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.
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
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
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
"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.