Alligators, Burritos and Bears – Oh My!
Having litigated several “assault” cases, nothing ceases to amaze this author more than the vast number of unfortunate ways people find themselves in the most bizarre and unforeseeable situations. Courts across the United States adjudicating assault-based cases in the workers’ compensation context are faced with determining whether the events leading to the assault arose out of an injured workers’ employment or whether the event was purely personal in nature. Here are some of the more inexplicable events that could give rise to a claim — you decide whether these claims would be compensable.
In 2007, an individual was feeding a bear at the Great Bear Adventure in northern Montana. It was undisputed that the individual had smoked pot prior to entering the bear cage with food. The manager of the park had told the individual not to feed the bear as the food was being tapered due to hibernation. When the individual entered the enclosure, he was mauled by the bear. Although the employer argued that the individual was outside the scope of the employment, the Montana appellate court found that the bear was “an equal opportunity mauler” who attacked regardless of the marijuana use. As noted by the decision, the use of drugs (which the court admonished at best) had no bearing on the actual animal attack.
More traumatically, in August 2018, police were called to a construction scene in Wisconsin. The police discovered that a co-worker allegedly attacked and killed another co-worker with a circular saw. The co-worker was arrested at the scene. A subsequent investigation documented that the co-worker assailant had told other crew members during the day of the attack that other crew members were teasing him about a one-night stand he had had the evening before. The legal question, other than the criminal liability of the assailant, is whether the decedent’s estate/dependents would be entitled to workers’ compensation death benefits? Was the attack work related, or did it arise out of a direct personal dispute between the assailant and decedent? Based upon the facts of this case, you be the judge.
Although the case above could be on the border of compensability depending on the facts, a more clear-cut assault occurred in January 2018 in South Carolina. During that event, the manager of a fast food restaurant got into a heated verbal altercation with an employee over shift scheduling. When the manager told the employee to “stop being a crybaby,” the employee wrapped up the argument by throwing a hot, “loaded burrito” at the manager. According to the manager, melted cheese stuck onto the manager’s left side and leg. Apparently, the manager recovered from the hot cheese injuries, but could a mental impairment injury also be included in this type of event?
Finally, imagine yourself working as a fast food drive through employee. It’s a typical day of serving food and drinks, handing the items to customers through an open window. Now imagine serving a soft-drink, and, while the window is open, the customer throws a three-and-a-half-foot alligator through the window at you. In 2016, that is exactly what happened to a fast food employee in Florida. The customer was later apprehended and claimed that he threw the alligator into the restaurant as a funny prank. While it is unclear whether the employee sustained any physical injuries, the assault by semi-aquatic reptile exemplifies what a neutral force assault is in terms of workers’ compensation liability for injuries arising out of employment.
The above cases raise unique issues concerning assaults, whether by an animal, a co-employee, or a random person who just happened to pick up an alligator from the side of the road prior to getting lunch, that can be tricky and fact dependent. When you need help untangling the facts and details surrounding a claim, please contact us.