#26331-a-SLZ

2013 S.D. 50

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA
                                      ****

RONALD VOELLER, COURT-APPOINTED
PERSONAL REPRESENTATIVE OF THE
ESTATE OF JULIE DIANE TASSLER
and COURT-APPOINTED GUARDIAN OF
MITCHEL KANE TASSLER
and KRISTAL MACIE TASSLER, MINORS
AND DEPENDANTS OF DECEASED
EMPLOYEE, JULIE DIANE TASSLER,               Claimants and Appellants,

      v.

HSBC CARD SERVICES, INC. and
CHARTIS INSURANCE,                           Employer, Insurer and
                                             Appellees.

                                  ****
                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                ****
                     THE HONORABLE MARK BARNETT
                                Judge
                                ****

N. DEAN NASSER, JR.
JIMMY NASSER of
Nasser Law Offices, PC
Sioux Falls, South Dakota                    Attorneys for claimants
                                             and appellants.

RICHARD L. TRAVIS
ERIC D. DENURE of
May & Johnson, PC
Sioux Falls, South Dakota                    Attorneys for employer, insurer
                                             and appellees.

                                    ****
                                             ARGUED MARCH 20, 2013
                                             OPINION FILED 07/10/13
#26331

ZINTER, Justice

[¶1.]        Julie Tassler was shot and killed by her estranged husband in the

parking lot of her employer. The personal representative of Julie’s estate sought

worker’s compensation benefits for her death. Julie’s employer and the South

Dakota Department of Labor and Regulation denied benefits. They ruled that

Julie’s death did not “arise out of” her employment. The circuit court affirmed. We

affirm.

                            Facts and Procedural History

[¶2.]        On December 23, 2008, Julie served her husband Steven with a

summons and complaint for divorce. The next morning, Julie reported to work at

HSBC Card Services (Employer), where she had been employed since 2002. Around

9:30 a.m., Julie logged out of her work duties and left Employer’s building to take

her morning break in her car, which was in Employer’s parking lot. Steven, who

had been waiting in the parking lot in his vehicle, shot and killed Julie near her

parked car. Steven then took his own life. There were no witnesses to the incident.

[¶3.]        Ronald Voeller, Julie’s father, was appointed the personal

representative of Julie’s estate. After Employer denied worker’s compensation

benefits for Julie’s death, Voeller filed a petition for benefits with the Department.

[¶4.]        To recover worker’s compensation benefits, Voeller was required to

prove, among other things, that Julie’s death arose out of her employment. Voeller

argued that Julie’s death arose out of her employment because “but for” her being at

work that day, she would not have been killed. Voeller also argued that Julie’s

employment facilitated her death because Steven would have only killed Julie on


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Employer’s premises. Voeller claimed that Julie was only away from their children

while at work, and Steven would not have killed her when their children were

present. Voeller also claimed that Steven knew the layout of the parking lot, Julie’s

vehicle model, Julie’s habit of parking in a certain area of the lot, and Julie’s routine

of taking morning breaks in her car. On the other hand, Employer argued that

Julie’s death arose out of a domestic assault that was purely personal, and

consequently, there was no causal connection between the assault and Julie’s

employment.

[¶5.]         On cross-motions for summary judgment, an administrative law judge

granted summary judgment in favor of Employer. The ALJ noted that the “origin of

the assault was a marital conflict[.]” The ALJ also noted that Steven and Julie

were not coworkers, and there was “no evidence that [Julie’s] employment or [any]

relationship with a co-worker was a source of irritation in their marriage.” The ALJ

concluded that Julie’s employment “did not exacerbate or contribute to the

assault[,]” and Julie’s death “did not ‘arise out of’ her employment and [was] not

compensable[.]” The Department’s Secretary affirmed the ALJ’s decision. Voeller

appealed to the circuit court, which affirmed.

                                        Decision

[¶6.]         “When reviewing a grant of summary judgment, we decide only

whether genuine issues of material fact exist and whether the law was correctly

applied.” Fedderson v. Columbia Ins. Grp., 2012 S.D. 90, ¶ 5, 824 N.W.2d 793, 795

(internal quotation marks omitted). We conduct that review de novo. Jorgensen

Farms, Inc. v. Country Pride Coop., Inc., 2012 S.D. 78, ¶ 7, 824 N.W.2d 410, 414.


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“All reasonable inferences drawn from the facts [are] viewed in favor of the

nonmoving party and reasonable doubts [are] resolved against the moving party.”

