This case involved separate actions at and away from work; verbal assaults at work and
physical violence away.
First, an employee was verbally assaulted on the job by another employee, then later beaten up by the same employee away from work. The victim sued both the perpetrator/coworker and the employer.
The first issue was whether a civil action could be maintained against the perpetrator for at least two verbal assaults since (a) the incidents occurred at work and (b) one of the exceptions to the Exclusive Remedy Rule (Labor Code Section 3602) specifies that the assault must be physical.
The appellate court, in this unpublished decision, ruled that there was sufficient evidence to support that these technically "verbal" assaults were actually "physical" enough to constitute "physical assaults" under the exception. The Court noted that during these verbal attacks the perpetrator was spitting, turning red and moving in on the coworker in such a way as to put the worker in fear that he was about to be hit. The Court ruled that this:
"...was sufficient evidence to satisfy the definition in Gunnell of physical assault as occurring when someone engages in 'physical conduct which a reasonable person would perceive to be a real, present and apparent threat of bodily harm.'"
As such, the Court concluded that this type of assault DID fall within the exception to the Exclusive Remedy Rule as specified in Labor Code Section 3602(b)(1), thus permitting a civil action against the worker.
Regarding the action against the employer for injuries when that same worker then beat up the plaintiff in front of the victim's house, the Court noted that such conduct fell outside the Exclusive Remedy Rule entirely because there was evidence that the employer had prior knowledge of the violent personality of the perpetrator against coworkers, yet retained him as an employee.
Thus a cause of action for "negligent retention" of the employee was entirely appropriate against the employer in civil court for injuries the victim sustained away from work.
"We conclude that Duffy's injuries sustained as a result of Technicolor's negligent retention and supervision of Duffy's coworker assailant did not arise out of and occur in the course of his employment. Therefore the exclusive remedy provision of the Workers Compensation Act (Lab. Code, § 3601, subd. (a) did not bar plaintiff's civil action for negligent retention and supervision..."
The case is Duffy v. Technicolor Entertainment.
To read the full opinion,
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