New Castle County -- Civil Division
February 23, 1996
Mr. Joseph Paesani
Director, Community Services
Department of Correction
1601 North Pine Street
Wilmington, DE 19802-5037
Re: Applicability of Workman's Compensation to Off Duty Probation/Parole Officers
Dear Mr. Paesani:
You have asked whether an off duty probation/parole officer would be covered by worker's compensation when s/he becomes injured while in the process of keeping the peace by an individual who is not on probation or parole.
For the reasons that follow, we conclude that an injury sustained by a probation/parole officer, inflicted by a non-client, when s/he is attempting to keep the peace, is considered an injury "arising out of and in the course of employment" and therefore would be covered by worker's compensation.(1) The Worker's Compensation Act ("the Act") provides in part:
Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies. (emphasis added)
19 Del. C. § 2304.
Probation/parole officers, being state employees, would be covered by the act because "employee" is defined to include "every person in service of any...public...association...under any contract of hire....". 19 Del. C. § 2301(9).
In determining whether an injury sustained by an off duty probation/parole officer would be covered by the Act, it is important to note that Delaware case law favors a liberal interpretation of the Act:
Workmen's Compensation Act is liberally construed to fulfill its twin purposes of providing a scheme for assured compensation for work-related injuries without regard to fault and to relieve employers and employees of expenses and uncertainties of civil litigation.
New Castle County v. Goodman, Del. Supr., 461 A.2d 1012 (1983).
19 Del. C. § 2301(15) (a) defines accidents "arising out of and in the course of the employment" and provides coverage for injuries sustained by an employee who is engaged in or about his employer's business "where his services require his presence as a part of such service at the time of the injury....". 19 Del. C. § 2301(15). A claimant must prove a clear causal relation between the injury and the employment. The injury must arise from the nature, conditions, obligations or incidents of the employment. Otherwise, the claimant must establish a connection between the employment and the injury in which the employment was a substantially contributing, even if not necessarily the sole or proximate, cause of injury. Dravo Corporation v. Strosnider, Del. Super., 45 A.2d 542 (1945). It is sufficient if the injury arises from a situation which is an incident of or has a reasonable relation to the employment and that there is some causal connection between the injury and the employment. Id. Even when an off-premises journey would not normally be covered by workmen's compensation, it may be brought within the course of employment when urgency connected with the journey is sufficiently substantial to be viewed as part of the service itself. Cook v. A.H. Davis & Son, Inc., Del. Super., 567 A.2d 29 (1989), appeal refused 567 A.2d 418 (1989).
Although Delaware has not directly addressed the issue, other courts have held that the activity of an employee in an emergency situation is removed from the realm of strictly employee-oriented activity and may be compensable if the activity is at all in furtherance of the employer's interests or if ordinary standards of humanity require the employee to act when placed in the situation by the conditions of employment. Comeau v. Maine Coastal Services, 449 A.2d 362 (Me., 1982).
The scope of employment is impliedly extended to include performance of acts designed to save lives or further the employer's interests in emergencies, justifying departure from employer's instructions as to employee's duties. Reilly v. Weber Engineering Co., N.J. Super., 258 A.2d 36 (1969). In Reilly, a city fire captain investigating emergency at the request of a co-worker fell to his death while trying to rescue a boy caught in electric wires. The accident was found to be in the course of employment. Id. at 36.
The powers of a probation/parole officer are defined in 11 Del. C. § 4302 (15). Probation and parole officers, as employees of the Department, have investigatory and other powers as provided by law or the Department of Corrections. Section 4321 further provides that such officers shall have the same powers as constables under State law. The constables' powers are set forth in 10 Del. C. ch. 27. A constable has the statutory duty to preserve the peace and good order of the State, 10 Del. C. § 2701, and shall exercise the "same powers as peace officers and law-enforcement officers, in order to protect life and property, while in the performance of the lawful duties of his employment." 10 Del. C. § 2705 (1).
By virtue of the comparison, it is our opinion that since, inter alia, a probation/parole officer has a duty to keep the peace, a duty that exists 24 hours a day, any injury sustained while attempting to keep the peace would be covered under the Act.
However, this opinion should not be read to suggest that probation/parole officers have an unlimited ability to exercise their discretion under any particular circumstance. The manner and use of deadly force or the circumstances under which one of your officers should commence any action should be the subject of an appropriate departmental policy and procedure directive. You should check with the Council on Police Training or the State Police since they have guidelines for the use of weapons as part of their training and certification. You should also consider the fact that in any given jurisdiction the local, county or state police are the authorities of first recourse in the event a crime is witnessed. In fact, the Capitol Police are in the process of working out a jurisdictional agreement with the Dover Police Department and you might want to consider reviewing their protocol as a guide or model for your officers. Our office is available if you have any legal questions about such a policy.
If you have any questions, please contact our office.
Very truly yours,
Wendy A. Rising
Deputy Attorney General
Michael J. Rich
cc: Hon. M. Jane Brady, Attorney General
Keith R. Brady, Esq., Chief Deputy Attorney General
Malcolm S. Cobin, Esq., Assistant State Solicitor
Ms. Elizabeth Bacon, Opinion Administrator
1. Although Delaware is silent on the issue, other states are in agreement that an assault constitutes an "accident" within Workmen's Compensation Act despite its willful or criminal nature. Meo v. Commercial Can Corp., N.J. Super., 192 A.2d 854 (1963).
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