Is Employer Liable for Injuries in Workplace Robbery?

Under what circumstances is an employer liable for an employee's injuries sustained during a workplace robbery? Does it matter if the same workplace was also robbed twice in the recent past? The Ohio Court of Appeals recently faced that question.

What happened. A manager at a Monro Muffler & Brake store in Dayton, was struck in the face and injured during a workplace robbery on April 28, 2004. Before that robbery, the same store had been robbed twice in the recent past: once on March 22, 2004, and another time on April 20, 2004. The manager was also present at the store during those robberies but was unhurt.

After the third robbery, however, the manager sued Monro for an intentional workplace tort, arguing that the company knew about the dangerous condition in which it had placed the manager and failed in its duty to protect him from a known threat. A lower court ruled for Monro. The manager appealed.

What the court said. To establish the existence of an intentional workplace tort, the manager had to show all of the following elements: (1) that Monro knew of the existence of a dangerous condition; (2) that it knew that exposure to the dangerous condition would result in harm to the manager with substantial certainty; and (3) that, under the circumstances, it required the manager to continue to perform the dangerous task.

The appellate court found that the manager was unable to prove the second element. It agreed with the lower court that despite the evidence of the two robberies at the store within a month, there was nothing to show that Monro knew that injury to the manager was substantially certain to occur. In the two initial robberies at the store, no one was injured. It was only during the third robbery at the store that one of the robbers struck an employee.

"While the factual circumstances present in the instant case clearly demonstrate that the manager's work situation was dangerous," the court said, "Monro's knowledge and appreciation of the risk of harm its employees potentially faced is insufficient to impute knowledge with substantial certainty that any physical harm would befall its employees." Toner v. Monro Muffler & Brake, Court of Appeals of Ohio, Second Appellate District, No. 22227 (6/11/08).

Point to remember: The Ohio Supreme Court created the employment intentional tort as a very narrow exception to the workers' compensation system. In effect, the employee must establish facts to show that the employer's actions were so egregious that they must be treated as being outside of the employment context altogether, and thus, not completely compensable under the workers' compensation system.