Arising Out of the Employment: Are Mass Shootings Peculiar to the Employment?
The recent, tragic case of a schoolteacher being shot by one of her students could have long-lasting effects on workers’ compensation law and tort liability in the Commonwealth of Virginia. Due to significant potential tort liability, the teacher’s employer, the City of Newport News School Board, wants her injuries to be covered under Virginia Workers’ Compensation Act. The teacher and her attorney are asserting that her injuries should not be covered under the Act.
As many of you have seen in the news, a 25 year-old teacher in Newport News, Virginia, was shot by a 6 year-old student in her classroom. The student allegedly had a history of violent behavior. Thankfully, the teacher survived the shooting, but has filed a civil suit against the Newport News School Board and individual employees for $40,000,000.00 on the basis that they had knowledge that the boy was a threat to bring a gun to school, that the school had been warned that the student had a gun on the date of the shooting, and that the parties failed to take appropriate action.
The school board is seeking to bar her civil suit under the exclusivity principle codified in the Act. Specifically, pursuant to Va. Code § 65.2-307:
The rights and remedies herein granted to an employee when his employer and he have accepted the provisions of this title respectively to pay and accept compensation on account of injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.
In other words, if the employer and carrier accept the claim as a workers’ compensation injury, the injured worker may not pursue a civil suit action against the employer.
However, in order for the injured workers’ claim to be covered under the Act, the facts must establish that the claimant sustained an injury arising out of and in the course of her employment. There is no dispute that the shooting incident – which occurred in the classroom during a normal school day – occurred in the course of her employment. The only question is whether the shooting arose out of the teacher’s employment.
In any workers’ compensation claim, a claimant can establish that their injury arose of out the employment if they establish a causal connection between the claimant’s injury and conditions under which the employer requires the work to be performed. However, an injury is not compensable if it “comes from a hazard to which the employee would have been equally exposed” outside of the employment.” This analysis is also often framed as a requirement that the circumstances that led to the injury “must be peculiar to the work and not common to the neighborhood.”
Here, the school board wants to assert that a violence perpetrated by a student in school is a risk peculiar to a teacher’s employment because of the frequency of school shootings. If they prevail in this argument, the school board’s exposure would be limited to the medical and indemnity benefits available under the Act. Meanwhile, the teacher argues that being shot has nothing to do with her employment because she should have the expectation of performing her job without danger from first graders. Her $40,000,000.00 lawsuit signals her belief that the school board’s liability extends well beyond medical and indemnity benefits.
The Supreme Court of Virginia addressed the exclusivity principle, in detail, in the case of Gladys Lopez, As Personal Representative of the Estate of Lizeth Lopez v. Intercept Youth Services, Inc., Record No. 191545 (August 5, 2021) a case that our firm was involved.. In Lopez, an employee was killed by a resident of the facility where she was working. The Court held that her estate’s $10,000,000.00 lawsuit was barred by the exclusivity principle. The court noted that, while it was not necessarily expected that a patient would kill the employee, the probability of assault was heightened because of the nature of the decedent’s job. The outcome in Lopez suggests that the courts will adhere to the exclusivity principle, even if its application seems cruel.
In more common cases where the employee is trying to establish a causal-relationship between an assault and their injury, they are required to provide evidence of the causal relationship. For example, they could present evidence that the crime rate was very high in the location where they were required to work. Here, the school board is relying on the distressing frequency of school shootings to argue that there was a higher probability of being shot because she is a teacher. We expect that the Commission will require some statistical evidence in support of that theory. For her part, the teacher will argue that being a 1st grade teacher did not heighten the probability that she would be shot.
If the teacher’s civil suit is allowed to go forward, we may see a whole new class of employees for whom the exclusivity principle does not apply, i.e. employees whose job descriptions are not dangerous but they are at higher risk of death because mass shootings often occur in type of facility where they are working. Given a decades-long pattern of mass shootings in a wide variety of public and private places of employment – grocery stores, churches, malls, restaurants, offices, manufacturing plants, warehouses, etc. – a ruling in favor of the teacher could open the door for civil liability (or at least more litigation) for workplace violence involving a wide variety of employees. We will carefully monitor the case as it progresses through litigation.
Tips: Virginia is still not a “positional risk” state. In EVERY case, an adjuster should remember to evaluate whether there is a causal connection between the injury and the manner or conditions in which the work was required to be performed. If the employee has not described an added risk, the claim may be denied.
Should you have any questions about the issues discussed here or other legal issues, please do not hesitate to contact the lawyers at Ford Richardson.
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