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Temple v Denali Princess Lodge (4/27/01) sp-5401

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 

KEVIN TEMPLE,                 )
                              )    Supreme Court No. S-9448
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-99-3332 CI
                              )
DENALI PRINCESS LODGE, and    )    O P I N I O N
ROYAL INSURANCE COMPANY,      )
                              )    [No. 5401 - April 27, 2001]
             Appellees.       )
______________________________)




          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                    Peter A. Michalski, Judge.


          Appearances:  Charles W. Coe, Anchorage, for
Appellant.  Robert L. Griffin, Law Offices of Robert L. Griffin,
Anchorage, for Appellees.


          Before:  Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          FABE, Chief Justice.


I.   INTRODUCTION
          Kevin Temple was unaware that his live-in girlfriend had
not broken off her relationship with her prior boyfriend, Matt
Callahan, until Callahan appeared at Temple's workplace and punched
him in the jaw.  Temple argues that he is entitled to workers'
compensation for the injury because his employer, Denali Princess
Lodge (Princess), facilitated the assault.  This argument was
rejected by the Alaska Workers' Compensation Board and by the
superior court.  Because we conclude that Princess's actions did
not amount to facilitation, we affirm the Board's decision.   
II.  FACTS AND PROCEEDINGS
     A.   Factual History
          Jessi Stroebele and Matt Callahan dated for about a year
and a half.  In May of 1994 Stroebele moved to the Denali Park area
to work at the Denali Princess Lodge.  Callahan visited her there
in June and believed the relationship to be ongoing after he left. 
After the visit, however, Stroebele became romantically involved
with Kevin Temple, another lodge employee.  She told Temple that
her relationship with Callahan had ended, and moved into shared
lodge employee living quarters with Temple.
          In August Callahan decided to pay Stroebele a surprise
visit.  Upon arrival at Denali Park, he learned that Stroebele was
dating Temple and had moved in with him.  Callahan went to
Stroebele and Temple's living quarters, where he spoke briefly with
Stroebele.  Temple was not at home; he was working the breakfast
shift at the lodge restaurant.
          Callahan then went to the restaurant, where he planned to
confront Temple.  The restaurant was thinly staffed and had no
manager on duty.  The cashier and hostess stations at the front of
the restaurant were apparently unattended, despite Princess's
policy of having an employee greet customers.  Although security
guards were in the area, none was in the restaurant.  Callahan
either lingered for a while in the unattended front waiting area or
walked directly to the employees-only staging area next to the
kitchen.  In the staging area, he waited for Temple for some time. 
He was not questioned about his presence or challenged by Princess
personnel, despite a policy prohibiting non-employees in that part
of the restaurant.
          When Temple came into view, Callahan asked another staff
member to confirm Temple's identity.  The staff member did so
without questioning Callahan's purpose in seeking Temple.  It is
disputed whether Callahan independently recognized Temple, or
relied on the staff member's identification. [Fn. 1] 
          In the staging area Temple approached Callahan,
apparently thinking that he was a staff member or customer whom
Temple was required to help as part of his job.  Callahan spoke a
few angry words to the bewildered Temple, then punched him in the
jaw. According to Callahan, his frustration over Stroebele
motivated the assault.
     B.   Procedural History
          Temple initially brought a claim for workers'
compensation to the Board in March of 1997.  The Board found that
because Callahan had purely personal motives, injuries from the
assault were not work related.  It ruled that the employer's
failure to enforce policies was irrelevant to compensability.
          On appeal, Superior Court Judge Pro Tem Sigurd E. Murphy
found that the Board had erred in not taking into account
Princess's failure to enforce its own policies and rules, the fact
that Temple was performing his job in approaching his assailant,
and the fact that a Princess employee pointed Temple out to
Callahan.  The proper test, the superior court held, was not
whether the assailant's motivation was work related, but rather
whether "the employer, by action or lack of action, endangered,
exacerbated, or facilitated Callahan's attack."  It remanded the
case for the Board to apply the appropriate test.
          On remand, the Board concluded that Princess did not
facilitate the attack, and denied Temple compensation and
attorney's fees.  The superior court affirmed the Board's
conclusion on appeal.
III. STANDARD OF REVIEW
          When considering decisions of administrative agencies, we
apply the "substantial evidence" standard to questions of fact,
asking whether findings are supported by "such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion." [Fn. 2]  For questions of law involving agency
expertise, we use the "reasonable basis" test. [Fn. 3]  We apply
our independent judgment to questions of law that do not involve
agency expertise, adopting "the rule of law that is most persuasive
in light of precedent, reason, and policy." [Fn. 4]
          When the superior court acts as an intermediate court of
appeal, we do not defer to its legal determinations. [Fn. 5]
IV.  DISCUSSION
     A.   Temple Is Not Eligible for Workers' Compensation for This
Injury.

