Workplace Violence: Vicarious Liability and Negligence Theories as a Two-Fisted Approach to Employer Liability. Is Louisiana Clinging to an Outmoded Theory?

• Author: Whitney L. Elzen
• Pages: 898-928

Page 898

The author thanks Professor William R. Corbett, Frank L. Maraist Professor of Law, Louisiana State University Paul M. Hebert Law Center, for his guidance and wisdom in advising this comment. His thorough editing and critical examinations of the comments were greatly appreciated. Most of all, the author thanks him for all of his words of encouragement throughout the year.

I Introduction

Horror stories of workplace violence saturate American newscasts and front page headlines. Shooting rampages such as the December 6, 2001, incident in which an Indiana factory worker opened fire at his workplace, killing one co-worker and injuring several others before killing himself, focus attention on workplace violence in America.¹ In 1999 alone, the Bureau of Labor Statistics reported 645 workplace homicides in the United States.² Although these statistics declined ten percent from 1998 and the statistics were the lowest total since the Bureau of Labor Statistics initiated its national tally of work-related fatalities in 1992, the fear of workplace violence remains.³ For instance, while shooting rampages dominate the media coverage, much less consideration is given to the two million workers who are susceptible to non-fatal violent assaults, attacks, and threats in the workplace.⁴ Experts who conduct workplace violence forums caution that "as the softening economy brings firings and increased financial pressures, employees need to be alert for potential episodes of workplace violence."⁵ Additionally, as anxiety regarding workplace safety increases, "employers need to rethink how best to meet their legal obligations to maintain safe workplaces."⁶

From a social standpoint, who is at risk from workplace violence? The answer to this question is both employees and third parties, such as on-premises customers, consumers, and suppliers. In 2000, workplace violence was the most significant security concern for employers because of its financial and emotional impact, which can devastate their businesses.⁷ Employers must consider the economic Page 898 costs of workplace violence, including lost workdays, lost wages, lost revenue, and litigation costs.⁸ Additionally, employers must also bear the human costs of workplace violence such as diminished employee morale.⁹

From a legal standpoint, however, the pressing issue concerns who is liable for workplace violence. The most common answer is employers. Thus, employers are contemplating their potential liability and, to no surprise, hoping to limit their liability in the context of workplace violence.

This comment examines the legal liability of an employer for workplace violence. Employers need to understand the various theories of legal liability with respect to workplace violence so they can assess their potential liability and implement measures that aim to not only limit their potential liability but also prevent and mitigate incidents of workplace violence, all of which are goals of tort law. When employers take preventive measures, workplace violence incidents may be less likely to occur.

Part II analyzes Louisiana employers' potential liability for workplace violence through two factual scenarios.¹⁰ The first Page 899 scenario involves one or more employees committing intentional acts of violence against each other. The second scenario involves intentional acts of violence committed by employees against third parties. As seen by these two scenarios, dual-theories emerge in the Louisiana jurisprudence as avenues to hold employers responsible for acts of workplace violence: (1) vicarious liability¹¹ and (2) negligent hiring, retaining, training, and supervising.¹² The critical issue is whether both theories, when applied together, provide an unnecessary "two-fisted" approach to employer liability in the context of workplace violence. For instance, in Libersat v. J & K Trucking, Inc.,¹³ the Louisiana Third Circuit Court of Appeal held that the trial court did not err in refusing to instruct the jury on both vicarious liability and theories of negligent hiring and training. In the context of employer liability for workplace violence, the negligence theories Page 900 provide the more appropriate basis for employer liability. Yet, Louisiana continues to cling to the outmoded theory of vicarious liability.

Part III discusses the theory of vicarious liability with respect to workplace violence. Part IV examines the theories of negligent hiring, retaining, training, and supervising in the context of workplace violence. Part V addresses ways in which employers can limit their potential liability and exposure to losses, including employment plans and employment practices liability insurance. Part V then explores what effect the emerging negligence theories have or

should have on the application of the traditional vicarious liability theory in the context of workplace violence, suggesting that the much used vicarious liability theory should be restricted in the context of workplace violence while the negligence theories should provide the main avenue of recovery for plaintiffs. Part V finally analyzes the relationship between employer immunity for disclosing past employment information under Louisiana Revised Statutes 23:291 and the Louisiana Workers' Compensation statute's exclusivity provision with respect to workplace violence.

II Factual Scenarios Of Workplace Violence

Two factual scenarios exemplify Louisiana employers' potential liability for workplace violence: where one or more employees commit an intentional act of violence against each other ("employee- employee workplace violence") and where an employee commits an intentional act of violence against a third party ("employee-third party workplace violence"). Quebedeaux v. Dow Chemical Company¹⁴ illustrates a scenario of employee-employee workplace violence. There, an employee brought an action against his former co-employee and Dow, his former employer, for injuries sustained when his co-employee committed a battery upon him at work. Both employees were subsequently terminated for fighting under Dow's "zero tolerance" policy.¹⁵ The court held that Dow was responsible for the co-employee's intentional tort under Louisiana Civil Code article 2320 because the conduct was so closely connected in time, place, and causation to employment duties that it constituted a risk of harm attributable to the employer's business. Dow was assessed damages associated with the physical injuries that arose from the battery and the plaintiff's termination. The plaintiff did not allege any negligence by Dow, such as negligent hiring, retaining, training, and supervising, because under Louisiana law, all negligence claims Page 901 "arising out of employment" and "in the course of his employment" are barred by the Louisiana Workers' Compensation statute.¹⁶ This limitation of workers' compensation law distinguishes employee- employee workplace violence from employee-third party workplace violence.

Griffin v. Kmart Corporation¹⁷ illustrates a scenario of employee- third party workplace violence. In Griffin, Kmart was held vicariously liable for the acts of its employee under Louisiana Civil Code article 2320 and for negligent training under Article 2315. A sporting goods employee fired an air pistol twice at two customers who had asked the employee for a price check.¹⁸ The court found that because the employee was within the course and scope of his employment, Kmart was liable for one hundred percent of the damages under vicarious liability because the employee was one hundred percent at fault. Further, the court held that Kmart was negligent in failing to provide weapons handling training to the employee because the employee's criminal behavior was within the scope of the duty imposed on Kmart to provide such training.¹⁹Hence, Kmart was liable to the plaintiffs for damages under both vicarious liability and a negligent training theory.

III The Traditional Theory Of Vicarious Liability

In common-law jurisdictions, respondeat superior denotes an employer's liability for its employee's wrong performed during the course and scope of employment.²⁰ Louisiana Civil Code article 2320 codifies this concept and states:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed . . . .

In the above cases, responsibility only attaches, when the masters or employers . . . might have prevented the act which caused the damage, and have not done it.

The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

Thus, an employer is vicariously liable for the torts its employee commits in the course and scope of employment. Course and scope Page 902 "refers not only to the conduct of the servant [employee] occurring while employed on the premises, or during the time of employment, but also to the furtherance of the purposes of his employment."²¹ In fact, under Louisiana law, there is a presumption in favor of finding course and scope.²²

In the context of workplace...