Workers' Compensation
Spring 2018

“Zone of Danger” Does Not Apply to Longshore Claims

In Ceres Marine Terminals v. Jackson, No. 15-1041 (4th Cir. Jan. 27, 2017), the Fourth Circuit declined to extend the “zone of danger” concept to claims arising under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

The claimant was operating a forklift on a pier in Virginia when he accidentally struck and killed a co-worker.  He filed concurrent claims under LHWCA and the Virginia workers’ compensation statutory scheme, alleging psychological injury from the occurrence.

With respect to the LHWCA claim, the employer took the position that the claim should be denied because the claimant was not in the “zone of danger,” first stated in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994).  The “zone of danger” theory holds that the claimant could only recover for emotional injury caused by fear of physical injury to himself.  As the claimant was unlikely to be injured by the forklift, the employer alleged the claim should be barred.  The Administrative Law Judge and the Benefits Review Board both rejected this theory, in turn, and held that the claimant had a viable claim under the LHWCA.

The Fourth Circuit agreed with the Benefits Review Board and held that the Longshore statute, on its face, only spoke to an “injury,” and did not differentiate between psychological and physical injuries.  As such, the court indicated that it could not construe the statute to limit recovery for psychological injuries when there was no imminent physical harm.  The court also rejected the applicability of Consolidated Rail to Longshore cases, as Consolidated Rail involved interpretation of the Federal Employers Liability Act (“FELA”).  FELA is, by definition, a negligence statute rather than a workers’ compensation statute, and the court was unwilling to engraft the negligence concept of a “zone of danger” on a no-fault workers’ compensation statute.

Of note, the Virginia Court of Appeals also rejected the “zone of danger” concept under the Virginia state workers’ compensation scheme and has remanded the case for further proceedings to the Virginia Workers’ Compensation Commission.  The injury in this case occurred before July 1, 2012, which was the date upon which the Virginia legislature adopted a statute denying concurrent jurisdiction for Longshore workers.  For injuries arising prior to that date, workers, like the claimant here, could avail themselves of both the Longshore and Virginia workers’ compensation systems.

For more information about this article, please contact Angela Garcia Kozlowski at 410.230.1084 or