Navigating the Fun House of Defending Workplace Violence Claims

By: Trey Dowdey

The recent statistical uptick in workplace violence is an alarming and unwelcome trend to employers and employees alike. To analyze nuanced issues with workplace violence and potential workers’ compensation exposure, it is important to distinguish whether workplace violence is caused by one worker on another, by a third party stranger on an employee or by a worker’s self-inflicted injury. Further, while such workplace violence events can trigger a compensable workers’ compensation injury (including injuries by those teleworking), an employer’s (or co-employee’s) tort exposure or legal liability based on other causes of action cannot be ruled out.

Notable headlines from the last several years following the COVID-19 pandemic indicate an increase in workplace violence, especially, and not surprisingly, in the healthcare career fields.

The Occupational Safety and Health Administration (OSHA) defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers, and visitors.”

Recent Workplace Violence Statistics

A July 21, 2022 joint study by the Bureau of Justice, Bureau of Labor Statistics and the National Institute for Occupational Safety and Health found:

Other studies have shown:

Also of note, from 2008 to 2019, workplace bullying incidents (at least one event) increased from 75% to 94% with 51% bullied by a boss. Finally, studies have found that nearly 80% of companies were unprepared or trained for an active shooter, as the FBI reported 277 active shooters between 2000-2018.

Accordingly, when training or preparing for preventative efforts or responses to workplace violence, knowing the difference between the types of workplace violence and the impact of same on employer’s potential legal risk or other exposure will help “sort out the wheat from the chaff.”

Alabama Statutory and Case Law

As a general rule, employers in Alabama are required to provide a safe workplace for employees under Ala. Code §25-1-1(a). Further, the Alabama Workers’ Compensation Act (the Act) provides employees with the exclusive remedy for work-related injuries that arise out of and in the course of their employment.1 While this exclusive workers’ compensation remedy is broad, it was not meant to completely replace the entire field of tort law or other causes of action that an employee may pursue in Alabama.

As a starting point, "[e]very person, for any injury done him, in his . . . person or reputation, shall have a remedy by due process of law . . . ."2 Further, “there can be no claim for damages to the person or property of anyone except as it follows from the breach of a legal duty.”3

The primary remedy for employee work injuries falls under the Act. Further, if an employee has an “accident,” defined in Ala. Code §25-5-1(7) as “ . . . an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time “injury” (as defined by Ala. Code §25-5-1(9)) to the physical structure of the body . . . by accidental means,” that arises out of and in the course of the employment (as defined by Ala. Code §25-5-1(8)), then the employee has a compensable work injury. Significantly, Ala. Code §25-5-1(9) specifies that an injury does not include injuries caused by acts of third persons or co-employees intended to injure the employee because of personal reasons (non-work reasons). Also, mental injuries are, by definition in Ala. Code §25-5-1(9), only compensable if the mental injury was proximately caused by some physical injury.4 (Note: mental injuries not produced by physical work injuries may still provide the employee with a remedy against the employer for failure to provide a safe work environment).5

In short, the Act generally provides employers protection from tort claims if the underlying compensable injury is expressly covered by the Act. For non-compensable injury claims, tort damages or other causes of action may still be available. Such non-compensable claims include retaliatory discharge, as statutorily provided under Ala. Code §25-5-11.1, the “dual capacity doctrine,” fraud, invasion of privacy, the tort of outrage, conspiracy, fetus injured in utero and sexual harassment.6 The basic line of reasoning behind these noted exceptions to the Act’s exclusivity provisions is that if a claimed injury is not a compensable work injury, then the exclusive remedy provisions are inapplicable.7 For example, a correctional officer at a prison who was not injured in a prison riot but was confined for some time and suffered psychological injuries, is barred from workers’ compensation benefits for psychological injuries only, but could potentially recover under a tort cause of action(s) against the employer for failure to provide a safe workplace or violation of some other legal duty.8

While the Act was meant to provide complete immunity to employers for compensable work injury claims, officers, directors, agents, servants or co-employees may also still risk civil liability for “willful conduct.”9 Negligent or wanton acts of co-workers or supervisors is not enough to establish personal liability, as the conduct must be “willful.”10

Three Scenarios

With workplace violence, there are three possible scenarios.

