Workplace Violence

• Author: Kevin R. Culhane
• Pages: 44-75

17-44

Chapter 17

Workplace Violence

§1700 Introduction

§1710 Basic Information Regarding Employer

§1720 Basic Information Regarding Claimant

§1730 Employer Direct Liability to Third Parties

§1740 Employer Vicarious Liability to Third Parties

§1750 Employer Liability for Injury to Employee

§1760 Affirmative Defenses and Denials

§1770 Damages

§1780 Investigatory Interrogatories

§1790 Deposition Checklists

§1700 Introduction

§1701 Elements of Plaintiff’s Cause of Action

§1701.1 Claims by Third Parties – Direct Liability

§1701.2 Claims Initiated by Third Parties – Vicarious Liability

§1701.3 Claims Initiated by Coworkers

§1702 Employer Defenses

§1703 Definitions

§1710 Basic Information Regarding Employer

§1711 Identification of Employer

§1712 Business Format of Employer

§1713 Similar Claims and Legal Proceedings

§1720 Basic Information Regarding Claimant

§1721 Birth Information

§1722 Education

§1723 Military Record

§1724 Marital Status

§1725 Employment

§1726 Criminal Record

§1730 Employer Direct Liability to Third Parties

§1731 Plaintiff to Defendant

§1731.1 Fact of Hire and Employee Duties

§1731.2 Individuals Involved in Hiring Decision

§1731.3 Employer’s Actual Notice

§1731.4 Employer’s Constructive Knowledge

§1731.5 Adoption of Company Policy Relating to Employee Supervision

§1731.6 Employer Liability for Negligent Supervision

17-45 worKplace VIolence

§1731.7 Negligent Supervision – Employer’s Constructive Knowledge

§1731.8 Employer Liability – Negligent Retention

§1731.9 Employer Liability – Unsafe Premises

§1732 Defendant to Plaintiff

§1732.1 Plaintiff’s Contentions Re: Negligent Hiring

§1732.2 Plaintiff’s Contentions Re: Negligent Supervision

§1732.3 Employer Direct Liability – Negligent Retention

§1732.4 Employer Direct Liability – Unsafe Premises

§1740 Employer Vicarious Liability to Third Parties

§1741 Plaintiff to Defendant

§1741.1 Scope of Employment

§1741.2 Ratification

§1742 Defendant to Plaintiff

§1742.1 Plaintiff’s Contentions Re: Employment Relationship

§1742.2 Plaintiff’s Contentions Re: Scope of Employment

§1742.3 Plaintiff’s Contentions Re: Ratification

§1750 Employer Liability for Injury to Employee

§1751 Plaintiff to Defendant

§1751.1 Employer Contentions Re: Authorization

§1751.2 Employer Contentions Re: Ratification

§1751.3 Employer Contentions Re: Willful Concealment

§1751.4 Employer Contentions Re: Risks of Employment

§1752 Defendant to Plaintiff

§1752.1 Employee Contentions Re: Authorization

§1752.2 Employee Contentions Re: Ratification

§1752.3 Employee Contentions Re: Willful Concealment

§1752.4 Employee Contentions Re: Risks of Employment

§1760 Affirmative Defenses and Denials

§1761 Plaintiff’s Contributory/Comparative Negligence

§1762 Plaintiff’s Assumption of the Risk

§1763 Statutory Preemption

§1770 Damages

§1771 Defendant to Plaintiff

§1771.1 Plaintiff’s Contentions Re: General Damages

§1771.2 Plaintiff’s Contentions Re: Emotional Distress

§1771.3 Plaintiff’s Contentions Re: Loss of Consortium

§1771.4 Plaintiff’s Contentions Re: Special Damages

§1772 Plaintiff to Defendant

§1772.1 Defendant’s Contentions re Plaintiff’s Special Damages

§1780 Investigatory Interrogatories

§1781 Witnesses

§1782 Expert Witness Identification

§1783 Surveillance

§1784 Insurance

§1785 Due Diligence in Preparation of Response

§1790 Deposition Checklists

§1791 Deposition of Defendant

§1791.1 Defendant – General Background

§1791.2 Defendant’s Business Structure

§1791.3 Basic Facts Regarding Incident

§1791.4 Employer’s Direct Liability to Third Party

§1791.5 Employer’s Vicarious Liability to Third Party

§1791.6 Employer Liability for Injury to Employee (Potential Exceptions to Workers’

Compensation Exclusive Remedy)

§1700 Model InterrogatorIes 17-46

§1791.7 Affirmative Defenses and Denials

§1791.8 Damages in Workplace Violence Cases

§1791.9 Statements by Parties, Witnesses

§1791.10 Surveillance Conducted by Defendant

§1791.11 Insurance

§1792 Deposition of Plaintiff

§1792.1 Plaintiff – General Background

§1792.2 Basic Facts Regarding Incident

§1792.3 Employer’s Direct Liability to Third Party

§1792.4 Employer’s Vicarious Liability to Third Party

§1792.5 Employer Liability for Injury to Employee (Potential Exceptions to Workers’

Compensation Exclusive Remedy)

§1792.6 Plaintiff’s Injuries and Treatment

§1792.7 Affirmative Defenses and Denials

§1792.8 Damages in Workplace Violence Cases

§1792.9 Statements by Parties, Witnesses

§1792.10 Surveillance Conducted by Opposing Party

§1700 Introduction

Recent statistics indicate a dramatic increase in injuries and/or death suffered as a result of workplace violence.

Indeed, this phenomenon has fostered an increased concern on the part of employers regarding potential legal liability

and related strategies to minimize the occurrence of workplace violence. [See, e.g., MattMan & Kaufer, the coMplete

worKplace VIolence preVentIon Manual, chapter 10.] This increase in workplace violence has also caused an

increase in litigation resulting from workplace injuries. The interrogatories in this chapter are for use in these cases.

Claims involving torts committed on business premises by strangers to the employment relationship are essentially

premises liability claims, and are treated as such in the chapter on premises liability. See Chapter Five. Conversely,

“workplace violence” claims as defined in this chapter relate to torts committed by employees against third parties

or coworkers. Most frequently, the injured third party is a business invitee who seeks to impose liability upon the

employer for an injury inflicted by an employee.

This chapter deals first with claims initiated by third parties and second with claims initiated by coworkers. The

first category is further divided according to whether the plaintiff seeks to impose direct liability upon the basis of

the employer’s own fault or whether the claim seeks to impose liability on the basis of respondeat superior. This

chapter also includes interrogatories directed to all aspects of the defense case, including interrogatories that focus on

the parties’ respective contentions regarding each of the frequently asserted defenses.

§1701 Elements of Plaintiff’s Cause of Action

§1701.1 Claims by Third Parties – Direct Liability

Many workplace violence cases assert that the employer was negligent in hiring, supervising or retaining the

offending employee. Where the facts establish negligence, the plaintiff can bypass conceptual difficulties that may

arise if the plaintiff alleges that an intentionally inflicted injury was within the course and scope of the employee’s

employment. In these cases, the liability that the plaintiff seeks to impose is direct liability – it does not involve the

imputation of the employee’s tort to the employer.

When the plaintiff’s claim is that of negligent hiring, supervision or retention, the ordinary elements of actionable

negligence apply. Specifically, the plaintiff carries the burden of establishing that the employer’s conduct fell below

the standard of care required by law. This may involve a claim that the employer hired an individual with known

dangerous propensities, or at least failed to adequately investigate the employee’s background. See, e.g., Evan F. v.

Hughson United Methodist Church, 8 Cal. App. 4th 828 (1992). Frequently, employers may be held liable if they fail