VOLUME I Chapter 4 Employment-Related Torts

• Jurisdiction: South Carolina

Chapter 4 Employment-Related Torts George A. Reeves III Fisher & Phillips LLP

I. Introduction

In addition to claims of discrimination, harassment, or hostile work environment, workplace violence, sexual harassment and other misconduct can also lead to employer and individual tort liability. Unlike many other types of employment litigation, tort claims can be brought against not only the employer but also against supervisors and co-workers. When circumstances give rise to a tort action by an employee against any workplace tortfeasor, the impact of the litigation may be felt at every level of the organization. The result is workplace disruption, with employee pitted against employee, and management under stress.

Tort litigation is a high-risk endeavor for all parties in part because of the potential liability for substantial actual and punitive damages, usually unrestricted by statutory caps. Tort cases involving an affront to the peace, privacy and dignity of an employee also evoke intense emotions. These elements of high stakes and strong feelings combine to enhance the likelihood of unwanted publicity for all concerned. Sexual harassment cases, which often include tort claims, are a prime example of this phenomenon.

This chapter will provide an overview of the tort claims most often arising in the employment setting.

II. Understanding the Basics of a Tort Claim

Tort law is broad in scope and certain aspects overlap with criminal and contract law. Battery, for example, is both a crime and a tort. Likewise, the concept of a duty and its breach applies in both tort and contract law. Although there are some variations of the elements, tort claims generally include: (1) a non-contractual duty; (2) breach of the duty; (3) proximate causation; and (4) a legally protected injury.¹ Practitioners need to understand the basic elements of a tort prior to undertaking the prosecution or defense of a tort case in an employment situation.²

A. Duty

The existence of a duty of care must be established to support a tort claim. One does not necessarily owe a duty of care, and any duty owed does not extend to everyone. The nature of the care, whether due care or slight care, also must be determined. Due care is breached by negligence and slight care is breached by recklessness or gross negligence. One owing a duty of due care is responsible for foreseeable risks and foreseeable victims.³Employers, by virtue of their superior bargaining position over employees, have a special duty of care if the at-will employment contract has been modified, for example, by use of an employee handbook. An implied covenant of good faith and fair dealing exists in such relationships, imposing on the employer a duty to conduct itself with some modicum of fairness. Earlier cases intimated that the implied covenant afforded employees an independent tort-type claim against employers.⁴ In RoTec Services, Inc. v. Encompass Services, Inc.,⁵ the South Carolina Court of Appeals directly addressed for the first time the issue of whether the implied covenant provides an independent cause of action. In ruling that there is no separate cause of action for breach of the implied covenant of good faith and fair dealing, the court found that the covenant is subsumed under a claim for breach of contract; it is merely another term of the contract.

B. Causation

A person who breaches a duty is liable for injuries to the victim if the breach was the proximate cause of the injury.⁶ To determine whether or not a breach of duty is the proximate cause of an injury, one must review the two aspects of causation: cause-in-fact and legal cause.⁷

C. Proof

The employee has the burden of showing by the preponderance of the evidence that the elements of a cause of action in negligence have been established. Circumstantial evidence is generally allowed and often is important in an employee's case to show negligence, recklessness or causation.⁸ For example, similar prior acts of the employer, supervisor or co-worker may be used to illustrate the fact that the offensive conduct occurs or is permitted in the particular workplace.

Expert testimony is not necessary to prove negligence or causation. Expert testimony is necessary only if lay persons do not possess the requisite skill and knowledge to determine the matter at issue.⁹

The defendant has the burden of establishing affirmative defenses, subject to the same rules for the use of circumstantial evidence and expert witnesses as are applicable to the employee.

D. Defenses

Historically, the defendant could specifically plead two defenses to escape liability: assumption of the risk and contributory negligence.¹⁰ For all causes of action arising on or after July 1, 1991, comparative negligence applies instead of contributory negligence.¹¹Pursuant to the comparative negligence law, the relative fault of the parties is considered in the allocation of compensatory damages. Punitive damages, however, are not subject to reduction under comparative negligence because the purpose of punitive damages is to deter future reckless or willful conduct.¹²

A defense may be raised as to the responsibility of another defendant in cases involving joint tortfeasors. The Uniform Contribution Among Tortfeasors Act¹³ applies only to non-governmental tortfeasors who have not intentionally caused or contributed to the injury.

