LEGAL DEFENSES FOR WORKPLACE VIOLENCE. Georgia Law Update

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1 LEGAL DEFENSES FOR WORKPLACE VIOLENCE Georgia Law Update Lynn M. Roberson SWIFT, CURRIE, McGHEE & HIERS, LLP 1355 Peachtree Street, N.E., Suite 300 Atlanta, GA (404)

2 Once an event has occurred and the company has been sued by the injured party (employee, vendor, third person), what defenses are available to the Company?

3 Plaintiff s Status on the Property Invitee, Licensee, or Trespasser Employee?

4 Plaintiff s Status on the Property Employees and the exclusive remedy provision of the Worker s Compensation Act Physical injury or impact Psychological and emotional distress

5 Premises or Approaches Plaintiff cannot recover if s/he cannot show s/he was on the defendant s premises or approaches. Robinson v. Kroger Co.

6 Premises or Approaches Harris v. Inn of Lake City, 285 Ga. App. 521, 647 S.E.2d 277 (2007). the term approach has been defined to mean that property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land,... By contiguous, adjacent to, and touching, we mean that property within the last few steps taken by invitees, as opposed to mere pedestrians, as they enter or exit the premises. It is only within the confines of this limited approach that [case law] imposes a duty on a landowner to exercise ordinary care over property not within the landowner's control.

7 No Superior Knowledge by Defendent Fernandez v. Georgia Theatre Co. II

8 Duty/Foreseeability Baker v. Simon Property Group, 273 Ga.App. 406, 614 S.E.2d 793 (2005)

9 Foreseeability Agnes Scott College Inc. v. Clark, 273 Ga.App. 619, 616 S.E.2d 468 (2005)

10 No Breach of Duty Brown, et al. v. AllTech

11 No Proximate Cause Brown, et al. v. AllTech But see James v. Flash Foods, Inc

12 Negligent Hiring or Retention Ashley Lakes v. Jennings Piedmont Hosp. Inc. v. Palladino

13 Other Defenses Bradford Square Condominium Assoc. Inc. v. Miller, ACOG v. Hawthorne

14 Claim for Failure to Warn No such duty according to Lau s

15 Equal Knowledge Dolphin Realty v. Headley, 271 Ga. App. 479, 610 S.E.2d 99 (2005), cert. denied

16 Equal Knowledge Cook v. Micro Craft Inc. Fernandez v. Georgia Theatre Co. II

17 Equal Knowledge In the recent case of La Quinta Inns Inc. v. Leech, 289 Ga.App. 812, 658 S.E.2d 637 (2008) the Court of Appeals held that any error in the trial court s ruling that the evidence demanded a finding that the hotel guest committed suicide by jumping out the guest room window did not warrant reversal, even assuming that the guest s death was accidental, since the evidence showed that his knowledge of any hazard the window presented (such as the absence of window stops and the width to which the window would open) was at least equal to the hotel s thereby extinguishing the premises liability claim.

18 Equal Knowledge

19 Victim Possesses "Superior Knowledge" Most security experts agree domestic disputes very difficult to deter Courts disfavor holding proprietor liable for violence between known persons

20 Victim Possesses "Superior Knowledge" Britt v. Kelley & Picerne, Inc., 258 Ga.App. 843, 575 S.E.2d 732 (2002) defendants successful on summary judgment Cook v. Micro Craft Inc., 262 Ga.App. 434, 585 S.E.2d 628 (2003), cert. denied

21 Voluntary Participation In Altercation Habersham Venture, Ltd. v. Breedlove Hansen v. Etheridge Johnson v. AHA - i.e., assumption of the risk for living in public housing? Fernandez v. Georgia Theatre Co. II

22 Issues Arising From Various Attack Sites

23 ATM Lighting Shrubbery Panic button Guarding O.C.G.A. 78-1, et seq.

24 Hotel/Motel

25 Locks Type and effectiveness lock changes repair

26 Keys and Key Control

27 Parking Lots/Decks

28 Access Control/Lighting

29 Surveillance Cameras/CCTV

30 Malls

31 Convenience Stores

32 Fast Food Restaurants OSHA Recommendations for Workplace Violence Prevention Programs in LateNight Retail Establishments

33 Apartment/Condominium

34 Security Guards/Courtesy Officers How many? Training? Hours and areas covered Background checks? Armed v. unarmed Private v. off-duty police Equipment provided