Tortious Behavior Against Employees: Strategies and Defenses
By Brian M. Dougherty
The general rule of thumb is that accidental workplace injuries are compensable under the Illinois Workers’ Compensation Act (“IWCA”); however the IWCA is not limited to construction tradesmen who are injured at construction sites. Employees who are physically and emotionally victimized by co-workers may also file claims under the IWCA. But an injured worker may be unsure if the IWCA will provide the exclusive remedy, because it is questionable whether the injury arose out of and in the course of employment, or an employee may claim that he was intentionally injured by the employer, thus taking the case outside the IWCA’s boundaries. For instance, an employee that is injured by a third party after hours while traveling for work (e.g. drunken brawl at hotel bar) or while socializing after work might be gray areas for some employees. This is especially true with remote workers or those employed in what is being described at “the gig economy.1” Another exception to suing one’s employer would be harassment in violation of state and federal anti-discrimination laws.2
Not knowing which side of the fence the case will ultimately end up (e.g. in circuit court or before the Worker’s Compensation Commission), an employee may file both an IWCA claim and a civil action against his employer, although they need not be filed simultaneously. This article analyzes some theories of recovery that can be pursued by an employee as well as an employer’s “preemption”3 argument based on the IWCA.
In order to state a claim for negligence, one must prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach.4 The notion of a legal duty includes, as a factor, whether the harm was foreseeable. This could come into play if any employee is harmed by a criminal act perpetrated by a third party. But a criminal act is generally unforeseeable. An injured employee would have to show that the employer knew or should have known of past criminal activity by the perpetrator, at a minimum. For example, negligent hiring or retention is a theory that could be pled if an employer knew that a worker had committed assaults on other prior occasions and a fellow employee was subsequently assaulted by that worker. A delivery driver who engaged in a prior battery would not be considered negligently retained if he improperly stacked some shelves which caused the contents to fall on a co-worker. The negligent retention theory is quite specific.
Exceptions to “No Duty” of Care
Because a criminal act is generally unforeseeable, a party owes no duty of care to protect another from the harmful or criminal acts of third persons.5 Illinois recognizes four exceptions to this rule: (1) when the parties are in a “special relationship” and the harm is foreseeable; (2) when an employee is in imminent danger and this is known to the employer; (3) when a principal fails to warn his agent of an unreasonable risk of harm involved in the agency; and (4) when any party voluntarily or contractually assumes a duty to protect another from the harmful acts of a third party.6
“Special Relationship” Exception
The four “special relationships” are: common carrier and passenger, innkeeper and guest, custodian and ward, and possessor of land who holds it open to the public and members of the public enter in response to the possessor’s invitation.7 This exception is generally not helpful to employees since “Illinois does not consider the employer-employee relationship to be one of the special relationships covered by the section 314A exception.”8
Imminent Danger Exception
“The second exception to the rule against tort liability for the criminal activities of third persons comes from section 512(1) of the Restatement (Second) of Agency.9 “That exception imposes a duty on employers to exercise reasonable care to protect an employee who comes into a position of imminent danger or serious harm and this is known to the employer.”10 This section is meant to impose liability when the servant “has no power to save himself.”11 But this exception is not as broad as it may seem. “Inchoate threat[s]” of “harm occasioned by [a] criminal act” that “might occur to an unspecified person at an unspecified time and location” is not envisioned by Section 512(1).12 In Peterson v. U.S. Reduction Co., the employee was shot and killed while driving a truck during a labor strike. The only threat to drivers at the time did not involve any handgun violence, but picketers throwing objects at trucks. The appellate court affirmed dismissal of the complaint in favor of the employer finding that the exception did not apply.13 This exception appears to a re-formulation of the negligent retention-type theory discussed earlier.
Failure to Warn Exception
The third exception is based on Section 471 of the Restatement (Second) of Agency. “[B]ased on section 471 of the Restatement (Second) of Agency, a duty for an employer to issue a warning to an employee would arise only where the risk is (1) unreasonable, (2) involved in the employment, (3) foreseeable, and (4) the employee is not likely to become aware of it on his own.”14 The phrase “involved in the employment” means that “the risk … must arise from the particular nature of the employment.”15
In MacDonald, the plaintiff alleged that the defendant employed the decedent and David Maust (“Maust”). Defendant owed a residential building and leased an apartment to decedent and another apartment to Maust. Maust killed the decedent, but the homicide did not occur while they were working at the defendant’s place of business. The plaintiff argued that a duty to warn existed, but the appellate court disagreed. The court noted that the complaint did not allege that the murder occurred while the two men were engaged in the course of employment.16 Also, there were no allegations that the murder occurred at the business premises.17 The only connection between decedent and Maust is that they became friends at work, but “friendship is not a risk peculiar to the employment [at the business].”18 Thus, the court held that the decedent’s “injuries were not involved in his employment relationship with defendant.”19
The landlord-tenant relationship is also not a “special relationship” so that theory would not have helped the plaintiff. The innkeeper exception would not apply either since that deals with modern day hotels.
