The Street Risk Doctrine

By: Worker's Compensation Practice Group

The busy months of November and December bring with them lots of traveling, which means employees may be driving in higher traffic conditions, sometimes on icy roads.  In regards to the compensability of motor vehicle accidents, Virginia follows the “street risk doctrine.”

Under the street risk doctrine, an injury is compensable if the claimant “establish[es] by a preponderance of the evidence (1) that his or her duties to the employer required his or her presence upon the streets,  and (2) that his or her injury arose from an actual risk of that presence upon the streets . . . .”  Hill v. Southern Tank Transp., Inc., 44 Va. App. 725 (2005).  However, unlike other accidents, which are only compensable when caused by a risk peculiar to the employment, a motor vehicle accident is compensable if any “risk of the street” caused the accident.   Virginia Courts have repeatedly held that “it is immaterial even whether the degree of exposure is increased, if in fact the employment subjected the employee to the hazards of the street . . . .'" Marketing Profiles v. Hill, 17 Va. App. 431, 434, 437 S.E.2d 727, 729 (1993) (quoting Immer & Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967).

In other words, it does not matter whether or not the employee was at a greater risk of being in an accident than any other driver on the street.  For example, the Commission has found  compensable accidents where the employee’s car was struck by another car, Eaddy v. Southeastern Tidewater, Claim No. 462-659 (Apr. 24, 1975);  where the employee was injured when his truck went through a dip in the road, Ross v. Ross Builder, Inc., JCN VA00001107376 (Nov. 3, 2016);  and where the car crashed because the tire slipped off the road, Moore v. DCR Natural Tunnel State Park, JCN VA00000644202 (Mar. 25, 2013).  Icy or wet road conditions and swerving in the road to avoid an animal are other examples of “street risks.”  The reasoning behind the street risk doctrine is that because the employee was “authorized and obligated” to drive or ride in a vehicle as part of his employment, “the risks of the street are the risks of employment.”  Marketing Profiles, 17 Va. App. at 434-35, 4237 S.E.2d at 729-30. 

However, the street risk doctrine does not mean that all motor vehicle accidents are automatically compensable.  Under the street risk rule, “facts must exist to explain how the accident occurred.  Hill v. Southern Tank Transp., Inc., 44 Va. App. 725, 732-733, 607 S.E.2d 730, 733-734, 2005 Va. App. LEXIS 28, *10.  If the claimant does not know the cause of the accident or is merely speculating as to the cause, there may be a defense that the accident was unexplained and therefore not compensable.  For example, in Hill v. Southern Tank, the claimant was driving and ran off the road and hit a tree.  The claimant did not identify the reason that he ran off the road, and therefore the Court of Appeals found that the accident was not compensable.

Further, to fall under the umbrella of the street risk doctrine, the claimant must have been driving in the course of his employment.  If the accident occurs somewhere where the claimant was not reasonably expected to be, or the claimant was injured while departing from his normal route on a “personal mission,” there may be an argument that the claimant was not in the course of the employment at the time of the accident.

Additionally, as with other types of accidents, a claimant may be barred from recovering for injuries sustained in a motor vehicle accident caused by the claimant’s willful misconduct or intoxication.  Thus, in investigating motor vehicle accidents, it is important to determine the speed of the vehicle at the time of the accident, whether the claimant was obeying traffic laws and signs at the time of the accident, whether the claimant was wearing his seatbelt, and whether there is any suspicion that the claimant was driving under the influence of drugs or alcohol.