          1.   Burden of proof

          The Alaska Workers' Compensation Act establishes a
presumption that employees' claims are compensable. [Fn. 6] 
Applying this presumption involves a three-step analysis. [Fn. 7] 
First, the employee must establish a preliminary link between the
injury and the employment. [Fn. 8]  This step of the analysis
requires consideration of "only evidence that tends to establish
the link." [Fn. 9]  We agree with the Board that Temple established
the presumption by presenting  evidence that Callahan lingered in
an employees-only area without being stopped or questioned, and
that a Princess employee pointed Temple out to Callahan.
          In the second step, we inquire whether the employer
rebutted this presumption with "substantial evidence that either
(1) provides an alternative explanation which, if accepted, would
exclude work related factors as a substantial cause of the
[injury]; or (2) directly eliminates any reasonable possibility
that employment was a factor in causing the disability." [Fn. 10] 
The Board found that the presumption was rebutted by Callahan's
testimony that he walked past the front area without waiting to be
assisted and that he recognized Temple unaided.  We also agree with
this conclusion. 
          As a third step, once the employer has rebutted the
presumption that the injuries are work related, the employee can
prevail only if he proves his claim by a preponderance of the
evidence. [Fn. 11]  We hold that the Board permissibly found that
Temple had not proved his claim by a preponderance of the evidence
and therefore agree that he is not eligible for workers'
compensation. 
          2.   Personally motivated assaults in the workplace

          The Alaska Workers' Compensation Act defines compensable
injuries as those "arising out of and in the course of employment
. . . includ[ing] an injury caused by the wilful act of a third
person directed against an employee because of the employment."
[Fn. 12]  Generally, courts have found that injuries do not arise
from employment where private quarrels are "imported" from outside
of the employment. [Fn. 13]  Larson's Workers' Compensation Law
treatise discusses fights over spouses or lovers as classic
examples of imported quarrels. [Fn. 14]  Injuries arising from
assaults or fights in such cases are almost always non-compensable.
[Fn. 15]  Courts are especially likely to deny compensation when
the sole role of employment in the assault is "provid[ing] a place
where the assailant can find the victim." [Fn. 16]
          We have strongly intimated in the past that an assault
motivated by a love triangle would not arise out of employment for
purposes of workers' compensation.  In Fireman's Fund American
Insurance Cos. v. Gomes, we discussed what kind of evidence might
rebut the statutory presumption of compensability for workplace
injuries. [Fn. 17]  We noted that if the employer in that case had
presented evidence that its employee's shooting was caused by his
involvement in a love triangle, it would have been "affirmative
evidence indicating that the killing was not work-connected." [Fn.
18]
          We have also considered a case in which a love triangle
apparently arose in the workplace, Marsh v. Alaska Workmen's
Compensation Board. [Fn. 19]  Marsh, a bartender, joined a customer
at her table during his break from work.  He was kissing the
customer when her husband, who had been in the next room, returned
to the table, struck Marsh, and caused Marsh substantial injury.
[Fn. 20]  We affirmed the Board's denial of workers' compensation
benefits to Marsh, holding that he had "taken himself outside the
scope and duties of his employment in his encounter with [the
customer] and, that it was that conduct which motivated the assault
on him." [Fn. 21]
          Assessing Marsh's claim, we quoted with favor Professor
Larson's summary of the law:
          When it is clear that the origin of the
assault was purely private and personal, and that the employment
contributed nothing to the episode, whether by engendering or
exacerbating the quarrel or facilitating the assault, the assault
should be held noncompensable.[ [Fn. 22]]

