2.6 Assault and Battery

• Library: Virginia Business Torts (Virginia CLE) (2019 Ed.)

2.6 ASSAULT AND BATTERY

2.601 In General. Sexual harassment claims in which an offensive touching has occurred are almost invariably accompanied by a claim for assault and battery. These co-worker "touchings" raise questions of coverage under the Workers' Compensation Act (the Act) and of employer liability under the doctrine of respondeat superior.

2.602 Elements.

A. In General. Assault and battery, although most often alleged together, are separate torts with distinct elements. A battery requires a touching, while an assault is complete and sufficiently alleged if the mere threat of an offensive touching is present. ⁵³⁰

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B. Assault. An assault is any threatening act that puts another person in reasonable fear of physical injury. ⁵³¹

C. Battery. A battery is a touching, however slight, of another person in a rude, insulting, or angry way. ⁵³² Any unwanted offensive touching, even the slightest, constitutes a battery under Virginia law. ⁵³³

2.603 Sexual Assault. Where the fact or threat of a sexually offensive touching is present, employees bringing sexual harassment claims against their employers often assert claims for assault and battery.

There are, surprisingly, no Virginia Supreme Court cases in which a claim has been made for a common law recovery for what is generally termed "sexual harassment." Sexual harassment, as such, is not illegal under Virginia law. Any claim for "sexual harassment" unaccompanied by an assault or battery must be asserted under the rubric of intentional infliction of emotional distress ⁵³⁴ and must meet the requirements of that tort.

Acts of "sexual harassment" that meet the definitions of assaults and batteries may be actionable as such, ⁵³⁵ but the torts remain the torts of "assault" and "battery." ⁵³⁶ Yet federal courts and some Virginia circuit courts have recognized a separate tort of sexual assault. In Kidwell v. Sheetz, Inc., ⁵³⁷

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the Western District of Virginia found that Virginia law did, in fact, "recognize[] a distinct cause of action for sexual assault and battery," relying on other federal court decisions which assumed, without analyzing, that the tort of sexual assault and battery existed. ⁵³⁸ In N.G. v. Schefer, ⁵³⁹ the Fauquier Circuit Court reviewed Kidwell and several state court opinions that referenced, without analysis, the tort of sexual assault and battery, and stated that "it would appear that sexual assault and battery as a cause of action has a growing recognition at several jurisdictional levels." ⁵⁴⁰ Based upon its review, the Fauquier Circuit Court found "that sexual assault and battery is a recognizable cause of action." ⁵⁴¹

Workplace injuries arising from criminal sexual assault are addressed by a specific provision of the Workers' Compensation Act. ⁵⁴² A victim of a sexual assault in the course of employment may, at his or her option, recover workers' compensation benefits under the Act or "may elect to pursue an action-at-law against the attacker, even if the attacker is the assaulted employee's employer or co-employee, for full damages." ⁵⁴³ But this provision of the Act does not itself "create a remedy for sexual harassment," ⁵⁴⁴ and there are important limitations on the provision:

1. The term "sexual assault" is restrictively defined for purposes of this section to include only criminal sexual assaults as defined in sections 18.2-61 (rape), 18.2-67.1 (forcible sodomy), 18.2-67.3 (aggravated sexual battery), or 18.2-67.4 (misdemeanor sexual battery) ⁵⁴⁵ of the Virginia Code; ⁵⁴⁶

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2.	A plaintiff must "promptly report the assault to the appropriate law-enforcement authority"; 547 and
3.	The section applies only "where the nature of such employment substantially increases the risk of such assault." 548

There are certainly assaults and batteries that do not rise to the level of criminal sexual assault as described in section 65.2-301 of the Virginia Code. The question of whether these sexual assaults may support a civil action is neither confirmed nor foreclosed by section 65.2-301. ⁵⁴⁹ But as one Virginia federal court noted, whatever the status of a sexual harassment allegation under section 65.2-301 as a "sexual assault," simple assault and battery remains actionable under Virginia common law as long as a mere touching or threat of a touching has occurred. ⁵⁵⁰

2.604 Workers' Compensation Act as Bar.

A. In General. Analytically, one of the more interesting issues about workplace assault and battery is the extent to which a common law claim may be barred based on the exclusive remedy provisions of the Workers' Compensation Act (the Act). ⁵⁵¹

