out reasons.
- The court affirmed, applying the actual-risk standard to separate in-course-of from arising-out-of analysis and concluding the quesadilla was not a work-peculiar hazard.
- The opinion distinguishes the ruling from the dissent and clarifies limits of the street-risk exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the choking injury arise out of the employment? | Bernard argues TGIF provided and encouraged eating the quesadilla, so the risk is work-related. | The injury is not due to a work-peculiar hazard; it would occur off the job with ordinary eating. | No; injury did not arise out of the actual risk of employment. |
| Is there an actual risk arising-out-of employment separate from the course-of employment? | The risk was increased by the work context (food tasting/employee meals). | The risk was the same as ordinary eating and not peculiar to the job. | No; the risk was not peculiar to the work. |
| Does the street-risk exception apply to this food-eating scenario? | Street-risk doctrine should cover vehicle-related injuries arising on the job; analogy to eating should not apply. | Street-risk exception should not extend to cases where the injury comes from ordinary eating at work. | No; street-risk exception does not apply. |
| Should the common/peculiar quesadilla analysis treat the quesadilla as a hazard peculiar to TGIF? | Sampling was a work duty and the quesadilla could be a work-related hazard. | The quesadilla was ordinary food without a defect or unusual property. | No; not a peculiar hazard. |
| Do in-the-course-of and arising-out-of analyses remain distinct in this context? | The act of eating during training/sampling is linked to employment; thus arising-out should follow. | Conflating the tests risks abolishing the actual-risk requirement. | They remain distinct; the injury was in course but not arising out of actual risk. |
Key Cases Cited
- Taylor v. Mobil Corp., 248 Va. 101 (1994) (actual risk excludes harm from general public risk)
- Hill City Trucking v. Christian, 238 Va. 735 (1989) (actual risk requires danger peculiar to the work)
- Baggett & Meador Cos. v. Dillon, 219 Va. 633 (1978) (causative danger must be peculiar to the work)
- United Parcel Service v. Fetterman, 230 Va. 257 (1985) (hazard must be peculiar to the work and not common to neighborhood)
- Lucas v. Lucas, 212 Va. 561 (1972) (if act relates to contract of service, compensation may be due)
- Green Hand Nursery, Inc. v. Loveless, 55 Va. App. 134 (2009) (exception that general public risk not dispositive to arise-out analysis)
- Bradshaw v. Aronovitch, 170 Va. 329 (1938) (quoated principle about hazard-based causation)