We emphasized that 

          labeling the employee's activity as "personal"
may not render the ensuing injury per se noncompensable.  However,
the activity must still be "reasonably foreseeable and incidental"
to the employment, and not just "but for" the employment, as
appellant contends, to entitle the employee to claim compensation.[[Fn. 23]]

          In the current case, it is undisputed that Kevin Temple
was assaulted when working.  Unlike Marsh, he had not "taken
himself outside the scope and duties of his employment"; his
activity in approaching Callahan in the waiters' area was entirely
"foreseeable and incidental" to the employment. [Fn. 24] Under
Marsh, therefore, his injuries may be compensable if Princess
contributed to the episode by engendering, exacerbating, or
facilitating the assault. [Fn. 25]
          According to Temple, Princess facilitated the assault by
failing to have managers on duty, security in the area, or
sufficiently trained or numerous servers, any of whom might have
stopped Callahan before he reached Temple.  The lack of managers
and trained servers, Temple claims, violated Princess's policy; the
policy offered Temple's only protection against assault.  Princess
further facilitated the assault, Temple argues, by requiring that
he approach and assist customers, such as Callahan appeared to be. 
Finally, Temple claims that his employment contributed to the
assault because a coworker pointed Temple out to his assailant.
          The Board considered these claims and concluded that
Princess's actions did not constitute facilitation.  A review of
case law convinces us that the Board correctly reached this
conclusion.  Although courts have, in rare cases, awarded
compensation for injuries arising from personally motivated
assaults in the workplace, these unusual cases involved facts
dissimilar to the facts now before us.  In one group of cases,
compensation was awarded because an employee's performance of an
employment obligation made the assault possible.  These cases are
not analogous to Temple's because, as the Board found and
substantial evidence supports, "the assault occurred on Employer's
premises not because Employee was performing his duties at the time
of the assault, but because he merely was there."  In a second set
of cases, compensation was awarded because an employer's action or
inaction gave the assailant access to the victim.  The Board found
substantial evidence to reject compensation under this precedent as
well; we affirm its conclusion that "Employer's action or inaction
did not facilitate the assault upon Employee," and that his
injuries therefore "do not arise out of his employment."
               a.   Attacks which arise from an employee's
performance of employment obligations

          Temple argues that his performance of a workplace
obligation, approaching and assisting customers, was a causal
factor in the assault.  He testified that company policy and common
sense required that he assist customers in the employees-only
staging area, and he believed Callahan was a customer.
                    i.   Temple's performance of employment
obligations did not give Callahan a unique opportunity to attack.