1. Employee = Wrongdoer

When looking at the different types of workplace violence, it should first be noted that an employee’s self-inflicted or initiated injuries (e.g.: horseplay, intoxication or illegal drug usage) caused by the employee’s own willful misconduct, bars compensation benefits).11

2. Co-Employee = Wrongdoer

In cases where an employee is assaulted by a co-worker, the “willful conduct” exception to the Act’s exclusivity provisions would allow the injured employee a tort recovery,12 including compensatory and punitive damages, as determined by a jury. “Willful conduct” is defined in §25-5-11(c) as:

(1) a purpose or intent or design to injure another . . . with knowledge of the danger or peril to another, [where the employee] consciously pursues a course of conduct with a design, intent, and purpose of inflicting injury, then he or she is guilty of “willful conduct . . .

(2) the intoxication of another employee . . . if . . . that employee has wrongfully and proximately caused injury or death to plaintiff . . .

(3) willful and intentional violation of a specific safety rule . . . after written notice . . . [and] within six months after . . . written notice . . .

3. Third-Party = Wrongdoer

Lastly, in cases with third-party wrongdoers, such as a patient attacking a nurse or a stranger attacking a security guard, whether the injured employee suffered a compensable work injury will be a fact intensive issue as to whether the injury arose out of and in the course of the employment.13 Moreover, for the recent increased trend of teleworkers, this could make for especially intricate and nuanced fact patterns with domestic fights, seeking to determine if same arose out of and in the course of the employment.

In conclusion, while most efforts to avoid the exclusivity provisions of the Act fail, recognizing exceptions within the context of typically seen workplace violence claims can help employers prepare for and minimize risk.

1 Ala. Code §25-5-52 and §25-5-53; See also Kilgore v. C.G. Canter, Jr. & Assocs., Inc., 396 So.2d 60, 63 (Ala. 1981).
2 Ala. Const. 1901, Art. I, § 13.
3 Reed v. Brunson, 527 So.2d 102, 114 (Ala. 1988) (quoting Pickett v. Matthews, 238 Ala. 542, 192 So. 261 (1939).
4 Magouirk v. UPS, 496 So.2d 55 (Ala.Civ.App.1986).
5 Bullin v. Correctional Medical Services, Inc., 908 So.2d 269 (Ala.Civ.App.2004).
6 See Therrell v. Scott Paper Co., 428 So.2d 33 (Ala.1983) (Dual Capacity Doctrine recognized in Aabama); See also Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.2d 90 (Ala.1989) (fraud, conspiracy, and tort of outrage recognized); See also Busby v. Truswal Systems Corporation, 551 So.2d 322 (Ala.1989). (Invasion of privacy recognized); See also Namislo v. Akzo Chemicals, Inc., 620 So.2d 573 (Ala.1993) (fetus not an employee); See also Busby v. Truswal, 551 So.2d 322 (Ala. 1989). (Sexual harassment recognized).
7 Lowman, 547 So. 2d at 93.
8 Bullin v. Correctional Medical Services, Inc., 908 So.2d 269 (Ala.Civ.App.2004)
9 Ala. Code §25-5-11(b) and (c); See also Murdock v. Steel Processing Services, Inc., 581 So.2d 846, 848 (Ala. 1991).
10 Thermal Components, Inc. v. Golden, 716 So. 2d 1166, 1168 (Ala. 1998).
11 Ala. Code §25-5-51.
12 Ala. Code §25-5-11(b) and (c).
13Lawler and Cole CPAs, LLC v. Cole, 267 So.3d 311 (Ala.Civ.App. 2018)(CPA shot and killed by client deemed compensable work injury); See also Dean v. Stockham Pipe & Fittings Co., 123 So. 225 (1929). (Night watchman robbed and murdered and held compensable as hazards of night watchman job); See also Ex parte N.J.J. (In re N.J.J. v Wesfam Restaurants, Inc. d/b/a Burger King), 9 So.3d 455 (Ala. 2008) (Assault against manager instigated by racial motives held not compensable); See also Powell v. Jack Ingram Motors, Inc., 537 So.2d 37 (Ala.Civ.App 1988) (Car salesman shot and killed on break drinking beer held not compensable).

Attorney Contact Info

Trey Dowdey
trey.dowdey@swiftcurrie.com 
205.314.2409


Notable headlines from the last several years following the COVID-19 pandemic indicate an increase in workplace violence.
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