Lawsuit Against Co-Worker Not Barred By Workers Comp Law

Workers’ compensation law doesn’t bar lawsuits against co-workers alleging intentional injury, Nevada’s Supreme Court ruled in the case of a casino employee alleging her employer’s security guards assaulted her.

Fanders vs. Riverside Resort & Casino Inc. stems from alleged injuries Juana Fanders suffered when security guards were instructed by a human resources director to “86” her, or remove her from the premises, after a dispute over her conduct at work, court records show.

During the procedure, security guards tried to photograph Fanders and she resisted by climbing under a table. Fanders alleges a guard grabbed her by her hair and pulled her out from under the table while calling her a derogatory name.

She was then handcuffed and placed in a holding cell at the casino security office until a police officer arrived and cited her for battery against a guard, court records state.

Fanders sued, alleging assault and battery, vicarious liability, wrongful imprisonment and negligence. A district court granted summary judgment to her employer and the security guards finding that Nevada’s workers’ compensation law provided Fanders with an exclusive remedy because her injuries arose out of her employment.

On appeal, Nevada’s Supreme Court ruled Dec. 30, 2010, that the district court erred in granting summary judgment because several questions of fact remained regarding whether Fanders’ injuries arose out of her employment.

The high court acknowledged it had not previously addressed whether an employee “can maintain an action outside of the workers’ compensation statute against a co-employee who purportedly commits an intentional tort against the employee.”

It found that “when a plaintiff states a viable intentional tort claim against a co-employee,” that claim is not barred by workers’ compensation exclusivity provisions.

The high court also said that “even if the district court concludes that Fanders’ claims arose out of and in the course of her employment with Riverside, she may still pursue her assault and battery and wrongful imprisonment claims against the security guards.”

It remanded the case to the district court for proceedings consistent with its opinion.  

 Filed by Roberto Ceniceros of Business Insurance, a sister publication of Workforce Management. To comment, e-mail editors@workforce.com.

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