Employee altercations may sometimes result in injuries that are compensable under the workers’ compensation law. In addition, depending on the circumstances of the altercation, an employer may also be responsible for an employee’s intentional tortious conduct. When such situations arise, several important questions need to be asked: Did the fight occur in the course and scope of employment? Was the fight rooted in employment? A recent case from the Louisiana Second Circuit Court of Appeal illustrates how these issues may play out. There, Garcia, an employee of Eldorado Casino, witnessed Lewis, a contractual employee for FSSC, steal crab legs. Garcia reported the incident to Lewis’ supervisor, after which Lewis was discharged. Before leaving the casino, Lewis gathered his personal belongings from his locker, including brass knuckles, which he then used to beat Garcia until he lost consciousness for ten minutes. As a result of the attack, Lewis pled guilty to second degree battery. Eldorado’s compensation carrier, Associates Indemnity Corp., began paying Garcia temporary total disability benefits and his medical bills.
Garcia subsequently filed suit against Lewis, FSSC, and the Eldorado Casino in which he alleged that Eldorado was vicariously liable for the intentional tort committed by its statutory employee, Lewis. He also alleged that FSSC should have anticipated he would react violently when fired and taken additional precautions, such as escorting him out of the facility, due to Lewis’ history of minor criminal infractions. Garcia further alleged that Eldorado was vicariously liable for FSSC’s negligence on this issue.
Eldorado raised the affirmative defense that Garcia’s exclusive remedy was in workers’ compensation, La. R.S. 23:1032. In addition, Eldorado contended in a motion for summary judgment that the intentional tort occurred outside the course and scope of employment. Garcia opposed the motion on the grounds that the exclusive remedy provision of the workers’ compensation law did not apply to intentional torts, such as the one committed by Lewis, and that the incident occurred during the course and scope of employment. The trial court grated Eldorado’s motion for summary judgment, finding that the intentional tort was not employment related as Lewis’ conduct was personal in nature.
On appeal, the court observed that an employer can be vicariously liable both for its own intentional acts and the intentional acts of its employees. The test for determining if an employee was in the scope of employment requires the employee’s tortious conduct to be “so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business, as compared with conduct instituted by purely personal considerations entirely extraneous to the employer’s interest.” The court noted that four specific factors are used to determine if tortious conduct falls within the course and scope of employment: (1) whether the tortious act was primarily employment rooted; (2) whether the violence was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment.
Garcia argued summary judgment was improper because there were genuine issues of material fact as to 4whether Lewis was fully terminated when the attack occurred and whether his attack was employment rooted. The court agreed, noting that the incident occurred on Eldorado’s premises, during the hours of employment, and while Lewis was in the process of being fired. In addition, the court explained that it could not state, as a matter of law, that an act of workplace violence is purely personal, automatically placing it outside the course and scope of employment. Further, because the attack was precipitated by Garcia’s reporting of Lewis’ workplace conduct, there were genuine fact issues about whether the intentional tort was rooted in employment. For these reasons, the court held that summary judgment on the issue of course and scope of employment was improper.
Garcia v. Lewis