Victim of Mock Robbery Entitled to Damages

Employee ‘held up’ by co-workers during training exercise was not limited to workers’ compensation remedies

By Joanne Deschenaux, J.D. Feb 27, 2017
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​A cashier who was the victim of a mock robbery by co-workers was entitled to damages for assault and intentional infliction of emotional distress, a California appeals court ruled. The jury received correct instructions about the workers' compensation exclusivity rule and its award of $360,000 should stand, the court concluded.

Kathy Lee worked as a cashier for the West Kern Water District. She worked behind a partition where customers came to pay their water bills, often in cash. The district provided its employees with training on how to respond to a robbery. Four supervisors formed a plan to test how the district's female employees would respond if they believed they were really being robbed.

On July 29, 2011, male employees were given various reasons to be away from the office. Lee and three other women were left working in the office. While Lee was at the front counter, one of the supervisors entered the office wearing a ski mask, sunglasses and a hat. He approached Lee, put a paper bag on the counter and pointed at it. On the bag was written the message "I have a gun. Put your money in the bag."

Lee complied. One of the other supervisors was outside telling customers not to come in, and the remaining two were watching the mock robbery by surveillance video. Only after the "robbery" was over did the four tell Lee that it had been a training exercise.

Lee's complaint alleged that after the incident, she was crying, shaking and nauseous and had to go home. She later suffered from fear, depression, nightmares, headaches, loss of appetite and ongoing nausea. She sought psychological treatment and used all her accrued sick leave and vacation time during an extended absence from work.

She sued the district and the four managers for intentional infliction of emotional distress and assault. After a trial, the jury awarded Lee $360,000. The trial court, however, granted the defendants' motion for a new trial after concluding that it had given the jury an inappropriate instruction on the workers' compensation exclusivity rule.

[SHRM members-only toolkit: Managing Workers' Compensation Costs and Caseload]

Lee appealed the order granting a new trial, and the appellate court reversed the trial court's order, reinstating the jury verdict.

Did Workers' Compensation Exclusivity Rule Apply?

The workers' compensation exclusivity rule provides that, with certain exceptions, an injury sustained by an employee arising out of, and in the course of, his or her employment is compensable by a workers' compensation insurance award only, not by a judgment for damages.  

At trial, the district and the four managers argued that Lee could seek only a workers' compensation award because she was working when the mock robbery occurred. Lee argued that because the mock robbery was not part of her job, her sole remedy should not be workers' compensation.

The trial judge instructed the jury that Lee would be limited to a workers' compensation remedy if the defendants proved that she was injured "while she was performing a task for or related to the work the defendants hired her to do."

The judge also gave an instruction based on Fermino v. Fedco Inc., 7 Cal.4th 701 (1994). Jurors were told that an employee's remedy was not limited to workers' compensation "when the employer steps outside of its proper role or engages in conduct unrelated to the employment."

The appellate court concluded that these instructions were correct. Under Fermino, the court explained, it is possible for an employee to be at his or her place of work, performing his or her usual duties, and yet recover damages based on the conduct of the employer, or conduct attributable to the employer, that is outside the employer's proper role.

The appeals court noted that "If the jury found that carrying out the mock robbery was not within the employer's proper role, it could also find that unwittingly participating in the mock robbery as a victim was not part of the employee's work."

Lee v. West Kern Water District, 5 Cal.App.5th 606 (Nov. 15, 2016).

Professional Pointer: While conducting any workplace training exercise, concerns for workers' safety should remain paramount. "Pretend" violence without employees' knowledge of the simulation is probably not a good idea.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.

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