Gul v. Ctr. for Fam. Med., 2009 S.D. 12, ¶ 8, 762 N.W.2d 629, 632. However,

“[e]ntry of summary judgment is mandated against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Zephier v.

Catholic Diocese of Sioux Falls, 2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662.

[¶7.]        To recover worker’s compensation benefits, the employee has the

burden of proving that he or she sustained an injury “arising out of” and “in the

course of” employment. SDCL 62-1-1(7). We construe these requirements liberally

so benefits are “not limited solely to the times when the employee is engaged in the

work that he [or she] was hired to perform.” Fair v. Nash Finch Co., 2007 S.D. 16, ¶

9, 728 N.W.2d 623, 628-29. Even though we analyze each requirement

independently, “they are part of the general inquiry of whether the injury or

condition complained of is connected to the employment.” Id. ¶ 9, 728 N.W.2d at

629.

[¶8.]        In this case, the parties agree that Julie’s death occurred in the course

of her employment. The question is whether Julie’s death arose out of her

employment. To prove that an injury arose out of employment, “the employee must

show that there [was] a ‘causal connection between the injury and the

employment.’” Id. ¶ 10, 728 N.W.2d at 629 (quoting Bender v. Dakota Resorts

Mgmt. Grp., Inc., 2005 S.D. 81, ¶ 10, 700 N.W.2d 739, 742). “Although the

employment need not be the direct or proximate cause of the injury, the accident


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must have its ‘origin in the hazard to which the employment exposed the employee

while doing [his or her] work.’” Id. (quoting Bender, 2005 S.D. 81, ¶ 10, 700 N.W.2d

at 742).

[¶9.]        In determining whether the requisite causal connection exists, it is

often useful to examine three categories of risk of injury to which an employee may

be exposed: “risks distinctly associated with the employment, risks personal to the

[employee], and neutral risks[.]” Bentt v. D.C. Dep’t of Emp’t Servs., 979 A.2d 1226,

1232 (D.C. 2009) (internal quotation marks omitted). See also Logsdon v. ISCO Co.,

618 N.W.2d 667, 672 (Neb. 2000); Fetzer v. N.D. Workforce Safety & Ins., 815

N.W.2d 539, 546 (N.D. 2012) (Maring, J., dissenting); 1 Arthur Larson & Lex K.

Larson, Larson’s Workers’ Compensation Law §§ 4.01-4.03 (2012). Injuries arising

from risks distinctly associated with employment are universally compensable,

while injuries from personal risks are generally noncompensable. Bentt, 979 A.2d

at 1232; Logsdon, 618 N.W.2d at 672; Fetzer, 815 N.W.2d at 546; see also Larson,

supra, § 7.02[4]. Risks personal to the employee are those risks “so clearly personal

that, even if they take effect while the employee is on the job, they could not

possibly be attributed to the employment.” Larson, supra, § 4.02.

[¶10.]       Injuries occurring as a result of neutral risks may be compensable

under the positional risk doctrine. See, e.g., Milledge v. Oaks, 784 N.E.2d 926, 931-

34 (Ind. 2003); Logsdon, 618 N.W.2d at 672-74; Larson, supra ¶ 9, § 3.05. The

positional risk doctrine involves:

             situations in which the only connection of the employment with
             the injury is that its obligations placed the employee in the
             particular place at the particular time when he or she was
             injured by some neutral force, meaning by “neutral” neither

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#26331

               personal to the claimant nor distinctly associated with the
               employment.

Larson, supra ¶ 9, § 3.05. The positional risk doctrine utilizes the “but for” test: 1

“An injury arises out of the employment if it would not have occurred but for the

fact that the conditions and obligations of the employment placed claimant in the

position where he or she was injured.” Id. Voeller argues that Julie’s death is

compensable under the “but for” test.

