Case Review: Work Place Violence and the “Positional Risk” Doctrine in Workers Compensation Cases
Earlier this year, the Georgia Court of Appeals handed down two decisions that illustrate the tension between personal injury law and workers compensation law.
Cain [not his real name] shot Abel [again, name changed to protect the innocent] in the back of the head at work and killed him. New on the job, Abel was waiting for instructions on how to get fuel for his fork lift. The Court of Appeals left plenty of room in its review of the facts to speculate that Cain might have been on drugs, and that he may have let jealousy get the better of him.
Abel had talked to a female co-worker in the office about getting fuel for his forklift just before he got shot, and he had stepped out of the office to wait for a supervisor. Abel and the female co-worker were casually acquainted outside of work but nothing in the facts suggest they were anything other than family friends.
Cain went into the office when Abel came out. He tried to kiss the female co-worker, but she refused him. Cain then stepped out of the office, shot Abel in the back of the head, and went back into the office and tried to rape the co-worker before he passed out.
Abel’s mom sued Abel and Cain’s employers for wrongful death, a statutory claim rather than a common law claim. Even though it is a statutory claim, a wrongful death claim allows damages — a reimbursement in the form of money. A jury decides the amount of damages in a wrongful death case by calculating the value that the deceased would have put on his own life. If Abel’s mom had brought a workers compensation action, which is also a statutory action, she would have been limited to the meager benefits that the workers compensation statutes allow.
A wrongful death action wasn’t the best available claim. It can allow a much larger money recovery than a workers compensation action, but it also requires proof of fault. The fault that Abel’s mom alleged was that the employers shouldn’t have hired Cain to begin with. One of the employers supplied temporary warehouse workers to the other, and there was an agreement between the two employers that new hires would be screened with criminal background checks. Cain got the job under an alias, he may have used a counterfeit photo ID to get the job, and even though the criminal record wouldn’t have turned up under the alias that Cain used, the employer that promised to get the criminal background check never even bothered to get it. So everybody missed the fact that Cain was a convicted felon.
The employers obviously had at least some degree of fault, but the wrongful death action was still a longshot. Its easy enough to make out a vicarious liability claim against an employer, but not so easy to prove the employer’s separate liability for negligent hiring.
Look at it from the employer’s perspective: If your employee hurts somebody while he’s working in the course and scope of your business, you have a financial obligation to make the harm good. If your delivery person runs over a kid on a bicycle, you have to pay for the injuries. You share your employee’s obligation to fix whatever harm she did because she was doing your business when she caused the harm. It makes sense. Vicarious liability is almost a given.
But “negligent hiring” means you shouldn’t have hired the guy to begin with. This makes a lot more sense if you have a legal duty to screen your employees. For example, a trucking company has a duty to make sure its drivers have good driving records and that they have clean histories on random drug-screens. Daycare centers and after-school programs obviously have no business hiring known sex offenders. But hiring a known pothead to serve pizza and beer in the restaurant? If he’s never going to drive the delivery wagon? How is that negligent?
Abel’s mom’s case wasn’t as completely hopeless as a case against an employer for having a pothead behind a pizza counter. After all, Cain’s boss did let a convicted felon come to work with a handgun, but the defense would have gone something like this:
“Look, this guy did his time. We might have been ignorant of the fact that he did time, but he paid his debt to society. And we might not have known we were hiring a convicted felon, but we gave a guy a chance. How were we supposed to know he’d shoot somebody at work?”
The employer wouldn’t have been able to get away from the fact that it failed to get a complete background check on Cain, and a jury would probably take offense to the employer trying to avoid any fault at all. It’s easier now because Georgia law has been changed in the last decade to allow wrongdoers to apportion liability among themselves – to say “it’s more his fault than mine” in ways the common law would have never allowed – but insurance defense attorneys, or most of them, can’t help themselves. They have to go for the goose-egg – a “0” behind the dollar sign on the jury verdict form.
Still, it wouldn’t have taken one of the salty-dog, egoless defense attorneys that you still run into from time to time, the ones who drink kerosene in their coffee, spit lead, and look like one of Johnny Cash’s ghost-riders, to make the argument that Cain and only Cain should be blamed for Abel’s death. A reasonably skilled defense lawyer could have beaten Abel’s mom in a wrongful death case.
So why did Abel’s mom, or why did her attorneys, take the case down such a difficult path? Why did they steer directly into an almost certain loss? There was a workers compensation case right there in front of them. It’s true that workers compensation cases allow paltry recoveries compared to what can happen in a wrongful death case, so maybe they just wanted a chance at more money.
