Just last Thursday I wrote about a Georgia case where the appellate court ruled that the mother of a worker shot twice in the head by a temporary staffer with a felonious history could pursue a wrongful death case against the staffing agency and the business.
The court said the murder did not arise out of Zephyrine's employment as a matter of law.
"The words 'arising out of' mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received," the court said.
In this case, the court said, the record was "devoid of any connection between the attack and Zephyrine’s work or workplace."
Today it was reported that the Louisiana Court of Appeals ruled that a worker deserves a second chance to assert her claims that her employer failed to protect her from a coworker who ran her over with a pallet jack after threatening to hurt her.
Towana Carr and Kevin Webb were employees at Sanderson Farms. There was "bad blood" between them because of the soured relationship between Webb and Carr's cousin.
Webb had been Carr's cousin's live-in boyfriend, and the couple had a child together, according to the complaint.
Carr says Webb has a history of domestic violence involving her cousin, and that Webb threatened Carr herself with physical violence after witnessing one act.
She believed Webb would make good on his threat, and told her supervisors. They told her, according to the complaint, the company could not do anything because the threat had not been made on Sanderson Farms property.
As Carr was returning from her lunch break on Jan. 4, 2013, Webb struck her in the leg with a pallet jack loaded with one ton of dry ice.
The impact knocked her sideways. Webb then turned the jack around and struck Carr a second time, in the chest.
Carr filed a claim seeking comp benefits for her injuries, but a workers' compensation judge denied her claim. The judge found that Carr's injuries did not arise out of her employment, because they were the product of a "non-work related dispute" with Webb.
Carr then filed a civil suit against Sanderson Farms. She claimed the company was negligent because it had done nothing to keep her safe when it knew her work put her in close proximity to Webb for eight hours a day, five days a week.
She also claimed that the company could be held vicariously liable for Webb's conduct.
Sanderson Farms responded that Carr's exclusive remedy for any negligence claim against it had to lay in the workers' compensation system. It also asserted that it could not be vicariously liable for the alleged intentional act committed by Webb because that conduct was not within the scope of his assigned duties or in furtherance of Sanderson Farms' business pursuits.
The district court judge granted summary judgment in favor of Sanderson Farms, and Carr appealed.
The 1st Circuit Court of Appeals upheld most of the dismissal but left a door open to try again.
Under Louisiana law, an employer can be held vicariously liable in tort for the intentional acts of its employees, the court said, but an employer is not vicariously liable for an employee's conduct merely because his employee committed the intentional tort on the business premises during working hours.
"Vicarious liability will attach only if the employee who commits the intentional act does so within the ambit of his assigned duties and in furtherance of his employer's objective," the court explained.
Since Carr's petition for review did not allege any facts explaining why Webb intentionally struck Carr with the pallet jack, the nature or scope of Webb's employment duties, or how his intentional tortious conduct was incidental to those duties, the court said there was no possible basis to support a finding of vicarious liability.
However, the court said the trial court was incorrect to find that the workers' compensation system provided the exclusive remedy for Carr's injury.
Although negligence claims by an employee against her employer for injuries sustained on the job are typically barred by the exclusivity provision of the workers' compensation act, the court said, the act does not cover injuries arising out of a dispute with another person over matters unrelated to the injured worker's employment.
"When an injury or illness is specifically excluded from the scope of the Workers' Compensation Act, the exclusivity provision of the act does not apply, and the employer is not immune from a tort suit based on that injury," the court said.
An "employer has a duty to exercise reasonable care for the safety of his employees and to not expose them to unreasonable risks of injury or harm," so it was possible for an employer to be held civilly liable to an employee who was the subject of an intentional act committed by a co-worker if the employee notified the employer of threats made by the co-worker away from the workplace, opined the court.
Even though Carr had provided no allegations about the content of Webb's threats, the number of threats, or the relation between the threats and the intentional act, it's possible such facts exist, so, "out of an abundance of caution, this matter will be remanded to allow Carr the opportunity to amend her petition."
There's an interesting dichotomy at play, particularly in cases involving work place violence.
An employer, statutorily and by common law, generally has a duty in the United States to provide a safe work place. How that standard is established and supported is viscous, at best.
So, it makes some sense that there is a penalty against the employer for failing to do so. The law should promote a duty by the employer to do all it can to provide a safe work environment.
On the other hand, if an employer has done all it reasonably can to provide safety at the work place, then the payment of a workers' compensation obligation may come down to who actually is encumbered with the duty - the employer's insurance company, third party administrator, or the employer itself.
Each has their own take on whether or not liability should be accepted under the work comp system, and part of the equation comes down to which pocket the money comes out of.
From the social perspective, though, just how far must an employer delve into an employee's personal life to ensure the safe work place?
Or put another way, just how much personal responsibility can an employee delegate?
The lines are unfortunately opaque.
Workplace violence cases are very fact specific, and seem to depend on whether one is looking at the financial responsibility or social responsibility (and sometimes those get confused too).
To read the Louisiana Court of Appeals decision, click here.
To read the Louisiana Court of Appeals decision, click here.
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