California: A Roadmap for Litigating Incidents of Workplace Violence

I. Compensability of Workplace Shootings

Workplace shootings have long held an interest among the workers’ compensation community. Perhaps not so much because of the complicated legal theories that must be untangled, but more because they often take root in alleged illicit relations amongst the parties involved. If the motive for murder is purely personal, unrelated to the employee’s work duties, does that factor alone bar an industrial finding for the victim?

In reviewing the comprehensive legacy of case law on workplace shootings, it appears the answer is a soft “no.” In order to be considered industrial, an assault at work “must have occurred in the course of employment” (COE) and must have “arisen from the employment” (AOE) with consideration of the various components set forth below.

By definition, almost all workplace shootings occur in the course of employment (COE). In most cases, the victim was conducting their usual business duties when an assailant arrived and assaulted them at their workplace.

It is the second element of industrial causation, i.e., that the injury must “arise out of employment” (AOE), which poses the more challenging burden for the employee to establish. The place of employment must be more than a mere “stage” for the workplace shooting. In order for the assault to be considered industrial, there must be a “causal connection” between the employment and the injury. The applicant must prove one of the following “causal business connections”:

OPTION A: The worker and the assailant must be “connected” in some way by a common employment (i.e., a co-worker, a customer, a client, a supervisor, etc.) and the employer must have had, or with due diligence should have had, some knowledge of the “work-related connection” between the victim and the assailant, OR

OPTION B: The employer must be the entity responsible for placing the employee in a position of danger which the employee would not have encountered if not otherwise engaged in their duties of employment.

If neither of these “causal connections” exists and the motive for the workplace shooting is purely personal, then the chain of causation between the employment and the injury is broken. The result is that the workplace assault would not be considered to have “arisen out of employment” (AOE) and cannot be considered industrial because of a lack of “causal connection.”

II. Compensable Workplace Shootings

A. Dacumos v. Pete’s Home; SCIF, 2022 Cal. Wrk. Comp. P.D. LEXIS 274

In the recent Noteworthy Panel Decision (NPD) of Dacumos v. Pete’s Home; SCIF, 2022 Cal. Wrk. Comp. P.D. LEXIS 274, the WCAB dealt with the case of Mr. Dacumos, who, while engaged in his usual work duties as an attendant at an assisted living facility, was shot and killed by a co-worker, Mr. Go, on 11/9/2020.

Mr. Go’s actions were apparently triggered by his suspicions that Mr. Dacumos was having an affair with Ms. Go, the assailant’s wife. The three individuals, the assailant, Mr. Go, the decedent, Mr. Dacumos, and Ms. Go, had all become acquainted at some point through a shared work environment provided by defendant.

1. Injury Occurred in Course of Employment (COE)

As stated above, the injury occurred at the work site, while Mr. Dacumos was performing his usual work duties. Therefore, the injury occurred in the course of employment (COE).

2. Injury Arose Out of Employment (AOE)

The WCJ also found that the applicant was successful in meeting his burden of proving that the injury arose out of employment (AOE).

It was clear from the evidentiary record that the decedent and the assailant were “connected” by a common employment. They were co-workers. The evidence also indicated that the assailant’s wife, Ms. Go, was a former co-worker of Mr. Dacumos.

But did the employer know about the personal animosity held by Mr. Go against his co-worker Mr. Damucos? Apparently yes, the evidence established Mr. Go had brought this issue to the attention of their supervisor, Ms. Reddy. He had told her that he had concerns about his wife, Ms. Go and Mr. Dacumos having an affair. The supervisor then complied with Mr. Go’s request to “alter their work schedules so that they [Mr. Go and Mr. Dacumos] would not be on duty at the same time.”

3. Workplace Shooting Is Industrial

Given that the victim and assailant were co-workers and that their supervisor had first-hand knowledge of Mr. Go’s grievance against Mr. Dacumos (per the “causal employment connection” of OPTION A listed above), applicant met his burden of proving that the workplace shooting arose out of employment (AOE) and it was therefore deemed industrial.

B. California Compensation & Fire Co. v. W.C.A.B. (Schick) (1968) 68 Cal. 2d 157, 33 Cal. Comp. Cases 38

In reaching the above conclusion in the NPD of Dacumos, supra, the WCAB relied on the California Supreme Court case of California Compensation & Fire Co. v. W.C.A.B. (Schick) (1968) 68 Cal. 2d 157, 33 Cal. Comp. Cases 38.  

The Schick case dealt with an aggrieved ex-husband who wanted to kill his ex-wife, Lillian Schick. To that end, Carl Schick created an elaborate scheme to do so. He rented an apartment, so that Lillian would not recognize his “new” address. He then called her place of employment, a retailer for “table-top protectors” and indicated he wanted to purchase a top protector for his dining room table. He knew that his ex-wife would be the employee assigned to visit his residence for the purpose of measuring the table for his purchase. When his ex-wife, Lillian, appeared at Mr. Schick’s apartment to measure his table, he shot and killed her.

1. Injury Occurred in Course of Employment (COE)

Although Lillian was not at her usual place of business, the retail outfit, when she was shot and killed, she was in the usual process of conducting her work duties at a location that would equate to her legal “place of business.” Therefore, applicant met her burden of proving the assault occurred in the course of employment (COE).

2. Injury Arose Out of Employment (AOE)

Next, the analysis turns on whether Lillian’s murder arose out of employment (AOE). Since the ex-husband’s motive was purely personal against his ex-wife who planned to remarry and leave him behind, how could the court find the injury arose out of employment (AOE)?