[¶11.]         This Court—without stating it—has applied the positional risk

doctrine. In Steinberg v. South Dakota Department of Military & Veteran Affairs,

2000 S.D. 36, ¶¶ 22, 30, 607 N.W.2d 596, 603, 606, a slip and fall on ice on

employer’s premises was compensable because the employee was “in an area where

she might reasonably be and at the time when her presence there would normally



1.       Many authorities, in applying the positional risk doctrine, utilize the “but for”
         test. See Bentt v. D.C. Dep’t of Emp’t Servs., 979 A.2d 1226, 1232 (D.C. 2009);
         Milledge v. Oaks, 784 N.E.2d 926, 931 (Ind. 2003) (stating that the “but for
         reasoning is the foundation of the positional risk doctrine”); Montgomery
         Cnty. v. Smith, 799 A.2d 406, 412 (Md. Ct. Spec. App. 2002) (quoting John D.
         Ingram, The Meaning of “Arising Out of” Employment in Illinois Workers’
         Compensation Law, 29 J. Marshall L. Rev. 153, 158 (1995)) (“The positional
         risk test is essentially a ‘but for’ approach; thus, ‘an injury is compensable if
         it would not have happened “but for” the fact that the conditions or
         obligations of the employment put the claimant in the position where he was
         injured.’”); United Fire & Cas. Co. v. Maw, 510 N.W.2d 241, 245 (Minn. Ct.
         App. 1994) (“[U]nder the positional-risk test, [the claimant’s] employment put
         him in the position where he was injured. But for the obligations of his
         employment, [the claimant] would not have been on the street corner where
         his injuries occurred.”); Logsdon v. ISCO Co., 618 N.W.2d 667, 673 (Neb.
         2000) (stating that the “but-for reasoning is the foundation of the positional
         risk doctrine”); Rio All Suite Hotel & Casino v. Phillips, 240 P.3d 2, 6 (Nev.
         2010) (internal quotation marks omitted) (stating that “the positional-risk
         test is a but for approach that evaluates whether the claimant would have
         been injured but for the fact that the conditions and obligations of the
         employment placed the claimant in the position where he was injured.”).

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#26331

be expected.” In Walz v. Fireman’s Fund Insurance Co., 1996 S.D. 135, ¶¶ 2, 5, 15,

556 N.W.2d 68, 69, 72, an employee’s injury, which was sustained by slipping on ice

in her employer’s parking lot, was compensable because the employee “would not

have been in [her] [e]mployer’s parking lot if she had not been working that day.”

In Fair v. Nash Finch Co., 2007 S.D. 16, ¶¶ 13-18, 728 N.W.2d 623, 629-32, an

employee’s fall while leaving the employer’s store was compensable. We noted,

“[A]ccidental injuries suffered by an employee while leaving the building wherein

his actual work is being done are generally deemed to have arisen out of and in the

course of the employment[.]” Id. ¶ 13, 728 N.W.2d at 629.

[¶12.]       In this case, however, compensation is not awardable under positional

risk cases like Steinberg, Walz, and Fair. Unlike those cases, this case did not

involve a neutral risk. Julie’s death arose out of the personal risk that developed

from accumulating domestic pressures and her divorce. By definition, the positional

risk doctrine requires that the risk must be one in which “any other person then

and there present would have met with irrespective of his employment[.]”

Steinberg, 2000 S.D. 36, ¶ 25, 607 N.W.2d at 605. But here, no other employee

present in Employer’s parking lot that day would have been assaulted by Steven.

[¶13.]       Voeller, however, points out that this Court has allowed compensation

under the “but for” test in two assault cases. In Anderson v. Hotel Cataract, 70 S.D.

376, 17 N.W.2d 913 (1945), this Court concluded that an assault by one coworker

upon another coworker was compensable because “[b]ut for [the] employment and

the presence of [the coworker] at his post of duty in the engine room, the assault

would not have been made.” Id. at 384, 17 N.W.2d at 917. In Phillips v. John


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Morrell & Co., 484 N.W.2d 527 (S.D. 1992), we stated that an “injury need not be

proximately caused by the employment, but simply that it would not have occurred

but for the employment.” Id. at 530 (emphasis added). We concluded “that the

injury [caused by one coworker’s assault of another coworker] arose ‘out of’ [the]

employment. [The injured coworker] would not have become injured but for the fact

he was at work.” Id. Relying on these cases, Voeller argues that “the necessary

quantum of ‘work-relatedness’” is present in this case because “but for” Julie’s

presence at work, she would not have been killed.

[¶14.]         Voeller’s reliance on Phillips and Anderson is misplaced.

