Current Issues in Litigating Civil Workplace Crime Cases Presenter By: Brian D. Kent, Esquire 1435 Walnut Street, Suite 700 Philadelphia, PA 19102 (215) 399-9255 bkent@lbk-law.com www.linkedin.com/pub/brian-kent/5/52b/772 www.facebook.com/laffeybuccikent
Introduction General Types of Workplace Crime 1. Crimes connected to the employment (i.e., assault of bar bouncer, robbery of gas station attendant), 2. Crimes not connected to the employment (i.e., random gun violence), and 3. Violence imported from an employee s personal life to the employment (i.e., domestic violence). Workplace Factors Which Contribute to Crime exchanging money with the public, working in isolated areas, working alone, working late at night, working in areas of high crime, working where alcohol is served, and making deliveries.
Agenda Workers Compensation (W/C) Exclusivity Exceptions to W/C Exclusivity Third Party Liability Insurance Coverage Discovery
Workers Compensation Exclusivity The principle of workers compensation (W/C) originates as far back as ancient times. W/C was well entrenched in British law. However, the U.S. was relatively slow to embrace W/C. We see the first W/C laws passed in the early 20 th century. Historically, courts generally applied the exclusivity bar in any work-related accident (course and scope). Over the last 20 years, we see courts willing to expand the scope of certain exceptions to the exclusivity bar. These exceptions vary from state to state.
Exceptions to the Workers Compensation Exclusivity Bar 1. Intentional Conduct of ER 2. Personal Nature 3. Dual Capacity 4. Special Relationship between ER and EE 5. Failure to Obtain W/C Insurance
ER s Intentional Conduct Conduct: IIED, False Imprisonment, Assault & Battery, Ratification of a Co-Worker s Intentional Conduct Key Elements: intentional conduct which cannot be considered to be a normal risk of employment or is contrary to fundamental public policy (CA) willful conduct (PA) consequences of an act substantially certain to result in harm (NJ) deliberate intent to injure (FL) Example: Tom Voorhees Discovery Tip: File your case early on. Obtain employment files, manuals, code of conduct/manual.
Personal Nature (Claims Against EE and ER) Conduct: Physical Assaults, Sexual Assaults Claims can be brought against co-workers as well as the ER Key Elements: Pleading Tip: Check your state case law and plead the exact language of the exception. Discovery Tip: Vet your client s and defendant s social media profiles. act was personal to the EE and not connected to the employment (PA) intent to injure the EE because of personal reasons, not directed against the EE as an EE, or because of the employment (MN) personal to the employee and not directed against him as an employee or because of his employment (VA) personal animosity" exception applies to injuries resulting from a dispute which has been transported into the place of employment from the injured employee's private or domestic life, at least where the animosity is not exacerbated by the employment (TX) Example: Padilla v. Silver Diner, 63 Va. Cir. 50 (Cir. Ct. Virginia Beach, 2003) (female EEs subjected to repeated, vulgar sexual advances by male EEs. Acts were reported to ER who failed to respond. EEs claims against male EEs and ER allowed)
Dual Capacity ER acting in another capacity (i.e., as premises owner) Example: Homebuilder is owner and developer under different contracts, with different duties. There may be a dual capacity argument. Fry v. Pepsi Bottling Group, (NJ. App. Div. July 3, 2012) Plaintiff-cook tripped over canisters of soda delivered by Pepsi and sued her employers (also owners of restaurant building). Plaintiff argued ERs owed her a duty independent of the employment, as property owners. "Here, the alleged negligence related to a transient condition in the workplace, rather than a structural or similar problem with the building. For that reason, we conclude that Fry's claims against Palroll [employer] and the Rohls are barred by the [Workers Compensation] Act."
Special Relationship Between EE-ER Conduct: Homicide, Robbery, Assault, Sexual Assault Key Elements: ER creates the danger or increases risk of harm (MA, Brun v. Caruso) Special promise to EE (AZ, Circle K v. Rosenthal) Discovery Tip: Look at employment contracts for express promises between ER and EE. Example: Brun v. Caruso, (2004) Decedent-EE (waitress) killed by restaurant patron and intermittent handyman of restaurant-er. ER aware of the patron/perpetrator s repeated harassment of other waitresses over a 10 year period prior to the murder. The patron/perpetrator frequented the restaurant on a nearly daily basis prior to the murder and also engaged in hostile, bizarre acts against decedent, of which employer was aware, including cutting gas lines at the restaurant. The court held that there was sufficient evidence of a special relationship between the deceased employee and employer, giving rise to the tort claim. In addition, the court recognized that the employer-employee relationship may give rise to a duty to protect the employee from reasonably foreseeable third party criminal acts.