“Under a voluntary undertaking theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of the undertaking.”20 This is a narrowly construed theory and Illinois looks “to the Restatement (Second) of Torts (Restatement (Second) of Torts §§ 323 through 324A (1965)) in defining the parameters of liability.21 “In the case of ‘nonfeasance,’ a plaintiff must allege facts to indicate (a) that the defendant voluntarily undertook to render services necessary for the protection of another person or took charge of another person’s protection; (b) that the defendant failed to exercise reasonable care in that it wholly failed to perform the undertaking; and (c) that harm was suffered because of the other person’s reliance on the defendant’s undertaking.”22 One example is providing workplace security. But this does not mean that the employer can guarantee everyone’s safety at work.23 For instance, if the undertaking is hiring an unarmed security guard who performs outside walk-throughs at an industrial plant after business hours, then that is the extent of the employer’s duty. If the guard was otherwise competent but harm ensued to an employee inside the plant during business hours (e.g. workplace shooting), the employer should not be liable.24
Duty to Control
A duty to control one’s employee is predicated on Section 317 of the Restatement (Second) of Torts. Invoking this theory requires a showing that the servant was in the “habit” of committing certain misconduct. Restatement (Second) of Torts, § 317, Cmt. c. This means “the practical opportunity for effective control arising from the general master-servant relationship and from the connection between the dangerous conduct and the employment.”25 The duty to control also imparts the requirement that the employer have some knowledge of the employee’s tendencies.26 Without some reason to know of an employee’s propensity for violent behavior, it would be difficult to establish liability under this theory. This would also be true if the employee engaged in grave misconduct that was not reasonably expected in the job.27 This type of theory could be used where employees encounter risks of physical harm in the nature of their employment, such as bodyguards, private security guards and bouncers. These types of employees may routinely need to physically engage with third-parties and such encounters can exceed the amount of reasonable force to be exerted by these types of employees.
When workplace injuries occur, the first place to look should be the IWCA. The IWCA has language providing that it is the exclusive remedy in the case of workplace injuries. Section 5(a) of the IWCA provides:
No common law or statutory right to recover damages from the employer, *** for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act ***.28
“The [IWCA] provides employers with a defense against any action that may be asserted against them in tort, but that defense is an affirmative one whose elements - the employment relationship and the nexus between the employment and the injury - must be established by the employer ***.”29 “Illinois law is clear that unless an employer has committed or expressly authorized a co-employee to commit an intentional tort against an employee, the [IWCA] prohibits common law actions seeking damages for such torts.”30 Thus, workplace assaults and batteries are generally compensable under the IWCA.31 So too are injuries resulting in pure emotional distress.
When faced with a complaint, the employer can certainly raise the IWCA as an affirmative defense. If the defense is plainly shown on the face of the complaint, the employer can file a section 2-619 (735 ILCS 5/2-619) motion to dismiss or a summary judgment motion. The plaintiff would need to show that one or more elements of IWCA compensability do not exist. For instance, the employee could argue that the employer expressly intended to cause the employee harm, or that the injury did not arise out of or in the course of employment. Thus, the IWCA defense, if not clear in the pleading stage, may require discovery to flush out evidence that the claim is really preempted.
Accepting IWCA Benefits
Employers also need to be aware of whether the employee voluntarily solicits workers’ compensation benefits or settles a workers’ compensation claim. If the employer, unsolicited (e.g. employee has not filed an IWCA claim), starts paying IWCA benefits and the employee deposits the funds, the IWCA preemption defense does not apply. The employee must take some affirmative act to obtain benefits in order for the employer to assert IWCA preemption.
Employers may have insurance defense counsel representing them on the coverage side and separate private counsel for the tort defense. A plaintiff’s voluntary acceptance of benefits, or a settlement, will result in preemption regardless of any contested compensability issues.32 For instance, if a worker filing a claim for benefits was not really an “employee” but rather an “independent contractor,” that worker would still be barred from maintaining a civil tort action against the company he contracted with.33 The reason for this rule is quite simple: there is only one recovery against an employer regardless if that entity is a paradigmatic “employer” of the person claiming benefits.34
Plaintiffs have tried arguing around the one recovery rule, but to no avail. For instance, a plaintiff cannot settle a tort suit and carve out an exception for pursuing workers’ compensation benefits.35 Arguing that your co-employee committed an intentional tort does not work either.36 If benefits were not previously paid by the employer and the workers’ compensation case is settled, the prior non-payment of benefit has no effect on the one recovery rule.37 As can be seen from the case law, there is no wiggle room once benefits are voluntarily sought and accepted by a plaintiff.
