N. Liability for Assaults

Cases in this area vary markedly depending upon the facts. First, many courts have held that the workers' compensation laws cover injury or death of an employee in the course of his employment arising from an attack, assault, or shooting by a fellow employee, customer, intruder or police officer. However, compensation is not always awarded to a worker who is assaulted at work when the assault arose out of a personal grievance (e.g., a lover's quarrel) unconnected with the worker's job even if it takes place during office hours. In such cases, when it merely provides a place where the assailant can find the victim, the role of employment in the assault is usually inconsequential.

NOTE: If an employee's job places him/her in a position of increased risk, compensation may be awarded even for a personally motivated assault. In one case, for example, an employee who worked as an outside salesperson was lured to an isolated house by her former husband ostensibly on business and was killed there by him. Since her solo job duties exposed her to increased risk of assault, her family was awarded benefits.

In cases where assaults are committed by supervisors and employees, the issue of determining employer liability typically leans on whether: (1) the assault occurs on or off company premises; (2) the assault occurs outside of or during work hours; (3) whether the assault was reasonably foreseeable knowing the history of the worker or supervisor; and (4) whether or not the assault was outside the scope of the worker's duties and employment.

Courts typically look at whether the assault was motivated by a personal grievance, harassment or threats, or whether it was job related. In cases of this nature, courts have generally held that an employer can be held liable for violence only where the aggressive employee holds a job which is likely to bring him into conflict with others. For example, employers have been held responsible for the acts of security guards, investigators, and assaults committed by employees whose functions are to guard or recapture company property.

Counsel Comment #89: Supervisors should be instructed that, if a discharged employee becomes rambunctious, they should contact the company security force or the local police and let them take over. If an assault occurs, even after the worker is let go, the company may be held liable for any damages to either the supervisor or worker.

Always draft and include in your company handbook a statement prohibiting fighting or assaults on-the-job. State in the rules of conduct section that all employees must conduct themselves properly to ensure an orderly and harmonious work environment and that assaults, unprovoked attacks, threats of bodily harm against anyone, horseplay, violations of company safety rules and unauthorized possession of weapons and firearms on company property will subject the employee to immediate disciplinary action, which may include discharge. Apply all discipline rules uniformly, making decisions on a case-by-case basis after careful planning and discussion with counsel.

With respect to accidental injuries caused by a co-worker on company premises (such as a car accident in the company parking lot), many factors are considered before determining employer liability. In one case the Illinois Appellate Court declared that an accidental injury to an employee while on the employer's premises, going to or from his employment by a customary or permitted route within a reasonable time before or after work, and which is received in the course of and arises out of the employment, cannot be sustained in a common lawsuit but must be redressed in a workers' compensation forum since accidental injuries received in parking lots maintained by employers for the use of their employees arise out of their employment.

Counsel Comment #90: Most employees who are injured prefer to bring lawsuits based on common law theories rather than workers' compensation claims. This is because negligence suits against an insured driver or employer often produce larger awards for an accident victim than claims filed with a workers' compensation agency, especially where responsibility for the accident lies entirely with the co-worker. Always instruct litigation counsel to consider removing any lawsuit to a hearing before the appropriate workers' compensation tribunal where applicable.