When Employees Attack
Businesses are staffed by people, and people have flaws. Sometimes employees and even managers attack a customer or another employee and cause major injury. Victims suffer pain and disfigurement, along with the indignity of a public beating. Customers end up in the hospital but are left with permanent injuries that never go away and hefty medical bills.
For most assaults, the individual perpetrator is unlikely to have money that can pay medical bills, lost wages, or pain and suffering to the victim, and the company will claim the assault was outside the course-and-scope of the employee’s job. In law, it’s the Plaintiff’s burden to prove why a company is liable. Moreover, defense lawyers look at these cases as prime billing opportunities and drive up costs and fees. We’ve developed legal strategies that deal with these situations to counter the usual defense tactics.
We’ve seen it all, from bouncers at a bar who turned over customers to a cartel knife attack, to a retail store manager who beat an elderly man in a wheelchair, to a security guard at a nightclub who shot up a customer’s car and then lied about it to police, to a manager of an industrial company who physically threatened an employee in writing to HR while HR defended the manager, to an apartment complex who kicked in a door and threatened the tenant instead of filing an eviction. We can’t give away all our strategies here, but know that assault cases are hotly contested, and we have a strong game plan.
While a physical injury from the assault increases damages, a physical injury is not necessary as long as the threat or physical action caused the victim to have a reasonable, serious fear of physical danger – like being shot at or having your door kicked in, or otherwise being reasonably afraid for your safety.
Companies Acting Badly
Businesses often have insurance policies, but that means dealing with insurance lawyers. They’re more concerned with avoiding liability than doing the right thing. To them, this is a legal game against victims.
The first thing all defendants do is blame the victim. Even if they can’t show the victim had any legal fault, their strategy is to paint the victim as acting badly so as not to be sympathetic. Other employees who want to keep their jobs are expected to testify the way the company says. Fortunately for Plaintiffs, most false witnesses don’t hold up well on cross-examination, when their stories don’t match facts. We’re also experienced at countering the blame-the-victim routine for the farce that it is. Victims do not deserve to be beaten or killed.
Most businesses also destroy their video surveillance. It’s a calculated decision that the video will outrage any jury beyond destruction of evidence. The usual excuse is the video recorded over and wasn’t saved because it didn’t capture the assault. We have a range of tactics for finding evidence or proving the excuses false.
Making Plaintiff’s Case
The main legal fight is whether an employee acted in the course-and-scope of his job when he assaulted the customer or had management control. Some people are under the impression that a plaintiff can only hold the company liable if the employee who committed the assault was one who normally uses physical force as part of their job, like a bouncer or security guard. This is not true.
An employee can be liable for assault, even if unauthorized, when the employee is engaged in a job function. For example, if part of the employee’s job is to decide when to ask customers to leave and the employee has discretion on how to act, and instead of calling the police decides to take matters in his own hands, that is inside the course-and-scope. Similarly, if an apartment complex employee’s job is to tell tenants that their lease is up, and one decides to kick in the door and threaten the tenant, this is course-and-scope. If a manager uses threats or physical bullying to get an employee to do work the way he wants, and one day it turns into an assault, it is again inside course-and-scope. It will not always be course-and-scope, but many times a company will be held liable for their employee’s conduct that relates to a job function.
Small businesses often claim that their employees are independent contractors, so they can deny legal responsibility. However, that usually means the business isn’t paying employment taxes either. Thus, we can show the owner is dishonest. Nevertheless, how workers get paid isn’t definitive on whether someone is an employee vs a contractor. For example, if someone’s a contractor, where is the written contract? Who gives them their instructions? Can they subcontract the job? There are number of factors to consider in whether a worker is an employee, and we pursue these in discovery.
Three separate negligence theories can also come into play along with assault: Negligent Hiring, Negligent Training, and Negligent Supervision. Companies are responsible for their own negligence when they hire poorly, when they don’t provide the right training to avoid violence, or when they don’t supervise someone who needs it. These are fertile grounds for factual discovery and depositions. Although companies are quick to blame the victim, and sometimes blame their employee, they still must address their own negligent acts in why they had a bad employee in the first place.
We recently settled with a security company where the owner himself was involved in passing on false information from the security guard to authorities that led to a shooting victim going to jail for a crime he didn’t commit – and a bouncer from the bar repeated the lies to police. That allowed us to pursue claims on multiple fronts for assault, malicious prosecution, and negligence. The case settled on the eve of trial. Defense counsel fought hard against malicious prosecution, but struggled with how to defend against assault and negligence. Ultimately, Defendants lost summary judgment on all issues, their own expert agreed the owner should have turned over video to the police, and their insurance company wanted out of the litigation. Despite a hard attempt at blaming the victim, the mountain of other issues prevailed.
Call Us Today
If you’re the victim of an assault, you should talk to an attorney. We’d like to see if we can help. For other attorneys with busy dockets or from other practice areas, please reach out. We co-venture with friends, new and old, or pay referrals.