Injured employees want to maximize their recoveries, and the best way of doing so is getting their cases before juries. Depending on the factual context, Illinois may allow employees to assert common law tort claims against their employers. This may be the exception as opposed to the rule. When employees are injured by other employees or third-parties for acts that appear intentional, employees stand a better chance of evading the limitations of the IWCA. However, IWCA preemption is a powerful defensive tool that can be wielded by any employer to ward off common law claims, thus requiring the injured employee to bring a claim in the forum that governs administration of the IWCA.
1. https://whatis.techtarget.com/definition/gig-economy (last visited Sept. 26, 2018).
2. A lawsuit would be the first judicial step after administrative procedures are followed.
3. It is really an “exclusive remedy” defense, but attorneys are probably more familiar with the term “preemption”.
4. Rowe v. State Bank of Lombard, 125 Ill.2d 203, 215 (1988).
5. MacDonald v. Hinton, 361 Ill. App. 3d 378, 382 (1st Dist. 2005).
6. MacDonald, 361 Ill. App. 3d at 382, citing Restatement (Second) of Torts § 314A.
7. Marshall v. Burger King Corp., 222 Ill. 2d 422, 438 (2006).
8. MacDonald, 361 Ill. App. 3d at 38 (emphasis supplied).
10. Id. (internal quotation marks omitted), quoting Restatement (Second) of Agency § 512(1) (1958).
11. Id. § 512(1), Cmt. Sub. (1).
12. Peterson v. U.S. Reduction Co., 267 Ill. App. 3d 775, 782 (1st Dist. 1994).
14. MacDonald, 361 Ill. App. 3d at 383 (emphasis added), citing Restatement (Second) of Agency § 471 (1958).
15. MacDonald, 361 Ill. App. 3d at 385; Iseberg v. Gross, 227 Ill.2d 78, 93 (2007).
16. MacDonald, 361 Ill. App. 3d at 385.
18. Id. at 386.
20. Bell v. Hutsell, 2011 IL 110724, ¶ 12.
22. Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193, ¶ 13 appeal den’d, 21 N.E.3d 718.
23. Jackson v. Shell Oil Company, 272 Ill. App. 3d 542, 550 (1st Dist. 1995) (defendant “did not undertake to become absolute insurer for harm done…”); Wells, 2013 IL App (5th) 110570 ¶ 64.
24. Cross v. Wells Fargo Alarm Servs., 82 Ill.2d 313, 318 (1980) (finding housing authority’s voluntary assumption of duty to provide guard services obligated it “to use reasonable care not to create increased dangers to persons lawfully on its property”).
25. Hills v. Bridgeview Little League Association, 195 Ill.2d 210, 240 (2000).
26. “Section 317 also requires, as a condition of imposing an affirmative duty to control, that the master know or have reason to know ‘of the necessity and opportunity’ to control the servant.” Hills, 195 Ill.2d at 237; Kigin v. Woodmen of the World Ins. Co., 185 Ill. App. 3d 400, 403 (5th Dist. 1989) (complaint sufficiently pled Section 317 liability when a supervisor was present at the premises and knew of the accuser’s tendencies).
27. “Serious crimes are generally unforeseeable because they are different in nature from what employees in a lawful occupation are expected to do.” Hills, 195 Ill. 2d at 238 (citation omitted).
28. 820 ILCS 305/5(a).
29. Doyle v. Rhodes, 101 Ill. 2d 1, 10 (1984).
30. Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155, ¶ 20.
31. Rodriguez, 2012 IL App (1st) 113155, ¶¶ 16-17.
32. James v. SCR Medical Transp., Inc., 2016 IL App 150358.
33. Miller v. Miller, 187 Ill. App. 3d 176 (4th Dist. 1988).
34. Collier v. Wagner Castings Co., 81 Ill.2d 229 (1980); Fregeau v. Gillespie, 96 Ill.2d 479 (1983).
35. Rhodes v. Industrial Comm’n, 92 Ill.2d 467 (1982).
36. Vance v. Wentling, 249 Ill. App. 3d 867 (2d Dist. 1993).
37. Miller, 187 Ill. App. 3d at 176 (case settled; no mention of benefits being voluntarily paid prior to settlement).