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Ventura v. Albertson''s Inc.12/17/1992
Section 8-41-301-(1), C.R.S. (1992 Cum. Supp.) states: "The right to the compensation . . . in lieu of any other liability to any person for any personal injury . . . shall obtain in all cases . . . where, at the time of the injury, the employee is performing service arising out of and in the course of the employee's employment." (emphasis supplied)
The trial court conceded that there was evidence showing plaintiff had completed his shift, had punched out, had left the store, and that he was returning to purchase soda pop. However, because the argument which ultimately led to the severe beating plaintiff received grew out of the employment, the trial court concluded whether plaintiff was performing services arising out of and in the course of employment at the time of the injury was immaterial.
I cannot reconcile that Conclusion with the plain language of the statute. See Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo. 1991). See also Popovich v. Irlando, 811 P.2d 379 (Colo. 1991) (citing with approval the rule of Kandt v. Evans, 645 P.2d 1300 (Colo. 1992) holding that both the tortfeasor and the victim must be acting within the scope of their employment.)
Furthermore, I believe that a material issue of fact remains whether the injuries compensable for false arrest are cognizable and therefore within the exclusivity protection of the Worker's Compensation Act. See Popovich v. Irlando, supra; cf. Dorr v. C.B. Johnson, Inc., 660 P.2d 517 (Colo. App. 1983).
Therefore, I would reverse the summary judgment and remand for a trial.
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