          A small number of cases have held injuries compensable
where the obligations of the victim's employment created a unique
opportunity for the assailant to attack.  In Culpepper v. Fairfield
Sapphire Valley, the claimant worked as a cocktail waitress in an
isolated mountain resort. [Fn. 26]  The employer expected employees
to help customers anywhere in the resort.  Therefore, the claimant
stopped on the road to assist a stranded motorist whom she
recognized as a customer.  He kidnapped and sexually assaulted her,
and she sustained serious injuries in escaping from his moving car. 
The court found the injuries causally connected to her employment
because the job placed her at increased risk of sexual assault and
because she acted in the interests of her employer when she stopped
on the roadside. [Fn. 27]
          The California Supreme Court in California Compensation
& Fire Co. v. Workmen's Compensation Appeals Board also awarded
compensation to an employee whose work requirements put her at
special risk. [Fn. 28]  The claimant's employment required that she
visit customers' homes to measure tables for customized pads.  Her
ex-husband rented an apartment and placed an order with her
employer under an assumed name.  When she came to the apartment, he
shot and killed her. [Fn. 29]  The court found that the employee's
work obligations contributed to her death because of the role her
work duties played in her assailant's scheme. [Fn. 30]
          These cases are analogous to Temple's in that the
attacker had personal motivation and the employees' work
obligations created the opportunity for assault.  However, in both
cases the employees' work-related actions were clear causal factors
that allowed the assaults to occur.  The same is not true in this
case.  Callahan had already found his victim when Temple approached
him.  Callahan did not attack Temple at work because Temple was
performing his workplace obligations, but rather because the
restaurant "provide[d] a place where the assailant [could] find the
victim." [Fn. 31]  Under these circumstances, as the Board
correctly concluded, compensation is not appropriate.
                    ii.  Temple's performance of employment
obligations did not motivate Callahan's attack.

          In rare cases, courts have awarded compensation where
employees' performance of work duties motivated assailants to
attack them.  In Ross v. Workmen's Compensation Appeals Board, a
liquor store clerk was awarded compensation after a customer's
jealous husband shot him. [Fn. 32]  The husband's suspicions were
aroused because the clerk had been seen sitting in his wife's car
outside the store.  Because the clerk's job involved helping
customers carry purchases to their cars and acting friendly toward
them, the Ross court found that "claimant's work activity and
ambient circumstances of his employment" were a causal factor in
the assault. [Fn. 33]  We discussed Ross in our Marsh decision, and
distinguished it because Ross did not act "in a personal capacity"
in being friendly with his assailant's wife. [Fn. 34]
          In another case, Murphy v. Workers' Compensation Appeals
Board, a husband shot his wife at her workplace because of a
dispute over the job itself. [Fn. 35]  The court found that this
assault was work related because the underlying dispute between the
victim and her husband directly concerned her work. [Fn. 36] 
          Kevin Temple's situation is not analogous to either of
these cases; Temple's performance of work duties did not anger
Callahan or motivate the assault.  At most, Temple's accessability
at work provided Callahan with the inspiration and the opportunity
to attack.  This attenuated connection does not support a finding
that Princess facilitated the assault or that workers' compensation
is owed.
                    iii. Temple's performance of employment
obligations did not create a unique risk of attack.

          Finally, the inherent risk of certain jobs may support a
finding that injuries sustained in personal attacks are work
related.  Both Culpepper [Fn. 37] (in which the claimant worked as
a cocktail waitress in a remote location) and California
Compensation [Fn. 38] (in which the claimant visited customers'
homes to perform her job) considered such risk when awarding
compensation to the claimants.  In Bryan v. Best Western/Coachman's
Inn, the court held that a motel security guard's injuries,
sustained in a fight with a coworker's boyfriend, were work related
because employment as a guard increased risk of assault. [Fn. 39] 
These cases do not support Temple's claim, because, as the Board
noted, waiting tables is not inherently dangerous work.

               b.   Attacks in which the employer's action or
inaction gave the assailant access to the victim

          Temple argues that Princess facilitated his attack
because a coworker helped Callahan identify his victim and because
Princess failed to enforce policies which would have kept Callahan
away from him.  We affirm the Board's conclusion that case law on
these issues does not support Temple's claim.
                    i.   Princess did not facilitate the attack
through an employee's act in identifying Temple for Callahan.

