DECISIONPOINT THE SITUATION - continued from page 2


After a soured relationship and break up the security guard, Zadolnny meets former girlfriend Deborah Bachak in the mailroom and murders her. Zadolnny then took his own life. Bachak’s estate sued both Lockheed Martin and U.S. Security asserting that they should have prevented the murder because they knew of Zadolnny’s propensity for violent behavior.


THE DECISION


The U.S. Court of Appeals for the Third Circuit upheld the Pennsylvania Federal District Court’s dismissal of the claim against both Lockheed Martin and U.S. Security. The Court’s decision turned on whether the defendants had prior knowledge of Zadolnny’s propensity for violent behavior such that the risk of harm to Bachak became foreseeable. The Court undertook an extensive analysis of the facts, finding numerous witnesses had testified that they had previously seen Zadolnny use his night stick to prod trespassers from the facility and poke co-workers with the night stick during unwelcome horseplay.


However, the Court stated that while the wayward employee need not have committed the exact same act in the past (e.g. murder) in order to make the current act foreseeable, the employee must have committed prior acts of the same general nature (i.e. acts that show the employee is potentially vicious or dangerous and could inflict injury upon others). Importantly, there was evidence that supervisors at U.S. Security had been told by other security guards that Zadolnny “should not be allowed to carry a gun” and that “he had a temper”. However, the Court noted that such conclusory opinions by co-workers cannot form the basis for U.S. Security’s knowledge that Zadolnny may attempt to physically harm Bachak and, in any event, Lockheed Martin was never told of these warnings. Given the lack of evidence that Zadolnny was potentially vicious or dangerous or that Lockheed or U.S. Security should have known of the risk he posed, the Court found that the violence against Bachak was not foreseeable and dismissed the claim.


LEARNING AND KEY CONSIDERATIONS


Handling potentially violent employees and contractors is extremely tricky business. This case upholds the basic proposition that employers cannot be held liable for workplace violence which was not foreseeable. In other words, if the employer was not aware that the employee or contractor had behaved violently in the past, it had no reason to believe he would do so now. However, had there been evidence of past physical violence (e.g. fist fights, assaults, etc.) or had Zadolnny made verbal threats against


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