The resolution of this issue is critical, particularly in sexual harassment cases involving allegations of co-worker assault, since a cause of action against an employer for assault and battery will be barred by a proof of a successful actual or potential workers' compensation claim. The Virginia Supreme Court resolved this issue, at least in part, when it found that a

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sexual assault by a co-worker, when the assault is personal to the plaintiff and not directed against her as an employee, is not barred by the Act. ⁵⁵²

For other types of assault and battery claims, however, the Act makes itself the exclusive remedy of any employee who has suffered an "injury by accident arising out of and in the course of . . . employment." ⁵⁵³ It is now settled that the term "injury by accident" may include injuries that are caused by the intentional tort of a co-employee. ⁵⁵⁴

Counsel addressing the Act's bar in the context of an assault by a co-employee needs to ask three primary questions:

1.	Does the injury claimed constitute "injury by accident" within the meaning of the Act?
2.	Did the injury arise "in the course of" employment?
3.	Did the injury "arise out of" an "actual risk" of employment?

B. "Injury by Accident." The Act bars a civil action based on injury by accident, which is defined as "an obvious sudden mechanical or structural change in the body." ⁵⁵⁵ Although many injuries from a battery will be "sudden" and "mechanical," others will not. For assault, it is likely that the major source of injury alleged will not be "mechanical" but rather emotive. In these cases, the Act will generally not apply. ⁵⁵⁶

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Virginia courts have held, almost uniformly, that claims of gradually incurred injuries, which would include most claims of emotional distress, however inflicted, do not constitute "injury by accident." ⁵⁵⁷

C. "In the Course of" Employment. Whether an injury has been suffered "in the course of" employment requires an examination of the time, place, and circumstances under which the injury has been suffered. ⁵⁵⁸ To be covered by the Act, an injury must both "arise out of" and occur "in the course of" employment. ⁵⁵⁹

Generally speaking, if an injury occurs on the job or at the employer's place of business, and particularly during working hours, it is an injury that arises "in the course of" employment. ⁵⁶⁰ Acts "in the course of employment" are not limited strictly to the performance of work tasks. For example, the Virginia Court of Appeals has held that, for purposes of the Act, the "course of employment" may include acts that minister to the personal comfort and convenience of the employee. ⁵⁶¹ Furthermore, employment also includes "a reasonable margin of time and space necessary to be used in passing to and from the place where work is to be done." ⁵⁶² A good discussion of this "coming and going" to work rule is found in Carlson v. Department of Military Affairs. ⁵⁶³ In Carlson, the Court of Appeals held that the injuries suffered by the claimant while traveling to her duties were outside the scope of the Act since (i) the employer did not pay for the means of transportation

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or for the employee's travel time; (ii) the way traveled was not the sole egress or ingress to the work site and was not constructed by the employer; and (iii) the employee was not charged with some task by the employer on her way to work. ⁵⁶⁴

The existence of a wholly personal motive on the part of the individual committing the assault does not mean that the injury is not suffered in the course of employment for purposes of the Act. ⁵⁶⁵

D. "Arises Out of" Employment. "Whether an injury arises out of the employment is a mixed question of law and fact." ⁵⁶⁶ In contrast to the question of whether an injury has occurred "in the course of" employment (a focus on time, place, and circumstance), the question of whether an injury "arises out of" employment requires an examination of whether there is a causal connection between the nature of the employment and the injury. To determine whether a specific injury "arises out of" the employee's employment, Virginia, unlike many jurisdictions, applies the "actual risk test." ⁵⁶⁷ Under the actual risk test, it is not sufficient that the injury occurred on the job or even that it was inflicted by a co-worker. Rather, to "arise out of" employment, the injury must have had its "origin in a risk connected with [the] employment[ ] and flow[ing] from that source as a rational consequence." ⁵⁶⁸ The question is whether the specific type of injury incurred is "a risk of [the employee's] employment." ⁵⁶⁹

The best short formulation of the test is found in Reamer v. National Service Industries, Inc.: ⁵⁷⁰

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A physical assault may constitute an "accident" within the meaning of the Act when it appears that it was the result of an actual risk arising out of the employment. An accident arises out of the employment if there is a causal connection between the claimant's injury and the condition under which the employer requires the work to be done. ⁵⁷¹

In Hilton v. Martin, ⁵⁷² the Virginia Supreme Court applied the actual risk test, stating that "[a]n injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an...