          Temple argues that Princess facilitated the attack
because a restaurant employee helped Callahan identify his victim. 
Yet in several cases in which coworkers were more clearly
instrumental in bringing an attacker to his victim, courts found
that the resulting injuries did not arise from work.  In
Transactron, Inc. v. Workers' Compensation Appeals Board, an
employee hid in the women's restroom from her angry husband. [Fn.
40]  A coworker told the husband where to find her; he entered the
restroom and shot her.  The court held that compensation could not
be predicated upon a coworker giving directions to an assailant.
[Fn. 41] Similarly, in Fair v. People's Savings Bank, a court found
that an employer did not facilitate a lethal assault where a
supervisor, who knew that the employee feared her boyfriend but did
not know that he was armed, told the boyfriend the employee's
location. [Fn. 42]  In light of this precedent, the Board properly
concluded that a Princess staff member's action in helping Callahan
identify Temple did not amount to facilitation by Princess of
Callahan's attack.
                    ii.  Princess did not facilitate the attack by
letting Callahan into the restaurant.

          In extreme cases, employers may facilitate assault by
failing to protect an employee from danger.  Princess's failure to
protect Temple, however, is not factually comparable to the acts of
the employers in cases in which compensation was awarded.  In
Murphy v. Workers' Compensation Appeals Board, the employee's
husband and attacker had told the employee's supervisor the precise
time and location where he intended to kill his wife. The
supervisor did not warn the employee, nor did he grant her repeated
requests for a leave of absence. [Fn. 43]  The court found that her
assault and death were work related. [Fn. 44]  In Carter v. Penney
Tire & Recapping Co., a roofer warned his employer that he expected
to be attacked. [Fn. 45]  The employer told him to return to work,
and guaranteed his safety.  The South Carolina Supreme Court held
that gunshot wounds subsequently sustained by the employee on the
worksite arose from his employment and were compensable. [Fn. 46] 
These cases are distinguishable from Temple's because they involved
foreknowledge as well as significant misconduct or assumption of
responsibility by management. 
          Several cases have rejected claims based on employers'
failure to protect employees from assault.  In Epperson v.
Industrial Commission, the employee had asked the security guard at
work not to admit her husband to the building. [Fn. 47]  The
husband came to the workplace in search of her, and she met with
him within view of the security guard.  Following a calm
conversation, he shot her. Epperson argued that the assault was
exacerbated by employment because she had depended on the security
guard.  But the court rejected this argument because Epperson did
not warn the guard that her husband might be armed or violent, and
she did not indicate any distress or need for assistance during
their encounter. [Fn. 48]  Johnson v. Drummond, Woodsum, Plimpton
& MacMahon, P.A. drew on Epperson in denying compensation to an
employee who told the receptionist not to let her husband into the
building, but told her manager that he would not harm her, and
spoke calmly with her husband in the lobby before he shot her. [Fn.
49]  Courts also rejected claims that personally motivated assaults
were facilitated by an employer who let the assailant into the
workplace in Transactron [Fn. 50] and Fair, [Fn. 51] two cases
discussed above, involving coworkers who directed assailants to
their victims.
          Given that employers' failure to protect employees from
assault did not constitute facilitation under the facts of the
cases discussed above, the Board correctly concluded that
Princess's inaction in this case also does not constitute
facilitation.
                    iii. Princess did not facilitate the attack by
failing to uphold the policies upon which Temple relied. 

