Vaughn v Severstal North American, Inc., 2007 ACO #35
On December 20, 2002, while the Plaintiff, James Vaughn, was sitting in his car eating lunch in his employer’s parking lot, a man and a woman approached his car. The man approached the driver’s side window, tapped the gun against the window and then shot him in the abdomen. The Plaintiff did not know his assailants and they have never been caught.

The Defendant argued that the Plaintiff failed to show his injury occurred both in the course of and arising out of his employment. However, the WCAC affirmed the magistrate’s finding that the Plaintiff’s injuries occurred both in the course of and arose out of his employment.

The magistrate found the Plaintiff was in the parking lot within a reasonable time before his working hours and that the he was not engaged in an activity for which the major purpose was social or recreational. Specifically, the magistrate indicated that the major purpose of the Plaintiff’s activity, at the time he was shot, was waiting for his shift to begin and therefore the Plaintiff was entitled to the presumption under MCL 418.301(3).

MCL 418.301 (3) states as follows:
An employee going to or from his work, while on the premises where the employee’s work is to be performed, and within a reasonable time before and after his working hours, is presumed to be within the course of his employment. Notwithstanding this presumption, an injury incurred in the pursuit of an activity the major purpose of which is social or recreational is not covered under this act. Any cause of action brought for such an injury is not subject to section 131.

After finding the injury occurred in the course of employment, the magistrate found the injury also arose out of the Plaintiff’s employment. There was no evidence that the Plaintiff knew his assailants and there was no evidence that the Plaintiff was engaged in any illegal activity. As such, the magistrate found that the injury arose out of a neutral or positional risk and not out of a personal risk.

The WCAC affirmed the magistrate’s findings and reiterated that the case law holds that the relevant “premises” includes the Defendant’s employee parking lot. A risk is positional if the employment brought the employee to the place at the time he was injured. In this case, it was the employment that required the Plaintiff to be at the place where the exposure to the risk occurred.

Both the Court of Appeals and the Michigan Supreme Court denied leave to hear this matter on appeal.