                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-1550


TYRONE REED SCOTT, Administrator of the Estate of Della Scott, Deceased,

                    Plaintiff - Appellant,

             v.

CG BELLKOR, LLC, d/b/a/ Chamberlayne Garden Apartments; BLUE VALLEY
APARTMENTS, INC.; FICKLING MANAGEMENT SERVICES; PREMIER RE
FUND, III LLC,

                    Defendants - Appellees.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:15-cv-00768-MHL)


Submitted: January 31, 2018                                  Decided: February 13, 2018


Before GREGORY, Chief Judge, and WILKINSON and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Curtis M. Hairston, Jr., THE GEE LAW FIRM, P.C., Richmond, Virginia, for Appellant.
Mark C. Nanavati, G. Christopher Jones, Jr., SINNOTT, NUCKOLS & LOGAN, P.C.,
Midlothian, Virginia; Brian A. Richardson, James M. Snyder, MCCANDLISH HOLTON
PC, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Tyrone Reed Scott, as administrator of the estate of Della Scott, appeals the

district court’s order dismissing his complaint for lack of subject matter jurisdiction. For

the reasons that follow, we affirm.

       As alleged in the complaint, 1 Della Scott (“Scott”) was employed as a leasing

agent for the Chamberlayne Garden Apartments (“the Apartments”) in Richmond,

Virginia. On December 19, 2013, while Scott was at work, a man named Benjamin P.

Dancy entered the leasing office and requested to speak with a leasing agent who no

longer worked there. After Scott informed Dancy that this particular leasing agent was

no longer employed by the Apartments, Dancy pulled out a knife, robbed Scott, and

forced Scott and a property manager into the leasing office’s bathroom. Once inside,

Dancy stabbed Scott multiple times, resulting in her death.          Plaintiff alleged that

Defendants, as owners, operators, and managers of the Apartments, were negligent for

failing to provide adequate security. 2

       Blue Valley Apartments, Inc., and Fickling Management Services separately

moved to dismiss the complaint. Finding that the Virginia Workers’ Compensation Act

(“VWCA”), Va. Code Ann. §§ 65.2-100 to 65.2-1310 (2017), provided the exclusive


       1
        Plaintiff filed two separate cases in Richmond City Circuit Court, which were
removed on the basis of diversity jurisdiction and consolidated by the district court. The
complaints in both cases were identical in all relevant respects.
       2
        The district court dismissed CG Bellkor, LLC and Premier RE Fund, III LLC as
fraudulently joined.


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remedy for Plaintiff’s claim, the district court dismissed the complaint for lack of subject

matter jurisdiction.

       We review de novo a dismissal under Fed. R. Civ. P. 12(b)(1). Willner v. Dimon,

849 F.3d 93, 103 (4th Cir. 2017). “An injury comes within the scope of the [VWCA] if it

results from an accident arising out of and in the course of the injured employee’s

employment.” Simms v. Ruby Tuesday, Inc., 704 S.E.2d 359, 362 (Va. 2011) (citing Va.

Code Ann. § 65.2-101). “When an employee sustains such an injury, the [VWCA]

provides the sole and exclusive remedy available against the employer.” Id. (internal

quotation marks omitted); see Va. Code Ann. § 65.2-307.

       The only disputed issue on appeal is whether Scott’s death arose out of her

employment. To determine whether an injury arose out of employment, the Supreme

Court of Virginia uses “the actual risk test.” Simms, 704 S.E.2d at 363 (internal quotation

marks omitted). Under this test, “an injury comes within the [VWCA] only if there is a

causal connection between the employee’s injury and the conditions under which the

employer requires the work to be done.” Id. (internal quotation marks omitted). The

injury need not be foreseeable, but it must be “peculiar to the work and not common to

the neighborhood.” Id. (quoting Bradshaw v. Aronovitch, 196 S.E. 684, 686 (Va. 1938)).

A physical assault may qualify as an accident under the VWCA “when it appears that it

was the result of an actual risk arising out of the employment.” Butler v. S. States Co-op,

Inc., 620 S.E.2d 768, 772 (Va. 2005) (internal quotation marks omitted). Conversely, an

injury does not arise out of employment if the employee would have been exposed to the



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hazardous condition causing the injury regardless of her employment. Simms, 704 S.E.2d

at 363.

          The complaint alleged that Scott previously advised the Apartments’ management

of nearby criminal activity and requested that security personnel be hired to protect the

Apartments’ employees. Thus, as Plaintiff acknowledged, Scott was endangered by the

location of her employment. See Plummer v. Landmark Commc’ns, Inc., 366 S.E.2d 73,

77 (Va. 1998) (“[T]he requisite nexus in an assault case is supplied if there is a showing

that the probability of assault was augmented . . . because of the special liability to assault

associated with the environment in which [the employee] must work.” (internal quotation

marks omitted)).      Moreover, Scott and Dancy only encountered each other because

Dancy purported to conduct business at Scott’s workplace. Finally, absent from the

complaint was any allegation that Dancy knew Scott prior to the date of the attack. See

Reamer v. Nat’l Serv. Indus., 377 S.E.2d 627, 630 (Va. 1989) (finding employee’s sexual

assaults by customer who was personally acquainted with employee was “purely personal

in nature” and thus fell outside VWCA). Thus, because Scott was brutally murdered, in a

location she believed was unsecure, by an unfamiliar man with whom she was brought

into contact through her capacity as an employee of the Apartments, we conclude that

Scott’s injury arose out of her employment, and that Plaintiff’s sole remedy lies under the

VWCA.

          Accordingly, we affirm the judgment of the district court dismissing the complaint

for lack of subject matter jurisdiction. We dispense with oral argument because the facts



                                              4
and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

                                                                         AFFIRMED




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