          Temple's argument that Princess facilitated the attack by
failing to protect him focuses on the restaurant's policies of
greeting new guests promptly in the front area, having managers on
duty, and prohibiting non-employees from visiting the waiters'
staging area.  These policies should have shielded Temple from
harm, he argues, but Princess did not uphold these policies on the
morning of the attack.
          Very few cases address the role of workplace security
policies in workers' compensation cases.  A review of these few
cases, along with consideration of the purpose of workers'
compensation statutes and general policy concerns, convinces us
that Princess's failure to enforce these policies did not
facilitate Callahan's attack on Temple.  We therefore affirm the
Board's conclusion on this issue, as well.
          Employers' failure to enforce a policy has generally not
provided a basis for compensating resulting injuries in the
workplace.  Although Professor Larson discusses liability arising
from employers' failure to adhere to statutory or regulatory safety
requirements, he does not treat internal employer policy as a
source for special employer obligations. [Fn. 52]  One case which 
indirectly considered the question, Devault v. General Motors
Corp., did not find that the employer's inadequate enforcement of
security policy facilitated a personally motivated attack. [Fn. 53] 
In Devault, the employee was assaulted at work by an off-duty
coworker who was admitted to the workplace despite the fact that he
had the wrong badge for the shift and only on-duty workers were
supposed to be allowed inside.  The court found that the injury was
not work related, in part because of evidence that the employer had
a flexible enforcement policy concerning admissions. [Fn. 54]  The
dissent argued that the employer did facilitate the assault because
it was negligent in admitting the assailant despite his lack of a
badge for that shift. [Fn. 55]
          In several other cases involving workplace assault,
courts stated or implied that injuries were not compensable, in
part because the employers did all that could reasonably be
expected of them under the circumstances. [Fn. 56]  In Transactron,
the court emphasized, without drawing a legal conclusion, that the
employers' actions conformed with existing security measures. [Fn.
57]  None of these cases directly supports the proposition that
failure to uphold security policies might be grounds for finding
employer facilitation, and we decline to reach such a conclusion on
the facts of this case.
           Temple's argument also confuses the logic of workers'
compensation with that of tort law.  As we have explained in the
past, the workers' compensation system is based on a "political
compromise . . . whereby the employer bears the initial cost of
injuries that arise from employment related risks, regardless of
'fault,' and the employee surrenders his common-law right to sue in
tort." [Fn. 58]  The "underlying premise of this system is that
liability is based upon the existence of an employment
relationship, not upon a determination of culpability." [Fn. 59] 
Temple's argument would make negligence and fault the basis for
workers' compensation.  This is inconsistent with the underlying
logic of workers' compensation and with the rule of AS
23.30.045(b), that "compensation is payable irrespective of fault
as a cause for the injury."
     B.   The Board Did Not Base Its Analysis on the Positional
Risk Test.

          Temple argues that the Board misapplied the law in his
case by drawing on the positional risk doctrine. [Fn. 60]  Although
the Board's opinion does, at one point, describe Temple's claim as
a positional risk argument, and briefly analyze the case under that
doctrine, the bulk of the Board's analysis and its legal conclusion
focus on employer facilitation of assault.  The Board applied the
appropriate legal test. [Fn. 61]
V.   CONCLUSION
          We conclude that substantial evidence supports the
Workers' Compensation Board's conclusion that Princess did not
facilitate this assault.  Therefore, we AFFIRM the Board's decision
in this case.


                            FOOTNOTES


Footnote 1:

     In reaching its factual findings, the Board relied in part on
testimony from Callahan's criminal change-of-plea hearing. State of
Alaska v. Matthew R. Callahan, Case No. 4HE-94-32.  Temple now
claims that this evidence was inadmissable.  Temple waived this
objection by not raising it before the Board.  See Alaska R. Evid.
103(a)(1); Sherbahn v. Kerkove, 987 P.2d 195, 199 (Alaska 1999)
("If a party fails to object to the admission of evidence, the
party has waived the objection.").  Moreover, because he only
cursorily briefed this argument on appeal, we will not consider the
claim.  See Adamson v. University of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).


Footnote 2:

     Bockness v. Brown Jug, Inc., 980 P.2d 462, 465 (Alaska 1999)
(quoting Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska 1997)).


Footnote 3:

     Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1069
(Alaska 1997).


Footnote 4:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).


Footnote 5:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).


Footnote 6:

     See AS 23.30.120(a)(1); Tolbert v. Alascom, Inc., 973 P.2d
603, 606 (Alaska 1999).


Footnote 7:

     See Osborne Constr. Co. v. Jordan, 904 P.2d 386, 389 (Alaska
1995).