Compensation was awarded in Phillips and Anderson because the assaults involved

coworkers and because employment played a role in the assaults. Phillips involved

two coworkers’ horseplay while performing their job duties. Id. at 529. Anderson

involved two coworkers’ argument that “was generated by [the coworkers’]

association in the employment,” a point that was central to that holding. See 70

S.D. at 384, 17 N.W.2d at 917. 2 Indeed, Anderson relied on Hartford Accident &



2.       The parties disagree whether the argument between the coworkers in
         Anderson v. Hotel Cataract, 70 S.D. 376, 17 N.W.2d 913 (1945), was personal
         or related to employment. Therefore, the parties disagree how and whether
         Anderson should be applied. In Anderson, the Industrial Commissioner’s
         findings of fact conflicted. The findings indicated “that the . . . assault on the
         part of [assailant] was motivated by the [decedent’s] announced intention of
         quitting his work[.]” Id. at 379, 17 N.W.2d at 915. But the findings also
         indicated “that [the] assault . . . was not caused by [the] discussion with
         reference to [the] work[.]” Id. Nevertheless, there is no dispute that the
         assault in Anderson did involve coworkers. Further, our analysis reflects
         that compensation was premised on the understanding that “accumulat[ing]
         pressures [leading to the assault] must be attributable in substantial part to
         the working environment.” See id. at 383, 17 N.W.2d at 917. In this case,
         Julie and Steven were not coworkers and the accumulated pressures leading
                                                                (continued . . .)
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#26331

Indemnity Co. v. Cardillo, 112 F.2d 11, 16-17 (D.C. Cir. 1940), which pointed out

that compensation is awardable where personal animosities develop during

employment, and the accumulated pressures of employment cause assaults between

coworkers. See Anderson, 70 S.D. at 382-83, 17 N.W.2d at 916-17.

               [W]ork places men under strains and fatigue from human and
               mechanical impacts, creating frictions which explode in myriads
               of ways, only some of which are immediately relevant to their
               tasks. Personal animosities are created by working together on
               the assembly line . . . . [And accumulated pressures] explode
               over incidents trivial and important, personal and official.

Id. at 382, 17 N.W.2d at 916 (quoting Cardillo, 112 F.2d at 17).

[¶15.]         But today’s case does not involve coworkers. Further, “the

accumulated pressures [leading to the assault were not] attributable in substantial

part to the working environment.” See id. at 383, 17 N.W.2d at 917. There is no

dispute that the assault occurred because of the accumulated pressures of Julie and

Steven’s marital difficulties. Voeller acknowledged in his summary judgment

affidavit that “the murder itself was motivated primarily by anger and rage from

divorce conflicts. It was a product of passion and heat of the moment.” Therefore,

Phillips and Anderson do not support an award of compensation in this case. 3


________________________
(. . . continued)
         to the assault did not develop from employment. They developed from a
         domestic dispute. Therefore, Anderson is no authority for compensation in
         this case.

3.       Voeller points out that Louisiana and Kentucky have extended the “but for”
         positional risk doctrine to personal assault cases. Therefore, Voeller contends
         that “there is ample authority for applying ‘positional risk’ analysis (in a
         privately motivated assault case) despite the non-neutral nature of the risk.”
         It appears, however, that those states overextended the positional risk
         doctrine, and therefore, we decline to adopt that view. See, e.g., 1 Arthur
                                                              (continued . . .)
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#26331

[¶16.]         Although a causal connection between employment and Steven’s

assault was not established under the “but for” test, an assault resulting from a

private quarrel may be compensable if the employment contributed to the assault.

Employment may contribute to an assault if the employment engendered,

exacerbated, or facilitated the assault. 4 See Morris v. Soloway, 428 N.W.2d 43, 45-

46 (Mich. Ct. App. 1988). But:

               When it is clear that the origin of the assault was purely private
               and personal, and that the employment contributed nothing to
               the episode, whether by engendering or exacerbating the quarrel

________________________
(. . . continued)
         Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 3.05 (2012)
         (“Difficulty may soon appear . . . where a court, having seized upon the
         positional risk test in a case involving a neutral risk, then has to apply its
         adopted test more broadly.”). See also Larson, supra, § 8.04 (stating that
         “Louisiana has carried the [positional risk doctrine] the furthest of all, and
         indeed, . . . has even overshot the mark somewhat by disregarding the
         ‘neutral-risk’ limitation of the rule in personal-assault cases.”).

