Recent statistics indicate a dramatic increase in injuries and/or death suffered as a result of workplace violence. This increase in workplace violence has also caused an increase in litigation resulting from workplace injuries.
Workplace violence claims relate to torts committed by employees against third parties or coworkers. Most frequently, the injured third party is a business invitee who seeks to impose liability upon the employer for an injury inflicted by an employee.
Claims may be initiated by third parties or by coworkers and may impose direct liability upon the basis of the employer’s own fault or am employer may be liable for the actions of another under the doctrine of respondeat superior.
Elements of Plaintiff’s Cause of Action
- Claims by Third Parties – Direct Liability – Many workplace violence cases assert that the employer was negligent in hiring, supervising or retaining the offending employee. Where the facts establish negligence, the plaintiff can bypass conceptual difficulties that may arise if the plaintiff alleges that an intentionally inflicted injury was within the course and scope of the employee’s employment. In these cases, the liability that the plaintiff seeks to impose is direct liability – it does not involve the imputation of the employee’s tort to the employer.
When the plaintiff’s claim is that of negligent hiring, supervision or retention, the ordinary elements of actionable negligence apply. Specifically, the plaintiff carries the burden of establishing that the employer’s conduct fell below the standard of care required by law. This may involve a claim that the employer hired an individual with known dangerous propensities, or at least failed to adequately investigate the employee’s background. Frequently, employers may be held liable if they fail to adequately supervise the employee and/or continue to retain the employee after his or her dangerous propensities have been demonstrated. Direct liability might also be based on theories of the negligent failure to warn third parties of an employee’s dangerous propensities, or the maintenance of premises rendered unsafe by the employee’s tortious propensities.
- Claims Initiated by Third Parties – Vicarious Liability – Although many workplace violence cases seek to impose direct liability on the employer, vicarious liability theories are also frequently asserted. As in other vicarious liability cases, the plaintiff must demonstrate that an employer/employee relationship existed, and that the tortious conduct occurred within the scope of such employment. It is this latter element that is most problematic, because employers frequently assert that intentional torts committed by employees are outside the scope of employment. Accordingly, the factual issues that are litigated in vicarious liability cases frequently focus on the nature and extent of the employee’s job duties, and whether the injury-producing event was reasonably foreseeable as an incident to the employment. Moreover, an act otherwise outside the scope of employment may be imputed to the employer if the claimant can demonstrate that the employer in fact ratified the wrongful conduct.
- Claims Initiated by Coworkers – As a general proposition, the workers’ compensation system constitutes the worker’s exclusive remedy for torts committed by his or her coworkers. The employer is exempted from civil liability when the nature of the worker’s duties expose the worker to the risk of injury at the hands of a coworker.
Although the employer is ordinarily protected from civil suit under the workers’ compensation system, certain exceptions do apply. The first involves a situation in which injury results from a willful assault by the employer. This may occur when the employer personally commits the tort or when the employee’s act is imputed to the employer as a result of the employer’s previous authorization or subsequent ratification.
A second exception exists when the employer is aware of the employee’s dangerous propensities and intentionally conceals this known danger. Yet another exception might apply when plaintiff’s claim is directed against the employer as a premises owner who maintained a dangerous condition upon the workplace premises.
Workplace violence cases involve the normal range of defenses otherwise available to parties accused of negligence or other forms of liability for intentional torts. Accordingly, where the claim is predicated upon negligent hiring, supervision or retention theories, the employer may assert the plaintiff’s contributory negligence or assumption of risk to defeat the claim.
Similarly, when the claimant seeks to impose vicarious liability on the basis of respondeat superior, traditional tort defenses apply. The employer may contend that there was no employer/employee relationship, or that the offending employee’s conduct was outside the scope of employment.
Finally, the injured employee may seek to impose liability upon the employer as the owner of dangerous premises. In such cases the general principles of premises liability apply, and the employer may seek to establish that there was no prior notice of the employee’s dangerous propensities, and hence no notice of any dangerous condition existing upon the premises.
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