If a Tree Falls on a Porta-Potty, Injury Not Compensable, Tennessee High Court Finds

November 22, 2021

If a tree falls on worker while he’s on a bathroom break, the resulting injury is not necessarily compensable, the Tennessee Supreme Court has decided.

In Brett Rosasco v. West Knoxville Painters and State Farm Fire and Casualty Co., the court on Friday held that Rosasco may have been in the course and scope of nature’s call, but that nature, not his employment, caused the accident that left him with serious spinal injuries.

“We conclude that the Court of Workers’ Compensation Claims properly determined that Mr. Rosasco’s injuries did not arise primarily out of his employment,” Senior Judge William Acree wrote in the Nov.18 opinion.

Rosasco was painting a house in October 2019 on what was described as an extremely windy day. He took a break from painting to let the wind die down, then went to the restroom in a portable toilet that was on the street near the house. Rosasco’s employer had not placed the porta-john there and no one seemed to know who did, the court explained.

While inside, Rosasco heard a loud “crack” and rushed outside, only to be hit by a dead tree as it fell. Rosasco was taken to the emergency room and underwent multi-level fusion surgery to repair spinal fractures. His treating physician later restricted him from lifting more than 25 pounds.

The painting contractor employer denied Rosasco’s workers’ compensation claim, arguing that the injury was not the result of his work, that the fallen tree was an act of God, and that the tree hazard was not unique to employment but posed the same risk to the general public. The compensation claims court judge agreed and found that Rosasco failed to show a causal connection between the injury and his work as a painter.

Rosasco’s attorney argued that the incident was part of his employment because the injury came while the man was seeking personal comfort during work, which has generally been considered compensable. The lawyer, Cary Bauer, of Knoxville, also said that the property owner or other responsible party should have known the danger and removed the tree before it fell.

The high court cited a number of previous court decisions that have held that Tennessee compensation law, like statutes in most states, requires that the injury must arise “primarily out of and in the course and scope of employment.”

The mere fact that an employee was injured at the place of employment does not mean the injury arose in the course and scope of work, the court said, citing from a 2007 court ruling.

“When an employee suffers an injury as the result of an uncontrolled force of nature or an act of God, to satisfy the ‘arising out of’ requirement, the employee must prove that the injury was caused by an increased risk peculiar to the nature of the employment and not a danger common to the general public,” reads a 2011 court decision, Dixon vs. Travelers Indemnity Co., the Supreme Court wrote.

A 1954 Tennessee Supreme Court decision also found that a worker who was killed during a storm, while riding in his employer’s truck, was not entitled to workers’ comp benefits. Ditto for an employee who was killed while working in a building that was struck by a tornado, a 1974 ruling in Hill vs. St. Paul Fire & Marine Insurance held.

Topics Tennessee

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