Louisiana Court Allows Case for Workplace Violence Due to Off-Work Dispute
The Louisiana Court of Appeal recently issued a decision allowing an employee to pursue a claim against her employer arising from an incident of workplace violence involving a coworker. Although the court’s decision is unlikely to apply in Wisconsin, the case is instructive about the difficulties of dealing with workplace violence. Also, the Occupational Safety and Health Administration (OSHA) has promulgated a directive on workplace violence that all employers should carefully review and consider.
Towana Carr and Kevin Michael Webb, who were both employed by Sanderson Farms, were involved in an altercation on the employer’s premises during working hours. Carr alleged that Webb deliberately struck and injured her with a piece of equipment known as a “pallet jack.” She sued Webb and Sanderson Farms, claiming the company was vicariously liable for Webb’s intentional conduct and was negligent because it failed to prevent him from injuring her.
Carr’s claim included the following allegations: Webb was hired by Sanderson Farms on July 23, 2010. For several years before he began his employment at the company, he engaged in a pattern of criminal conduct. Because Sanderson Farms conducts preemployment background checks on job applicants, it was aware of his criminal history and propensity for violent behavior, particularly against women.
After hiring Webb, Sanderson Farms documented two instances of physical altercations involving Webb. One occurred off the premises at a bar on February 5, 2011, and resulted in Webb injuring his hand and missing a day of work. A second incident at work on November 2, 2012, resulted in him being suspended from work for three days for fighting.
Carr and Webb worked in the same division and section at Sanderson Farms and were assigned the same shifts at all pertinent times. Carr was personally acquainted with Webb because he was in a relationship with her cousin, Kathryn Hess. According to her, his relationship with Hess was marked by several incidents of domestic violence. After one incident on September 25, 2011, he was arrested and charged with domestic abuse battery. He appeared in court twice on that charge, on December 1, 2011, and April 23, 2012, and provided Sanderson Farms a copy of the notice issued for both court dates.
A second altercation occurred on December 14, 2012, at Hess’ residence. Carr was present and, in an effort to protect Hess, positioned herself between her cousin and Webb, demanded that Webb leave, and instructed another individual to call the police. In response, Webb told Carr, “Bitch, don’t worry about it. I’ll get at you. I work with you.”
On the next workday, Carr reported the off-duty incident to her supervisor, Jude Cambrie, and her shift manager, Luke McDaniel. She described the confrontation with Webb and his threat to “get” her, and she expressed fear for her safety around him. Cambrie replied that Sanderson Farms couldn’t do anything at that time and she should notify Cambrie if Webb said anything to her at work. McDaniel similarly stated that since “it didn’t happen here, we can’t do anything.”
Carr apparently worked without incident for the next two weeks. However, on January 4, 2013, she encountered Webb while he was transporting a one-ton container of dry ice using a pallet jack. According to Sanderson Farms’ policy, an employee operating a pallet jack must stop the machine when pedestrians are present and allow them to pass before resuming movement of the equipment. But Webb didn’t stop the pallet jack; instead, he deliberately steered the machine into Carr, who was struck in the left leg, despite her attempt to avoid being hit. She said something to Webb, who then turned the pallet jack around and hit her again, this time striking her in the chest. She then filed a claim of negligence against her employer.
Court of Appeal’s Decision
The trial court and the court of appeal initially rejected Carr’s claim against Sanderson Farms. The courts found her allegations that Webb threatened her weren’t sufficient to establish foreseeability of his intentional conduct. However, she was permitted to amend her complaint to add further details.
The court of appeal found the amended complaint was sufficient to allow Carr to pursue her case against Sanderson Farms. The court stated that if an employer knows or should know of a dangerous condition or person on its premises, it is obligated under Louisiana law to take reasonable steps to protect its employees.
Sanderson Farms was allegedly aware that Webb, an employee with a known history of violent behavior in the workplace, had threatened to “get” Carr, a coworker on the same shift who worked in proximity to him on a daily basis. When made aware of that threat, Sanderson Farms allegedly failed to take any steps to protect Carr, and as a result, she sustained injuries in an attack by Webb.
Based on those allegations, the court of appeal found the trial court erred in dismissing Carr’s claim against Sanderson Farms. Carr v. Sanderson Farms, Inc., No. 2016 CA 1064 (La. Ct. App., Feb. 17, 2017)
Wisconsin’s worker’s compensation law generally immunizes employers from negligence claims by employees based on injuries that occur in the workplace. Louisiana worker’s comp immunity doesn’t apply to injuries arising out of a dispute with another person or employee over matters unrelated to the injured employee’s employment.
While there are some exceptions to Wisconsin’s immunity provisions, such as the rarely invoked “dual persona doctrine,” which may apply when an employee is injured at the employer’s place of employment but the injury is unrelated to her work, Wisconsin law is generally broader in scope in terms of allowing for immunity. Depending on the circumstances, an employee who is attacked by another employee at work may be covered by worker’s comp.
OSHA has issued an updated directive on employee violence, which can be found at www.osha.gov/OshDoc/Directive_pdf/CPL_02-01-058.pdf. The directive provides policy guidance and procedures for conducting inspections and issuing citations related to occupational exposure to workplace violence. It includes
a simple flowchart for when OSHA should investigate workplace violence. An employer may be found in violation of the General Duty Clause if it fails to reduce or eliminate serious recognized hazards, including workplace violence.
Workplace violence continues to be a major concern for employers. While violent situations can be difficult to predict, you must be vigilant when employees raise concerns about coworkers or nonemployees, including spouses or ex-spouses. Wisconsin law will likely immunize you from tort (personal injury) liability, but there’s still a potential for worker’s comp coverage. Also, federal law may apply, and you could be found liable under OSHA’s General Duty Clause.
This article, slightly modified to note recent updates, was featured in the June 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources