The U.S. Department of Labor reports nearly 2 million people are victims of workplace violence annually. Workplace violence is defined as any act or threat of physical violence, harassment, intimidation or other threatening, disruptive behavior that occurs on-the-job.
Most of the time, workers injured in these cases are eligible to collect workers’ compensation or, if the attack proves fatal, their families can collect workers’ compensation death benefits. However, it’s not enough that the attack occurs on-site. It must somehow be job-related.
In some cases, depending on the circumstances, there may also be justification for a personal injury lawsuit. Generally, workers are barred from bringing such action against an employer – even if employer negligence was a factor.
The recent case of Devine v. Great Divide Insurance Company reveals some of the challenges workers can face in securing compensation through personal injury litigation following an workplace injury.
According to court records, plaintiff was working at a company specializing in concrete pouring. Plaintiff’s employer allowed another man, known to be an unstable individual with a history of violent behavior and criminal conduct, to work on a particular job site.
The new hire reportedly complained to the company owner he could not work with the other employee, and was agitated by his presence. Employer gave the new hire a couple Valium tablets and told him to calm down. At no point did employer warn plaintiff worker about the new hire’s agitation or anger or the possibility that the new hire might attack him.
Later, without warning, the new hire walked to plaintiff employee, who had his back to him, and began pummeling him in the back of the head. Plaintiff was stunned and staggering, but initially remained on his feet. The attacker began to walk away, but then returned and began punching plaintiff again, knocking him to the ground.
Plaintiff suffered severe injuries, including to his head, shoulders, hip and teeth.
Plaintiff filed a lawsuit against both the attacker (who was a fugitive at the time of the filing) and employer.
Employer had a commercial liability policy, and the insurer notified employer it would initially provide him with a defense attorney, but intended to seek a declaration that the policy didn’t cover the incident because of the employee exclusion clause. The employer did not have workers’ compensation insurance.
One of the primary questions was whether plaintiff worker was in fact an “employee” per the terms of the policy, which excluded coverage for bodily injuries to employees arising out of performance of any work-related duties.
District court granted summary judgment in favor of insurer – in spite of opposition by the injured worker, who sought reconsideration. The court denied this request, reasoning the worker couldn’t argue that both his injuries arose out of employment and also that employer’s negligence in the conduct of business was the legal cause of his injuries.
The state supreme court affirmed.
Normally, workers’ compensation would step in to fill this gap. However, certain smaller employers aren’t required to carry this coverage. That leaves workers free to sue the employer directly, but they will have to prove negligence. In a case like this, where commercial liability excludes work-related injuries, plaintiff may pursue action against the employer individually. However, the chances of collecting any substantial award on such a claim will depend on the individual wealth of the employer.
An experienced workers’ compensation attorney can help you explore all potential options in such situations.
For information on Atlanta work injury compensation, contact J. Franklin Burns, P.C., at 1-404-303-7770.