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Tilting the Scales Business Issues with a Legal Slant

Have Gun, Will Travel? [Part Two] – Owner’s Liability to Employees for Violent Acts

Posted in *BTW - Noteworthy, Constitutional Rights & Issues, Criminal Law, Employment & Labor

Assult RifleLast month Tilting pondered an owner’s liability to customers from violence at the midnight showing of “Paladin – the Gentleman Black Knight” – the remake. Patrons and employees alike were ambushed at the Orpheum Theater. According to news reports the Paladin look-alike bought a ticket. After the movie started he slipped out through an emergency exit propping open the door. After donning riot gear he re-entered, tossing gas canisters and shooting into the crowd.  Subsequently filed lawsuits alleged insufficient security for anticipated crowds and failed alarm system controls on the emergency exit. Is the business owner Pall Adium liable to his injured EMPLOYEES?

Last month we concluded that Pall Adium is probably not liable to his customers. If a business owner’s employees are injured, however, what then?

Employees Assaulted by Third Party?

Like visiting patrons, Pall’s employees have an unlikely claim against a business owner for violent acts in the workplace committed by a non-employee unless there is a “special relationship” between the employer and either the perpetrator or those who are injured. In short, should Pall have reasonably known of the danger? If Pall knew of a threat to the safety of his workers and patrons and knows either of a particular assailant or victim (employee), rather than just a mere general threat, he may be responsible for failing to warn the victim or otherwise to take reasonable protective measures.

Employees Assaulted by Another Employee?

More often than not, the workplace assailant is an employee or former employee who believes he/she was wronged by the employer. More than just having a responsibility to protect employees when he knows of a “problem employee,” Pall also has a duty in the hiring and retention of his employees. For example, Pall could be liable for failing to investigate an employee’s background before hiring or if he fails to fire after having reason to suspect that the employee might commit a violent act. In addition to OSHA/MOSHA federal standards to maintain a safe workplace, Pall has a similar duty at common law to provide a safe workplace for his employees, to warn his employees about any lurking dangers and to impose and enforce reasonable rules to govern his employees’ conduct.

Tilting the Scales in Your Favor

Warning Signs. Even without specific knowledge of a disgruntled employee or the threat of an assailant, Pall Adium should be aware of suspicious, tell-tale behavior like:

  • unexplained increases in absenteeism
  • repeated violations of company policies
  • behavior bordering on paranoia
  • depression and withdrawal
  • overreaction to changes in procedure
  • verbal abuse or threats to co-workers
  • frequent, vague physical complaints
  • explosive outbursts of rage without provocation

Reasonable Precautions

If not already a part of his HR policies, Pall should consider establishing (and including in an employee handbook) policies and procedures to address pre-employment screening, performance evaluations and a progressive disciplinary process. As a result of a Texas law that became effective September 2011, Texas employers should amend their workplace violence policies to permit employees to store legally owned guns in their vehicles while they are at work.

Good News! Workers Compensation Insurance.

Generally speaking, employees injured on a jobsite covered by workers compensation insurance may only recover from that insurance (and not from their employer) injuries and lost wages, even when the injury is caused by criminal assault.

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