Footnote 8:

     See id.


Footnote 9:

     Tolbert, 973 P.2d at 610.


Footnote 10:

     Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)
(quoting Grainger v. Alaska Workers' Compensation Bd., 805 P.2d
976, 977 (Alaska 1991)).


Footnote 11:

     See Veco, Inc. v. Wolfer, 693 P.2d 865, 870 (Alaska 1985).


Footnote 12:

     AS 23.30.395(17).


Footnote 13:

     See 1 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law sec. 8.02[1][a] (1999) [hereinafter Larson's].


Footnote 14:

     Id. sec. 8.02[1][b], at 8-43.


Footnote 15:

     See, e.g., Devlin v. Ennis, 292 P.2d 469 (Idaho 1956); Ellis
v. Rose Oil Co., 190 So. 2d 450 (Miss. 1966); Gutierrez v. Artesia
Pub. Schs., 583 P.2d 476 (N.M. App. 1978); Robinson v. Felts, 541
P.2d 506 (Or. App. 1975). 


Footnote 16:

     California State Polytechnic Univ. v. Workers' Compensation
Appeals Bd., 179 Cal. Rptr. 605, 607 (Cal. App. 1982); see also 
Rogers v. Workers' Compensation Appeals Bd., 218 Cal. Rptr. 662,
665-66 (Cal. App. 1985); 1 Larson's sec. 8.02[1], at 8-42.


Footnote 17:

     544 P.2d 1013, 1016 (Alaska 1976).


Footnote 18:

     Id. 


Footnote 19:

     584 P.2d 1134 (Alaska 1978).  Although Marsh considered an
earlier version of the workers' compensation statute, former AS
23.30.265(13), that statute defined compensable injuries caused by
a third person in language identical to that in the current AS
23.30.395(17).


Footnote 20:

     Marsh, 584 P.2d at 1135.


Footnote 21:

     Id. at 1137.


Footnote 22:

     Id. at 1136 (quoting 1 A. Larson, The Law of Workman's
Compensation sec. 11.21, at 3-207 (1978)).  The treatise has since
been updated, but still includes this exact passage.  1 Larson'ssec.
8.02[1][c], at 8-44.


Footnote 23:

     Marsh, 584 P.2d at 1136.


Footnote 24:

     Id.


Footnote 25:

     See id.


Footnote 26:

     377 S.E.2d 777 (N.C. App.), aff'd, 386 S.E.2d 174 (N.C. 1989).


Footnote 27:

     See id. at 784.


Footnote 28:

     436 P.2d 67 (Cal. 1968).


Footnote 29:

     See id. at 68.


Footnote 30:

     See id. at 69.


Footnote 31:

     California State Polytechnic Univ. v. Workers' Compensation
Bd., 179 Cal. Rptr. 605 (Cal. App. 1982).


Footnote 32:

     99 Cal. Rptr. 79 (Cal. App. 1971).


Footnote 33:

     Id. at 83; see also Brewster Motor Co. v. Industrial Comm'n,
223 N.E.2d 131 (Ill. 1967) (awarding compensation to auto salesman
who repeatedly met both husband and wife during home visits
required by his work and who was eventually assaulted by
irrationally jealous husband); Nasser v. Security Ins. Co., 724
S.W.2d 17 (Tex. 1987) (awarding compensation to restaurant manager
whose work required friendly interaction with customers and who was
assaulted by the irrationally jealous ex-boyfriend of a customer at
whose table he sometimes sat).


Footnote 34:

     Marsh v. Alaska Workmen's Compensation Bd., 584 P.2d 1134,
1137 (Alaska 1978).


Footnote 35:

     150 Cal. Rptr. 561 (Cal. App. 1978).


Footnote 36:

     Id. at 564.  Murphy also rested in part on the actions taken
by the employer, as will be discussed in Part IV.A.2.b.ii, below. 
Id.


