‘Tort’ Claim Over Active Shooter Drill Fails

Takeaway: Workers’ compensation laws involve a trade-off: In exchange for insuring employee compensation for all workplace injuries and accidents, the laws bar most employee injury lawsuits. This bar may even prevent employees from suing employers for intentional injuries.

Workers’ compensation barred a so-called tort claim over an active shooter drill, the Nebraska Supreme Court ruled.

In May 2022, Catholic Charities of the Archdiocese of Omaha employed the plaintiff. According to the plaintiff, Catholic Charities’ executive director, chief of operations and chief of community engagement planned and carried out an active shooter drill one morning at the office where she worked. The plaintiff had no advance notice that a drill was taking place.

Instead, that morning the plaintiff heard loud bangs on her office door and was urged by the chief of community engagement to leave her office. When the plaintiff followed others toward the exits, the executive director told her a shooting was taking place.

The plaintiff later heard gunshots and saw a fellow employee lying outside on the ground, apparently dead or mortally wounded, and with what appeared to be blood on her hand. The plaintiff ran away from the building and toward a nearby shopping plaza. While running away from the building, she jumped off a retaining wall and jarred her back upon landing.

The plaintiff alleged that the chief of operations later told her son that it was all playacting and a safety drill and that they wanted to see how people reacted. The plaintiff went to counseling the day after the drill and sought treatment to address fear and depression caused by these events. She injured her back as a result of jumping off the retaining wall and continued to receive treatment for that injury.

The plaintiff filed a complaint in district court, asserting that Catholic Charities was liable for assault and intentional infliction of emotional distress. She alleged that Catholic Charities had intentionally terrorized her and caused her to fear for her life. Her complaint sought, among other things, damages for both mental and physical injuries, past and future medical expenses, permanent disability, and the loss of earnings and the impairment of future earning capacity.

Catholic Charities moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Nebraska Court Rules of Pleading. It asserted that, because the Nebraska Workers’ Compensation Act (“the act”) provided the exclusive remedy for her injuries, her complaint failed to state a claim upon which relief could be granted.

The district court granted the motion and dismissed the complaint. The plaintiff filed an appeal of the dismissal with the Nebraska Supreme Court.

On appeal, the Nebraska Supreme Court considered whether to allow an exception to the workers’ compensation bar to allow employee lawsuits based on intentional torts. Several other states, including Illinois, Indiana and South Dakota, have allowed such an exception. However, the court was not convinced that the rationales for recognizing intentional tort exceptions were consistent with the act and its precedent. According to Nebraska law, an injury is compensable under the act if it is unforeseen to the person experiencing the injury, even if intended by the injurer.

The plaintiff argued that, absent an exception, the workers’ compensation bar would violate the Nebraska Constitution, which states that every injury shall have a remedy by due course of law, and Nebraska public policy. She argued that she could not receive workers’ compensation because her injuries were emotional and nonphysical.

The court ruled that the plaintiff failed to properly bring a constitutional challenge to the act. The court further reasoned that the plaintiff was not barred from recovering workers’ compensation because her injury was nonphysical. In fact, she had claimed a physical injury to her back, and thus could not show that her claim would be barred as solely emotional in nature.

As a result, the Nebraska Supreme Court upheld the district court’s dismissal of the claims.

Lopez v. Catholic Charities, Neb., No. S-23-301 (Dec. 15, 2023).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.