March 20, 2012
Employer Liability for Co-Worker Assault in Tennessee
The Tennessee Court of Appeals, Western Section has reversed summary judgment which had been granted in favor of an employer in a case involving claims based upon an assault by a co-worker, in a case which provides some lessons for Tennessee employers. The case is Tyus v. Pugh Farms, Inc., decided March 19, 2012.
This case involved farm workers. After one worker made a joking, but insulting, comment about a co-worker, the two wrestled briefly. Later, the employee who was the "butt of the joke" unexpectedly struck the plaintiff co-worker in the head with a metal pipe, knocking him unconscious.
The injured plaintiff sued both the co-worker and his employer. His theories against the employer were based upon (1) negligent hiring/supervision/retention, and (2) vicarious liability under respondeat superior for the tort committed by the co-worker. The trial court granted summary judgment in favor of the employer on both claims, explaining that (1) the employer owed no duty to the plaintiff under the negligent hiring/supervision/retention claim, because the assault was not reasonably foreseeable, and (2) the assaulting co-worker was not acting within the scope of his employment, for purposes of the respondeat superior claim.
The Court of Appeals reversed the summary judgment on both claims and remanded the case for further proceedings in the trial court. (Note: the summary judgment was reviewed by the Court of Appeals under Tennessee's "old" summary judgment standard under Hannan v. Alltel Publishing, which was revised by legislative action for cases effective July, 2011; see separate news article, below).
Probably most damning for the defendant employer was deposition proof showing that the assaulting co-worker had been involved in two previous altercations with co-workers, one which involved shoving and the other which involved the defendant employee pulling a knife on a co-worker. Moreover, the employer never provided a policy, procedure or training to its employees regarding workplace conduct and horseplay.
With regard to the negligent hiring/retention/supervision claim, the Court of Appeals held that the defendant employer had failed to negate the essential element of whether a duty was owed under the circumstances of the case, which primarily turmed upon the foreseeability of the risk of an assault.
With regard to the respondeat superior vicarious liability claim, to most employers' attorneys this probably seemed like a no-brainer issue, because it is hard to envision a successful argument that an assault might be "within the scope of employment." However, the Court of Appeals discussed various tests and factors found in the Restatement, Second of Agency, including factors in determining whether certain actions are "authorized" by the employer. The Court of Appeals noted that "the question of whether an employee was acting within the scope of employment is generally a question of fact," although it may become a question of law where the facts are undisputed. Under the facts of this case (involving the employer's knowledge of prior incidents), the Court of Appeals held that there was a question of fact which precluded summary judgment.
Once again, a first reading of the facts of this case would lead most employment lawyers to conclude that there was little chance that the plaintiff might prevail against the employer. However, the Court of Appeals has permitted these questions to proceed to a jury.
Employers should take note. If an employee has engaged in previous acts of aggression or violence, there will be greater pressure on the employer to terminate that employee's employment, or else risk a claim that further violence was foreseeable. In addition, employers who have minimal policies or training regarding matters such as horseplay should reconsider and should implement policies and training, so as to (hopefully) deflect a claim that the employer was negligent, or that the conduct was somehow "authorized."