A wrongful death verdict can be in the millions of dollars. A workers compensation death cases, on the other hand, is limited to $550 per week (as of 2016), a cap of $220,000 on benefits for a dependent spouse without children can get, and a limit of $550 per week for until dependent children reach the age of 18. The “present value” of a workers compensation death case can never exceed more than three hundred to four hundred thousand dollars. So maybe the lawyers were overreaching, but I don’t think so. I don’t think they were being greedy.
The workers compensation death claim would have been much more straightforward than the wrongful death case, and it would have required no proof of fault. In workers compensation, you don’t have to prove the boss made a mistake that hurt you. You just have to prove something happened at work that hurt you. The technical jargon is “accident arising out of an in the course of employment,” where “in the course of” means that you were at work, and “arising out of” means that there is a connection between what happened your job.
The workers compensation law throws a broad net that catches almost all work-related injuries. There was, however, a fatal flaw in in the workers compensation approach that wasn’t obvious in the Court of Appeals’ decisions.
Abel was a young guy. The Court of Appeals doesn’t specifically say so, but it doesn’t look like he was married, it doesn’t look like he had any children, and his mother probably didn’t rely on him for financial support. If so, then there was no viable workers compensation case for Abel’s death. Nothing.
Without primary or secondary dependents, there is no recovery for death in a workers compensation case other than the funeral benefit that is capped at $7,500.
The employer, as a defendant in a wrongful death case, had (or its insurance company had) at least some risk. They shouldn’t have hired a convicted felon, and certainly shouldn’t have let a convicted felon bring a gun to work. They were at risk of having to pay the money-value of Abel’s life. There was no risk whatsoever for the insurance company in the workers compensation case. They’d pay $7,500 against funeral expenses and be done.
The employer filed a motion for summary judgment, – a motion to toss the case out of court – and the trial court granted it. The defense attorneys argued, and the trial court agreed, that the case was obviously a workers compensation case that had no business in a court of general jurisdiction. The case belonged in one of the workers compensation board’s administrative law courts where it would be relatively worthless.
The Georgia Court of Appeals issued two decisions. The first decision reversed the trial court, but the second affirmed it.
In the first opinion, issued February 15, 2016, the Court of Appeals agreed with Abel’s mom. Yes, Abel was on the job performing a routine task within the limits of his assigned duties as a fork lift operator, and yes, his death arose “in the course of” his employment, but the Court said there was no definitive connection between the shooting and the job. The Court of Appeals first decision would have reversed the trial court and allowed Abel’s mom prosecute a wrongful death action, but then on March 10, 2016, the judges changed their minds.
The insurance company’s lawyers had filed a motion for re-hearing after the first decision. They argued that the Court of Appeals had ignored the positional risk doctrine. An example of positional risk is the bank teller who gets shot in a bank robbery. The gunshot injury arose out of the teller’s employment because being a bank teller, like being a security guard or a police officer, puts you in the line of fire when a bank robbery is going down.
Another example – let’s say you work at a grocery store that is basically a flimsy metal building with a few concrete coolers in the stock room. A tornado hits the store, rips it to pieces like a house trailer, and you get hurt. You might have been safe if the boss let you hide from the tornado in the concrete-walled meat cooler, but he made everybody stand their ground and keep bagging groceries despite the storm.
You might want to argue that the grocery store owner was at fault. He should have let you and the other employees take cover in a sturdier shelter, but the law would say that working in a flimsy, metal-framed building put you at “positional risk” of injury from a tornado. You would have a workers compensation claim for your medical expenses and an income benefit capped at $550 a week for 400 weeks, or until you were able to go back to work, but under the workers compensation exclusive remedy doctrine, you would have no personal injury claim against the grocery store owner.
Of course, the positional risk doctrine is not what Abel’s mom’s case really turned on. The second decision pivoted on a new footnote that the Court of Appeals added to the second decision. Remember that there was some suggestion that Cain shot Abel because of jealousy? In the new footnote, the Court of Appeals said,
“[T]here is nothing in the record to suggest that the attack on [Abel] was motivated by reasons personal to [Abel] or related to his employment. Instead, it appears that [Cain] fatally shot [Abel] simply because [Abel] was in the wrong place at the wrong time.”
If there had been evidence that the shooting was personal to Abel, that Cain meant to kill Abel out of jealousy rather than just kill somebody in general, then the positional risk doctrine wouldn’t have applied.
In the end, the Court of Appeals reversed its own reversal of the trial court and unless she can prove that she depended on her son for support, Abel’s mother’s only remedy will be the $7,500 funeral benefit from the employer’s workers compensation insurance company.
The facts in this review occurred in actual decisions handed down by the Georgia Court of Appeals. I’ve changed the names but if you are a practicing attorney looking for this case, let me know and I’ll send you the cite.