Fitzsimmons Law Firm recently obtained a settlement on behalf of its client who was injured in a workplace attacked inflicted by his supervisor and co-employees. In his Complaint, the plaintiff asserted causes of action against his employer under both prongs of the "deliberate intention" statute pursuant to W.Va. Code §§ 23-4-2(d)(2)(i) and (ii). In West Virginia, an employer is granted immunity for work related injuries unless it can be proven that the employer acted with "deliberate intention." Deliberate intention can be proven in one of two ways: (1) the employer acted consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee; or (2) the employer intentionally exposed the employee to known specific unsafe working conditions which were violations of written safety standards, statutes, or regulations. The plaintiff also asserted a claim for punitive damages alleging that his employer's actions were willful, wanton, malicious and reckless.
According to the Complaint, the plaintiff was subjected to continued threats and harassment by his supervisors and co-employees over a span of several weeks. Shortly after the harassment began, the plaintiff reported the threats to upper management personnel on at least three separate occasions. These officials assured the plaintiff that corrective action would be taken and that it would stop the threatening and harassing behavior. Despite these promises and being notified on multiple occasions about the violent incidents involving the plaintiff's co-employees and the serious potential for the plaintiff to be physically harmed, the plaintiff's employer took no corrective action and permitted the abusive behavior to continue. The threats and harassment escalated and culminated in two vicious attacks carried out on the plaintiff where the plaintiff's supervisor slammed his head off a concrete wall several times and his co-employee choked him unconscious with a dog leash around his neck. Notably, during his deposition the defendant's retained expert testified as follows:
Q: [L]et me ask you, from reading that, in all the years -- and I know you have done murder investigations. You have done terrorism. You have done -- you have done pretty much everything, the whole gamut of crimes probably, right?
A: Yes.
Q: Is the way this boy was treated and this company not reacting to it for the year period or two, three week period even before that, is that about as despicable as you can see -- that you have seen as to people not doing something and stepping up?
A: I would say yes, in the context of workplace violence.
The plaintiff alleged that his employer intentionally exposed him to known specific unsafe working conditions which presented a high degree of risk and strong probability of serious injury or death by, but not limited to: failing to furnish employment free of workplace violence hazards; failing to prevent workplace violence, harassment, harassment retaliation, whistleblower retaliation, and bullying; failing to take appropriate actions in response to known and potential threats of violence; permitting a hostile work environment to exist; promoting a violent and threatening atmosphere for its employees; failing to protect its employees from workplace violence, harassment, bullying, and retaliation; failing to implement appropriate security measures; failing to appropriately monitor and supervise its employees; failing to adequately train supervisors and managers; failing to take security intervention steps based on information that the employer knew; and disregarding appropriate employee retention policies.
In addition, the events of the attacks were captured on the defendant's video surveillance system. However, the employer taped over them. The plaintiff filed a claim for spoliation of evidence on account of the tape's destruction.
As a result of the attacks, the plaintiff suffered headaches, neck pain, ringing in his ears, speech difficulty and blurred vision. A CT of the plaintiff's cervical spine indicated a rotator sublaxation at C1-2 with a 5 mm offset on the left and the plaintiff underwent a posterior cervical fusion of C1-C2 with an autograft bone. Subsequent X-Rays revealed a swam neck deformity with posterior wiring of the posterior element of the cervical spine. In addition to his physical injuries, the plaintiff also suffered severe psychological and emotional trauma and was diagnosed with Posttraumatic Stress Disorder (PTSD) and comorbid depression of a permanent nature. According to his treating psychiatrist, the plaintiff was not capable of engaging in sustained remunerative employment as a result of his psychological conditions.
In the Complaint, the plaintiff sought recovery for his medical bills, future medical bills, lost wages, and lost earning capacity, together with claims for pain and suffering, loss of enjoyment of life, emotional distress, annoyance and inconvenience, and embarrassment. The settlement and civil action did not affect the plaintiff's workers' compensation claim because the settlement monies were paid in excess of the plaintiff's workers' compensation benefits.