         Additionally, even though Louisiana courts extended the “but for” positional
         risk doctrine to privately motivated assaults not involving coworkers, see,
         e.g., Duncan ex rel. Hahn v. S. Cent. Bell Tel. Co., 554 So. 2d 214 (La. Ct. App.
         1989); Gorings v. Edwards, 222 So. 2d 530 (La. Ct. App. 1969); Rogers v.
         Aetna Cas. & Sur. Co., 173 So. 2d 231 (La. Ct. App. 1965), “the Louisiana
         legislature reacted to [those] decisions by enacting legislation specifically
         excluding workers’ compensation recovery if the employee is injured by
         another person over matters not related to the employment.” Larson, supra,
         § 8.02[1][c].

4.       Those compensable situations typically arise when there is a specialized
         nature of employment, employment is the subject matter of the assault, an
         employer has knowledge of the risk, employment has a role of bringing the
         assailant and the victim together, or employment plays a role in supplying
         the weapon used in an assault. See Larson, supra note 3, §§ 8.01[1]-[2],
         8.02[3][a]-[e]; see also Carnegie v. Pan Am. Linen, 476 So. 2d 311 (Fla. Dist.
         Ct. App. 1985); Tampa Maid Seafood Prods. v. Porter, 415 So. 2d 883 (Fla.
         Dist. Ct. App. 1982); Carter v. Penney Tire & Recapping Co., 200 S.E.2d 64
         (S.C. 1973); Bell v. Kelso Oil Co., 597 S.W.2d 731 (Tenn. 1980). None of those
         situations are present in this case.

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#26331

             or facilitating the assault, the assault should be held
             noncompensable[.]

Id. (quoting the materially identical predecessor to Larson, supra ¶ 9, § 8.02[1][c]).

Thus, “when the animosity or dispute that culminates in an assault is imported into

the employment from claimant’s domestic or private life, and is not exacerbated by

the employment, the assault does not arise out of the employment[.]” Monahan v.

U.S. Check Book Co., 540 N.W.2d 380, 384 (Neb. Ct. App. 1995) (quoting the

materially identical predecessor to Larson, supra ¶ 9, § 8.02[1][a]).

[¶17.]       Voeller acknowledges the foregoing rules but contends that this

assault is compensable because Julie’s employment “contributed” to the episode by

“facilitating” the assault. See Morris, 428 N.W.2d at 45. Voeller points out that

personal assaults are compensable if the nature of the employment facilitated the

assault by increasing the risk of harm.

             [E]very jurisdiction . . . accepts, at the minimum, the principle
             that a harm is compensable if its risk is increased by the
             employment, [and] the clearest ground of compensability in the
             assault category is a showing that the probability of assault was
             augmented either because of the particular character of
             claimant’s job or because of the . . . environment in which he or
             she must work.

Larson, supra ¶ 9, § 8.01[1][a]. See also Fisher v. Halliburton, 667 F.3d 602, 615

(5th Cir. 2012); Cal. Comp. & Fire Co. v. Workmen’s Comp. App. Bd., 436 P.2d 67,

69 (Cal. 1968) (“There can be no doubt that [employee’s] duties placed her in an

isolated location, that the nature of her work was a factor in [her] husband’s

elaborate scheme and at the very least facilitated the assault, and that this was a

contributory cause of her death.”).



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[¶18.]         Voeller does not contend that the particular character of Julie’s job

increased the risk of assault. 5 He contends that Julie’s employment environment

facilitated and contributed to the assault because Julie’s employment provided the

only time and place that she would be away from her and Steven’s children. Voeller

contends that Steven would not have killed Julie in front of their children. Voeller

relies on assertions in his own affidavit, as well as assertions in affidavits of his

wife and Andy Minihan, an investigator and law enforcement officer. Voeller points

out that these affiants all claimed that Julie’s place of employment provided the

only opportunity for Steven to kill Julie. Voeller argues that the ALJ and circuit




5.       Larson has identified a number of jobs that have been held to involve an
         increased risk of assault:

               Among the particular jobs that have, for self-evident reasons,
               been held to subject an employee to a special risk of assault are
               those jobs that have to do with keeping the peace or guarding
               property, such as those of police officers, deputy sheriffs,
               marshals, and prison guards, and, to the extent that they have
               as one of their duties the protection of the premises and the
               settling of disputes, also superintendents, foremen, private
               security guards, and janitors; those jobs that involve carrying
               money, with the increased temptation to robbery, or even those
               that require the employee to be near the employee actually
               handling the money, such as collector, cashier or teller, assistant
               manager of a restaurant, and any other job that either actually
               entails handling of money or gives potential robbers that
               impression; those jobs that specially expose the employee to
               lawless or irresponsible members of the public, such as the job of
               bartender, or night club employee, or that merely subject the
               employee to increased and indiscriminate contact with the
               public, such as the jobs of streetcar conductor, bus driver, taxi
               driver, hotel domestic worker, or hotel manager.

