DECISIONPOINT THE SITUATION - continued from page 2
After the victim’s shift ended, she waited to be sure the attacker had left before heading to her car. As she was approaching her car in the parking lot, the attacker pulled up alongside her and committed a violent sexual assault. There were no security guards in the lot and no one came to offer help at any point during the 15 minute assault.
THE DECISION
In ruling on the employer-Defendants’ motion to dismiss, the U.S. District Court for the Western District of Virginia upheld the Plaintiff’s claims of assault and battery under a respondent superior theory of liability, negligent hiring and negligent retention. The court dismissed the Plaintiff’s negligence claims against her employers for creating a dangerous work environment and the security company hired by her employers. These claims, the court ruled, were precluded by the state workers’ compensation statute.
The Defendants argued that dismissal of claims was required because the attack was “an accident arising out of and in the course of” Plaintiff’s employment. According to Defendants, the Virginia Workers’ Compensation Act provided Plaintiff with the sole means of recovery. Defendants compared the case to one in which a bank employee was injured during a robbery. (R&T Investments, Ltd. v. Johns, 228 Va. 249 (1984)). In that example, the court previously found that the bank employee’s injuries arose out of her employ- ment because she worked in an environment that was prone to robberies.
In contrast, the Plaintiff argued that the Defendants were applying the wrong test in looking at “potential risk.” Instead, Plaintiff argued that the proper focus of the court should be whether the injury was personal in nature--as opposed to a part of the “actual risks” associated with the employment at issue.
Ultimately the court ruled that the attack against Plaintiff was personal in nature. It was not a random assault, therefore, it was not covered by the exclusivity provisions of the workers’ compensation statute. Accordingly, the court permitted most of Plaintiff’s claims to move forward. However, the court found that Plaintiff’s general negligence claims alleged harm that does fall inside the scope of ordinary risks associated with the workplace, and dismissed those claims.
LEARNING AND KEY CONSIDERATIONS
Employers must understand that they may not be entitled to workers compensation protection in the event that an employee is a victim of workplace violence committed by another employee. Rather, an employee may claim that the employer failed to protect them from a reasonably anticipated hazard and that the employer should be held liable beyond traditional work comp liability. This
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