Other defenses frequently raised in the answer in employment cases include the statute of limitations, exclusivity of the workers' compensation law, charitable and governmental immunities, preemption by a statutory scheme, and settlement and release.

III. Time Limitations

A. Statutes of Limitations

Tort claims generally carry two- or three-year statutes of limitations. Reference should be made to each specific tort's applicable statute.¹⁴ Employment cases typically involve several causes of action with different statutes of limitations, requiring that the claim be filed in compliance with the shortest statute. Claims against governmental entities and their employees require compliance with the South Carolina Tort Claims Act¹⁵ or the Federal Tort Claims Act.¹⁶ Waiver and equitable estoppel may toll a statute.¹⁷

B. Relationship to Statutory Administrative Proceedings

It is essential that employment law practitioners representing clients with both tort claims and discrimination, harassment, or retaliation claims be familiar with certain mandatory administrative proceedings and their time limitations. Cases involving claims under Title VII of the 1964 Civil Rights Act and the South Carolina Human Affairs Law are subject to a 300-day filing deadline with the South Carolina Human Affairs Commission and the Equal Employment Opportunity Commission (EEOC). The short administrative filing deadline must be met, regardless of the existence of a longer statute of limitations attached to the tort claim. At the conclusion of the administrative process, the South Carolina Human Affairs Commission and the Equal Employment Opportunity Commission will issue notices of the employee's right to sue. An employee, if proceeding pursuant to the South Carolina Human Affairs Law, must file the discrimination claim within 120 days of receiving the agency's notice or within one year of the discriminatory event, whichever occurs earlier. If the employee chooses to sue under Title VII, he or she must do so within 90 days of receipt of the EEOC's notice. A longer statute of limitations for the tort claim does not toll the time for filing the discrimination claim. Similarly, an outstanding notice of right to sue from the EEOC or the Human Affairs Commission does not toll the statute of limitations for the tort claim. The tort complaint may be filed and amended later to add the discrimination claim. Therefore, it is advisable to give notice of the discrimination claim and the status of the administrative proceedings in the complaint, even though it cannot be filed in court until after receipt of the notice of right to sue.¹⁸

IV. Workers' Compensation

The general rule is that workers' compensation is an employee's exclusive remedy against an employer for personal injury arising out of and in the course of employment.¹⁹This defense should be raised in the defendant's answer or pursuant to a Rule 12(b) motion to dismiss. When a defendant fails to raise the defense of workers' compensation exclusivity, it is deemed waived and will not divest the court of subject matter jurisdiction.²⁰

An employee who attempts to recover under workers' compensation but whose claim is held to fall outside the parameters of that law will have one year in which to file a tort action.²¹

A. Exceptions

The appellate courts have visited the workers' compensation exclusivity issue on several occasions, carving out and explaining exceptions to the general premise. The principles found in these cases should be carefully reviewed with respect to the particular facts of any employment tort claim.

1. Proprietary Interests

The Workers' Compensation Act covers personal injury only. Purely proprietary interests are outside the Act. An employee's action for slander was not barred by the exclusivity provision of the Act because the gravamen of a defamation action is injury to the reputation.²² Further, the Fourth Circuit has ruled that false imprisonment and invasion of privacy claims are not barred by the exclusivity provision of the Workers' Compensation Act. ²³ A lawsuit based upon proprietary interests, however, may be covered by the Act if personal injury is alleged. For example, a claim that an invasion of privacy resulted in emotional distress, e.g., personal injury, may bring the claim within the purview of the Act.

2. Intentional Acts of the Employer

Workers' compensation was designed to cover workplace accidents, primarily ones involving mere negligence. An argument may be made that an intentional tort committed by the employer may be beyond the scope of the Act, since it involves a deliberate intent to...