Workers Compensation Bar Not Applicable to Claim Based on Coworker Assault

In late 2005, the Supreme Court of Virginia held that the exclusive remedy provision of the Virginia Workers’ Compensation Act did not bar a suit for damages against a defendant employer based on allegations of coworker assault.

The plaintiff’s claims against the employer were based on theories of negligent hiring and retention, respondeat superior liability (employer responsibility for the wrongful acts of its employees) for the assault and battery, and intentional infliction of emotional distress. The employer knew of the coworker's criminal history, which included a conviction for a violent crime. The plaintiff alleged that her coworker assaulted her while the two were traveling in a company delivery truck en route to a delivery. Following the alleged assault, the coworker was convicted of misdemeanor assault and battery.

When the plaintiff sued the employer on the above described tort theories (civil wrongs for which the law provides a financial remedy), the employer asserted that the Workers’ Compensation Act provided the exclusive remedy, arguing that the injury satisfied both prongs of the two-part test to determine coverage under the Act - that the injury “arose out of” and “in the course of” employment. The Supreme Court of Virginia disagreed with the employer, holding that, although the assault occurred “in the course of” the plaintiff's employment, the assault was “personal to the employee and not directed against [her] as an employee or because of [her] employment.” As such, it did not “arise out of” her employment. On this basis, the Court determined that the assault did not fall within the ambit of the Workers’ Compensation Act.

In light of this case, employers should be aware that the Workers’ Compensation Act does not cover every potential workplace injury and take appropriate safeguards to reduce exposure to tort liability. Increasingly, courts are indicating a willingness to give careful, case-by-case examination to the usually effective workers’ compensation defense to personal injury claims occurring in the workplace.

Butler v. Southern States Cooperative, Inc., 270 Va. 459 (2005)

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2018.

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