## Facts

- Dennis W. Nippert worked for Shinn Farm Construction Company erecting a hog shed near Wamego, Kansas.
- On October 18, 1979, near the end of the workday, a tornado approached while workers were inside a nearly completed 40-by-60-foot building with door openings not yet installed at two corners.
- The workers had not received tornado-warning information, and wind inside the structure became so strong they were initially unable to move.
- The building’s walls collapsed and the roof fell intact; shortly after, the tornado picked Nippert up and threw him about 30 feet, fracturing his leg and later contributing to back problems.
- The tornado caused widespread regional damage and injuries beyond the jobsite.
- Shinn paid medical expenses and disability benefits; after Nippert sought additional benefits, Shinn contested compensability.

## Issues

1. Whether an employee’s tornado-caused injuries “arise out of” employment under the Nebraska Workers’ Compensation Act when the employment placed the employee at the location and time of the tornado.
2. Whether Nebraska should apply the positional-risk test, rather than an increased-risk/act-of-nature approach, to neutral-risk workplace injuries.

## Decision

- The Nebraska Supreme Court reversed the Workers’ Compensation Court’s dismissal and remanded.
- The court held Nippert’s injuries arose out of his employment and were compensable.
- The court adopted the positional-risk test for neutral risks such as tornadoes and rejected denial based on an increased-risk requirement.

## Legal Principles

- For neutral risks (including acts of nature), an injury “arises out of” employment if it would not have occurred but for the obligations or conditions of employment placing the worker at the place and time of injury.
- Under positional risk, the employee need not prove the employment exposed him to a greater risk than the general public when the injury results from a neutral force.
- Widespread occurrence of a neutral force does not defeat compensability if the employment required the employee’s presence at the injury location and time.

## Conclusion

The court held that tornado-related injuries are compensable when employment places the worker where the neutral force strikes, adopting positional risk and removing the need to show greater-than-public exposure in such cases.


Nippert v. Shinn Farm Construction Co., 223 Neb. 236, 388 N.W.2d 820 (1986)