On April 27, 2011, a series of destructive tornados tore through the state of Alabama, killing hundreds and injuring hundreds more. Although legal concerns are not at the top of anyone’s mind in this time of tragedy, workers’ compensation adjusters and attorneys might soon be faced with workers’ compensation claims for injuries or deaths which occurred during the tornado outbreak.

Alabama Courts have not specifically addressed claims arising out of injuries suffered during tornados, or during other weather related outbreaks such as hurricanes or windstorms. However, in American Fuel & Clay Prods. Co. v. Gilbert, 221 Ala. 44 (Ala. 1930) the Alabama Supreme Court addressed a claim for a injury arising from a lightning strike. In that case, the injury occurred when the employee was struck by lightning which first struck a guy wire on a tipple, travelled the length of the guy wire, through the roof, and into the employee, killing him instantly. The Court determined that determination of the compensability of the injury depended on whether the injury “was peculiar to the employment as a contributing cause,” which excluded hazards “which comes from a hazard to which the workmen would have been equally exposed apart from the employment.” Although the Court originally declared that the location of the guy wires created a greater hazard than others outside of his employment experience, that conclusion was contrary to the findings of the trial court, and the Court on rehearing found that the employee was not entitled to benefits.

In accord with Gilbert, the Supreme Court in Ex parte Byrom, 895 So. 2d 942 (Ala. 2004) found that the employee, who was injured when the telephone he was using was struck by lightning, was entitled to benefits. The evidence indicated that the employee was required to be on the corded telephone for 15 to 18 hours a week, and therefore the Court concluded he experienced a greater than average risk of being struck by lightning as a condition of his employment.

Alabama Courts would likely apply the “increased risk” test to any claims based on injuries suffered during a tornado, requiring the employment to create a greater than average risk of tornado related injuries. A number of other jurisdictions have addressed tornado related claims under the increased risk test, and an analysis of the facts of those cases is informative as to what types of employments might be deemed compensable by Alabama Courts.

In Deffenbaugh Industries v. Angus, 313 Ark. 100, 852 S.W.2d 804 (1993), the Arkansas Supreme Court applied the increased risk test to an employee who was injured when a tornado struck his trailer. The trailer was supplied by his employer on the job-site so he could be present to perform his job requirements, which consisted of collecting and selling waste oil, as needed, twenty four hours a day, seven days a week. At the time of the tornado, he was waiting for a truck delivering waste oil in his trailer with his family. The Court noted that while the trailer was destroyed, the other buildings on the premises were not substantially damaged. The Court held that by virtue of the employee being obliged to wait for the delivery truck in his trailer, and being unable to seek safer ground due to the employment, he was exposed to an increased risk of the injuries he sustained than the general public. But see Decatur-Macon County Fair Asso. v. Industrial Com., 69 Ill. 2d 262 (Ill. 1977) (holding that employee’s death in trailer on fairground was not compensable, as living in the trailer was not a condition of employment and there was evidence that other more substantial structures were destroyed.) Hill v. St. Paul Fire & Marine Ins. Co., 512 S.W.2d 560 (Tenn. 1974) (holding that death to night watchmen due to tornado was not compensable, as the risk of death due to tornado in the employee’s building was common to the general public.)

Similarly, in Pigford Bros. Construction, Co. v. Evans, 225 Miss. 411, 83 So. 2d 622 (1955), the Supreme Court of Mississippi held that an employer whose job required him to keep a tarpaulin over the brake drums of a dragline during a storm, to keep them dry and prevent slipping, was exposed to an increase risk when he was killed during a tornado in Vicksburg Mississippi.

In Campbell “66” Express, Inc. v. The Industrial Commission, 83 Ill. 2d 353, 415 N.E.2d 1043 (1980), the Supreme Court of Illinois held that a truck driver killed during a tornado was exposed to an increased risk, by virtue of the requirement that “he be on the highway at all times of the day and night, and in all kinds of weather.” See also Dixon v. Travelers Indem. Co., 2011 Tenn. LEXIS 188 (Tenn. Mar. 3, 2011) (holding that truck driver’s injury during tornado was compensable due to increased weather related hazards in his employment.)

If anything can be gleaned from these cases, it is that the increased risk test for injury or death during a tornado is highly fact specific. If there is evidence the job required the employee to be outside or in an unsafe position during the storm, and was unable to seek safer location, it is likely the Court will find the employee experienced an increased risk and the injury or death would be compensable. However, if the evidence shows the employee experienced no greater risk than the general public, the Courts will deny compensability.