Footnote 37:

     Culpepper v. Fairfield Sapphire Valley, 377 S.E.2d 777 (N.C.
App.), aff'd, 386 S.E.2d 174 (N.C. 1989).


Footnote 38:

     California Compensation & Fire Co. v. Workmen's Compensation
Appeals Bd., 436 P.2d 67 (Cal. 1968).


Footnote 39:

     885 S.W.2d 28 (Ark. App. 1994).


Footnote 40:

     137 Cal. Rptr. 142 (Cal. App. 1977).


Footnote 41:

     See id. at 145.


Footnote 42:

     542 A.2d 1118, 1123 (Conn. 1988).


Footnote 43:

     150 Cal. Rptr. 561, 564 (Cal. App. 1978).


Footnote 44:

     Id.  Murphy also rested in part on the fact that the attack
was motivated by a dispute over work, as was discussed in Part
IV.A.2.a.iii, above.  Id. at 564.


Footnote 45:

     200 S.E.2d 64 (S.C. 1973).


Footnote 46:

     See id. at 67-68.


Footnote 47:

     549 P.2d 247 (Ariz. App. 1976).


Footnote 48:

     See id. at 250.


Footnote 49:

     490 A.2d 676, 678-79 (Maine 1985).


Footnote 50:

     Transactron, Inc. v. Workers' Compensation Bd., 137 Cal. Rptr.
142 (Cal. App. 1977) (denying compensation where coworker told
assailant that employee was hiding in the restroom, but that he was
not permitted to enter, and assailant went into the restroom and
shot employee).


Footnote 51:

     Fair v. People's Savings Bank, 542 A.2d 1118 (Conn. 1988)
(denying compensation where coworker told assailant that victim was
in personnel office, and he went into the office and shot
employee).


Footnote 52:

     7 Larson's sec. 69.24, at 13-353 - 13-371.


Footnote 53:

     386 N.W.2d 671, 673-74 (Mich. App. 1986).


Footnote 54:

     See id.


Footnote 55:

     See id. at 677 (Burns, J., dissenting).


Footnote 56:

     See, e.g., Epperson v. Industrial Comm'n, 549 P.2d 247 (Ariz.
App. 1976); Johnson v. Drummond, Woodsum, Plimpton & MacMahon,
P.A., 490 A.2d 676 (Maine 1985) (denying compensation where
employee told receptionist not to admit her husband but told
manager that he was not a threat; he shot employee in the lobby of
her workplace); Fair v. People's Savings Bank, 542 A.2d 1118 (Conn.
1988) (denying compensation where coworker told assailant that
victim was in personnel office, and he went into the office and
shot employee).


Footnote 57:

     Transactron, Inc. v. Workers' Compensation Bd., 137 Cal. Rptr.
142 (Cal. App. 1977) (denying compensation where coworker told
assailant that employee was hiding in the restroom, but that he was
not permitted to enter, and assailant went into the restroom and
shot employee).


Footnote 58:

     Fox v. Alascom, Inc., 718 P.2d 977, 980 (Alaska 1986).


Footnote 59:

     M-K Rivers v. Schleifman, 599 P.2d 132, 135 (Alaska 1979).


Footnote 60:

     The positional risk doctrine provides compensation for
situations in which an injury "would not have occurred but for the
fact that the conditions and obligations of the employment placed
the claimant in the position where he was injured."  According to
Professor Larson, the doctrine applies only to neutral forces, such
as "stray bullets [or] roving lunatics," which are "neither
personal to the claimant nor directly associated with the
employment."  1 Larson's sec. 3.06, at 3-6.


Footnote 61:

     Temple also challenges the Board's failure to award him
attorney's fees.  AS 23.30.145(b) authorizes reasonable attorney's
fees for injured employees who successfully prosecute workers'
compensation claims against their employers.  Because we affirm the
Board's denial of Temple's workers' compensation claim, Temple is
not entitled to attorney's fees.