Future Landmark Cases - Zone of Special Danger

Future Landmark Cases - Zone of Special Danger

I’m adding to my list of landmark Longshore Act Supreme Court decisions with a case that arose under the Defense Base Act (42 U.S.C. 1651, et seq.) (DBA). The case is O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951).  It established the doctrine of the Zone of Special Danger in DBA cases (this is without a doubt one of the most misleading names ever applied to a judicial doctrine, but more on this later).

Basically, the Supreme Court in O’Leary took an existing theory of causation in the workers’ compensation context and tacked this on to the DBA, where it became known as the Zone of Special Danger doctrine (in capital letters), and the rest is history.

NOTE: The fatal accident in this case occurred during performance of a construction project in Guam when the employee attempted to rescue two swimmers by diving into a dangerous channel where swimming was expressly forbidden.

The formulation from O’Leary as it is usually cited is as follows:

“The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer.  All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.”

Recovery would be available for an injury arising out of “… one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.”

Note: The “statute” referred to in the above quote was not the DBA, but O’Leary was a DBA case, capital letters were applied to the doctrine and we had the DBA’s Zone of Special Danger.

For background, I’ve summarized and discussed the Defense Base Act here on several occasions.

Basically the DBA covers all employees working overseas for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside of the continental U.S. in any Territory or possession, as well as all employees working on public works contracts with any U.S. Government agency outside of the U.S.

A recent case from the U.S. Department of Labor’s Benefits Review Board (BRB) illustrates how broadly the doctrine of the Zone of Special Danger has come to be applied (and I think that this case would have come as a big surprise to the O’Leary court).

The case is Steven Ritzheimer v. Triple Canopy, Inc., and Allied World National Assurance Co., and Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, BRB No. 15-0233, 2/23/2016.

The BRB granted oral argument and issued an en banc decision in this case of a claimant who was employed in Israel as a “force protection officer” pursuant to his employer’s contract with the U.S. Department of Defense.

The injury occurred when the claimant slipped getting out of the shower in his apartment. Here’s how the BRB described it:  “While showering in his apartment, the shower curtain came out of the bathtub, and the bathroom floor became wet.  When the claimant stepped out of the tub, he slipped on the floor ….” The BRB affirmed an Administrative Law Judge’s (ALJ) decision that this accident was covered under the DBA by application of the Zone of Special Danger.

The BRB listed the ALJ’s significant findings of “relevant” fact:

  • The bathroom in the claimant’s apartment was comparable to bathrooms in the U.S.,
  • The apartment’s furnishings did not include a bathmat,
  • The apartment was paid for by the employer,
  • The claimant’s job required a professional appearance, including good personal hygiene,
  • Weather conditions and the weight of his gear left the claimant sweaty and dusty after work,
  • The claimant also showered on his days off,
  • The claimant was “on call” 24 hours per day, 7 days per week, although he never worked 7 days per week or 24 hours per day.

Citing back to O’Leary, the ALJ found that the employer’s requirement that employees maintain good hygiene was a “condition and obligation” of the employment.  In the ALJ’s words, “The obligations and conditions of claimant’s employment made it necessary for him to engage in the showering activity that resulted in his injuries.”

NOTE: Surprisingly (maybe not), this is not the first DBA case resulting from an injury in a shower, but it is the first one occurring in the claimant’s off duty hours in his private apartment seemingly completely unrelated to work.

The ALJ and BRB rejected the employer’s argument that the act of showering in his private apartment on his own time was a personal activity completely disconnected from his employment.

So this is where we are with the Zone of Special Danger. I used to say that to describe DBA coverage as 24 hour, all activity coverage was not completely accurate.  I think that I may have to revise my opinion.  Admittedly, there are behaviors that would not be covered by the DBA, but based on this case and the existing case law they would have to be pretty far out there, most likely involving criminal activity or the indulging of truly unique personal idiosyncrasies.

So we have a “Zone” that covers DBA cases everywhere. It is a Zone of “Special Danger”.  But as the federal First Circuit Court of Appeals describes it, “Although the requisite ‘special danger’ covers risks peculiar to the foreign location or risks of greater magnitude than those encountered domestically, the zone also includes risks that might occur anywhere but in fact occur where the employee is injured.  ‘Special’ is best understood as ‘particular’ but not necessarily ‘enhanced’ (Battelle Memorial Institute v. DiCecca, 792 F.3rd 214 (1st Cir. 2015)). Yes, this is what we used to call doubletalk.

The doctrine is not limited to recreational or social activities in isolated areas nor is it limited to any element of special dangers of the employment in a particular locale increasing the risk of injury.

It is not necessary to establish proof of a heightened danger in order to invoke coverage under the doctrine. It apparently includes purely personal, off duty activities.

In fact, the Zone of Special Danger for DBA coverage has been applied to injuries suffered by non-U.S. citizens working in their home countries. You can’t get any less special than that.

So the Zone of Special Danger is not limited to any particular zone, there’s nothing special about the nature of the circumstances in which it applies, and there is no element of danger involved or required.

It’s not “Holy”, it’s not “Roman”, and it’s not an “Empire” for you history buffs (thank you Voltaire).

I’m calling O’Leary a “landmark” Longshore Act case, although it’s really not a “landmark” in that the zone of special danger phrase (small letters) already existed, and it’s not a Longshore Act case (it’s DBA).  But I think it’s appropriate since the case involves a Zone of Special Danger doctrine that applies everywhere, does not require “special” circumstances, and does not require any element of “danger”.


John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers’ Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of AEU's Longshore Insider.
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