         Larson, supra note 3, § 8.01[1][a] (footnotes omitted).

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court erred in not accepting these assertions as true for purposes of summary

judgment.

[¶19.]         However, these assertions are conclusory and speculative, and none of

the affiants offered specific facts supporting the claim that Steven did not have

access to Julie at any other time. For example, Minihan asserted that Steven

“apparently had an aversion to demonstrating acts of violence with Julie in front of

their children [and] the only place he could be assured of having her be apart from

the children where she would be accessible to him was at work while on break.”

Minihan acknowledged in his affidavit that his opinions were “based on that

assumption.” The assumption that Employer’s premises was the “only” place where

Steven could have assaulted Julie is an unsupported conclusion that is speculative,

and therefore, is not sufficient to raise a genuine issue of disputed fact. See

Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., 511 N.W.2d 567, 569 (S.D.

1994).

[¶20.]         Moreover, even if Voeller’s assertions were not conclusory and

speculative, they were not material. See generally Hall v. State ex rel. S.D. Dep’t of

Transp., 2011 S.D. 70, ¶ 9 n.3, 806 N.W.2d 217, 221 n.3 (“Disputes of fact are not

material unless they change the outcome of a case under the law.”). As previously

noted, to be compensable under this rule, the risk of assault must be increased by

the employment. 6 In this case, the risk must have been “augmented . . . because of

the . . . environment in which [Julie] work[ed].” See Larson, supra ¶ 9, § 8.01[1][a].



6.       We have rejected an “increased risk rule” in some cases. But those cases
         involved neutral risks. See Steinberg v. S.D. Dep’t of Military & Veterans
                                                              (continued . . .)
                                           -12-
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[¶21.]        Voeller is essentially arguing that mere presence at one’s place of

employment, which isolates the employee from some family members, increases the

risk of assault by other family members. However, temporary absence from family

members while working is a part of most employment environments. Were we to

hold that absence from some of one’s family alone increases the risk of a workplace

injury, employers would be responsible for all injuries occurring on the employer’s

premises, even though the cause of the injury had no connection to the hazards of

employment.

[¶22.]        Voeller also argues that Julie’s employment contributed to and

facilitated the assault because Steven had knowledge of the details of Julie’s

employment, including her use of the parking lot, her break routine, and her type of

vehicle. But that knowledge was not obtained through Julie’s employment. It is

undisputed that Steven “learned of [Julie’s] work schedule and break routine from

[Julie] or his own past observations.” ALJ Letter Decision and Order, Undisputed

Fact #9. Julie’s employment did not contribute to Steven’s acquisition of this

knowledge.




________________________
(. . . continued)
         Affairs, 2000 S.D. 36, ¶¶ 25-27, 607 N.W.2d 596, 604-05; (reiterating the rule
         from Nippert v. Shinn Farm Constr. Co., 388 N.W.2d 820, 822 (Neb. 1986)
         that “an employee’s injuries are compensable as long as his employment
         duties put him in a position that he might not otherwise be in which exposes
         him to a risk, even though the risk is not greater than that of the general
         public.”). And in neutral risk cases, an employee may be compensated for an
         injury if the “source of [that injury] was a natural phenomenon and a risk
         common to all[.]” See id. ¶¶ 25, 27, 607 N.W.2d at 604-05 (emphasis added).
         Voeller does not present such a case. See supra ¶ 15.

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[¶23.]        Voeller next argues that Julie’s employment contributed to the assault

because, even though no one “know[s] exactly what was said or what happened at

the scene[,]” the assault “likely centered around” Julie’s refusal to talk to Steven

due to her work. Voeller argues that “it was totally speculative for the ALJ to

assume that [Steven’s] personal motive was the sole active cause” of Julie’s death.

However, Voeller carried the trial burden of proof on this issue and he did not

identify specific facts suggesting that Steven’s motive for the assault arose from

Julie’s work obligations. The ALJ recognized this lack of evidence, noting that

“[t]here is . . . no evidence that [Julie’s] employment . . . was a source of irritation in

their marriage.”