ER Fails to Obtain W/C Insurance Failure to obtain W/C insurance exposes ER to liability for tort claims. Caveat: ERs general liability policies usually contain exclusions for injuries to EEs.
3 rd Party Liability Issues - Franchisor Liability for Acts of Franchisor Conduct: Homicide, Robbery, Assault, Sexual Assault Key Elements: Discovery Tip: Obtain the franchisorfranchisee contract, operating manuals, etc. apparent authority and/or vicarious liability franchisor maintained sufficient control over the relevant procedures and operating protocols. Example: KY franchisor liability case (2007). McDonalds liable for EE s sexual assault, pays $6.1 million ($5 million in punitives)
3 rd Party Beneficiary Status Contract between ER and a third party Issues: 1. Whether your state extends third party beneficiary status to the crime victim and that usually depends on the express terms of the contract (intended versus incidental beneficiary) 2. Whether emotional damages are permitted in a breach of contract action (physical injury) Espinal v. Melville Snow Contrs. (NY 2002) 1. a contracting party fails to exercise reasonable care in the performance of his duties, and thus "launches a force or instrument of harm;" 2. the third party detrimentally relies on the continued performance of the contracting party's duties; 3. a contracting party has entirely displaced the other party's duty to maintain the premises safely.
3 rd Party Beneficiary Status Example: Komajda v. Wackenhut (Mich. Ct. App. 2002) (allowing the deceased EE estate s third party beneficiary breach of contract claim where EE was shot by co-worker, since the contract between ER and security company specifically recognized the latter s duty to protect all EEs; therefore the deceased EE was an intended beneficiary) Emotional Damages: Whether emotional damages are recoverable in a breach of contract action largely depends on whether there was a physical injury. E.I. DuPont de Nemours & Co. v. Pressman (DE 1996) (finding damages for emotional distress unavailable in breach of contract action in the absence of physical injury or IIED) Erlich v. Menezes (CA 1999) (recognizing that in California, tort damages are permitted in contract cases where a breach of duty directly causes physical injury) St. Charles v. Kender (MA Ct. App. 1995) (recognizing that emotional damages for breach of contract resulting in personal injury are permitted in Massachusetts).
Pleading - Insurance Insurance Exclusionary Clauses 1. Look for some level of intoxication 2. Plead non-intentional language as it pertains to the ER State Farm v. DeCoster, 2013 PA Super 121 (PA Super. Ct. 2013) (insured s act of shooting house guest in drunken haze created issue of material issue - whether act was intentional; therefore insurer s motion for summary judgment on duty to defend/indemnify denied) Spengler v. State Farm Fire & Cas. Co. (FL 1 st DCA 1990) (insurance policy exclusionary clause inapplicable where homeowner shot girlfriend believing she was an intruder due to homeowner s lack of intent to harm) Allstate Ins. Co. v. Merritt (TN App. 1989) (where homeowner shot person mistaking him for an animal, the issue was whether the insured reasonably intended the injury) Curtain v. Aldrich (MO App. 1979) (exclusionary clause inapplicable where insured mistook brother-in-law for burglar, beating him with a crowbar)
Discovery in a Civil Workplace Crime Case Discovery Employers Pre-employment screening hiring procedures and documents Employee file Disciplinary process and specific enforcement Performance evaluations Employee assistance programs Training materials Third parties Deeds and property documents Security and alarm system agreements Prior crimes and complaints in the area State and Federal Regulations & Workplace Safety OSHA General duty clause Guidelines for Health Care and Social Workers Guidelines for Night Retail Establishments OSHA policy regarding violent employee behavior Staff to resident ratio in nursing home and workplace violence cases Potential OSHA ban on guns in the workplace State Specific Guidelines
Brian D. Kent, Esquire 1435 Walnut Street, Suite 700 Philadelphia, PA 19102 (215) 399-9255 bkent@lbk-law.com www.linkedin.com/pub/brian-kent/5/52b/772 www.facebook.com/laffeybuccikent