[¶24.]        Voeller finally argues that the ALJ and the circuit court erred in

“never consider[ing] the [unexplained death] presumption or whether it was

rebutted.” Under the unexplained death presumption, “when an employee is found

dead under circumstances indicating death took place within the time and space

limits of the employment, in the absence of any evidence of what caused the death,

there is a presumption or inference that death arose out of the employment.” King

v. Johnson Bros. Constr. Co., 83 S.D. 69, 75, 155 N.W.2d 183, 186 (1967).

[¶25.]        Employer responds that it is known what caused Julie’s death: a fatal

gunshot wound inflicted by Steven. Therefore, Employer contends that the

unexplained death presumption is not applicable. The presumption does not,

however, apply only in situations where the immediate cause of death is

unexplained. See Zamora v. Coffee Gen. Hosp., 290 S.E.2d 192, 194 (Ga. Ct. App.

1982). “If that were the rule, in view of modern forensic medical techniques, there


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would be no viability whatsoever to the ‘well established’ presumption. This would

be true because there are very few cases in which the immediate cause of death

cannot be determined to at least some degree of medical and legal exactitude.” Id.

Thus, the presumption also applies “when the death itself has removed the only

possible witness who could prove causal connection[.]” Id. See also King, 83 S.D. at

75, 155 N.W.2d at 186 (“In unwitnessed death cases . . . the claimant is placed in an

extremely difficult position. . . . The death of the employee usually deprives the

dependent of his best witness—the employee himself—and, especially where the

accident is unwitnessed, some latitude should be given.”). Because there were no

witnesses to this assault, Julie’s death is “unexplained” and we presume that her

death arose out of her employment unless the presumption was rebutted.

[¶26.]       The unexplained death presumption is only “a procedural presumption

[that] disappears when the employer produces rebutting evidence on the issue[.]”

King, 83 S.D. at 75, 155 N.W.2d at 186. Rebutting evidence is “substantial, credible

evidence[,]” SDCL 19-11-1 (Rule 301), which is “such evidence [that] a trier of fact

would find sufficient to base a decision on the issue, if no contrary evidence was

submitted.” Estate of Dimond, 2008 S.D. 131, ¶ 9, 759 N.W.2d 534, 538. If an

employer presents rebutting evidence, the “arising out of employment” issue “must

be determined on the evidence as though no presumption had ever existed.” King,

83 S.D. at 75, 155 N.W.2d at 186.

[¶27.]       In this case, Employer identified substantial, credible evidence from

which a trier of fact could find that Julie’s death arose out of a purely personal

assault that was caused by Steven and Julie’s marital problems. Employer’s human


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resources director, who Julie had confided in regarding her marital problems,

indicated that Julie and Steven had “a lot of domestic problems.” The day before

the assault, Julie commenced an action for divorce. A coworker of Steven’s

indicated that Steven was also angry with Julie because she had apparently

withdrawn a large sum of money from their joint bank account. Finally, the

investigating police detective indicated that his and other officers’ conclusion was

that “this incident was obviously a domestic situation which had turned to the

worse.” Voeller even conceded in his affidavit that he “believe[d] the murder itself

was motivated primarily by anger and rage from divorce conflicts.” Because

Employer identified substantial, credible evidence rebutting the unexplained death

presumption, the presumption was eliminated from the case. And because no

presumption existed in this case, the ALJ and circuit court did not err in failing to

apply it.

[¶28.]       In sum, Voeller failed to satisfy his summary judgment burden of

identifying specific facts suggesting that Julie’s death had its “origin in the hazard

to which the employment exposed [Julie] while doing her work.” See Fair, 2007 S.D.

16, ¶ 10, 728 N.W.2d at 629. Employer’s only role in the assault was that it was the

place where Steven found Julie, a connection that is not sufficient by itself to make

the assault compensable. See Temple v. Denali Princess Lodge, 21 P.3d 813, 816

(Alaska 2001) (internal quotation marks omitted) (“Courts are especially likely to

deny compensation when the sole role of employment in the assault is providing a

place where the assailant can find the victim.”). This “assault occurred on

Employer’s premises not because [Julie] was performing h[er] duties at the time of


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the assault, but because [s]he merely was there.” See id. at 817-18. The risk of this

assault was so clearly personal to Julie, that even though it occurred while she was

at her place of work, the assault cannot possibly be attributed to her employment.

We hold that Julie’s death did not “arise out of” her employment. Summary

judgment was correctly granted.

[¶29.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON and

WILBUR, Justices, concur.




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