For that, we look to “causal employment connection” OPTION B. As set forth above, OPTION B requires that the employer be the entity responsible for placing the employee in a position of danger which the victim would not otherwise have encountered outside of her place of employment. Although the ex-husband’s motive for murder did not arise out of Lillian’s employment, it was still a “substantial factor” of the incident. She would not have been at the location where she was murdered, but for the fact that her employer had sent her there to perform work business. Thus, applicant met her burden of proving a causal connection between her employment and her injury (AOE) under OPTION B.

3. Workplace Shooting Is Industrial

The victim in this case was in the course of her employment (COE) when she was shot and killed. In addition, it was her employer who, however unwittingly, placed Lillian in mortal danger. Thus, applicant met the burden of proving the assault arose out of employment (AOE) and her death was deemed industrial.

The Supreme Court in Schick concluded:

There is no sound reason to deny compensation to an employee whose duties expose her to a peculiar risk of assault merely because the assailant was motivated by personal animus. Had Mrs. Schick gone to the home of a customer whom she had not met before and had he committed an assault upon her for purely personal reasons unconnected with her employment, there seems to be no doubt that she would have been entitled to compensation. The mere fact that the "customer" was her former husband who had arranged an elaborate ruse to facilitate the commission of the assault does not, under the rationale of Madin [v. IAC (1956) 46 Cal. 2d 90, 21 Cal. Comp. Cases 49], exclude her employment as a contributory cause or vitiate the implied finding of the board that the assault was sufficiently connected with her employment to be an incident thereof.

III. Non-compensable Workplace Shootings

A. Transactron, Inc. v. W.C.A.B. (Spears) (1977) 68 Cal. App. 3d 233, 42 Cal. Comp. Cases 236  (1st District Court of Appeal)

Sharon Cornelius was working as a receptionist for defendant when her boyfriend entered the work premises on 4/22/1975. He tracked her down to where she was hiding in the ladies’ room, where he shot and killed her.

1. Injury Occurred in Course of Employment (COE)

Since Ms. Cornelius was at her usual place of business when she was shot and killed, applicant met her burden of proving the assault occurred in the course of employment (COE).

2. Injury Arose Out of Employment (AOE)

The next issue is whether Ms. Cornelius’ murder arose out of employment (AOE). Her boyfriend’s motive for the murder was purely personal, but as discussed above, motive is not always the determinative factor. Does this fact pattern fit into either “causal employment connections” of either OPTION A or OPTION B linking employment with the injury?

In order for OPTION A to apply, the worker and the assailant must be “connected” in some way by a common employment (i.e., a co-worker, a customer, a client, a supervisor, etc.) and the employer must have had, or with due diligence should have had, some knowledge of the “work-related connection” between the victim and the assailant. The facts do not indicate any work-related connection between Ms. Cornelius and her boyfriend. OPTION A is not available.

Next, we turn to OPTION B as a possible path to compensability. Do the facts in this case indicate that the employer was responsible for placing the Ms. Cornelius in a position of danger? There is no probative evidence to support that the employer was in any way involved in placing Ms. Cornelius in harm’s way.

Both the WCJ and the WCAB had found applicant had met the burden of proving her injury fell under the “causal business connection” under OPTION B. Apparently, a co-worker had unwittingly directed the boyfriend to the ladies’ room, where applicant was hiding. Had the co-worker not done so, applicant might have escaped harm that day. However, the First District Court of Appeal overturned the WCAB ruling and held in favor of the employer explaining:

There is no aspect of the victim’s employment as a receptionist which intrinsically raised the level of risk to her from a personally motivated assault. The role of employment in the shooting is inconsequential when it merely provides a place where the assailant can find the victim.

3. Workplace Shooting Is Non-Industrial

Even though applicant was successful in arguing the death occurred in the course of employment (COE), applicant was not successful in proving the assault arose out of employment (AOE). Therefore, the murder was considered non-industrial

B. Hutchings v. W.C.A.B. (1999) 64 Cal. Comp. Cases 1170  (writ denied)

Ryan Hutchings was working as a furniture salesman for defendant when he started dating one of his female customers. On 9/24/98 the female’s ex-husband entered the store and forced Mr. Hutchings at gunpoint into his car parked in the store’s lot, where he shot him.

1. Injury Occurred in Course of Employment (COE)

Since Mr. Hutchings was at his usual place of business when he was shot, he met his burden of proving the assault occurred in the course of employment (COE).

2. Injury Arose Out of Employment (AOE)

The analysis then turns on whether Mr. Hutchings’ injury arose out of employment (AOE). The assailant’s motive against Mr. Hutchings was purely personal. He did not approve of Mr. Hutchings dating his ex-wife. However, as discussed above, motive is not always determinative. Does this fact pattern fit into the “causal business connection” of either OPTION A or OPTION B?

In order for OPTION A to apply, the worker and the assailant must be “connected” in some way by a common thread of employment (i.e., a co-worker, a customer, a client, a supervisor, etc.). Although there does appear to be an employer connection between the victim and assailant’s ex-wife (a customer of the victim) whom the victim once dated, there was no evidence presented of an industrial link between the jealous ex-husband and the victim. OPTION A is not available.

Next we look to OPTION B as a possible path to compensability. Was the employer responsible for placing the Mr. Hutchings in a position of danger which the victim would not have encountered outside of his place of employment? There is no evidence in the record that the employer was in any way involved in placing Mr. Hutchings in any danger. OPTION B is not available.

3. Workplace Shooting Is Non-Industrial

In finding the injury non-industrial, the WCAB explained that the rationale behind the “causal employment connection” rule between the employment and the injury was as follows:

The reason for this rule would appear to be that when it is known that the assault was committed out of a personal motivation or grievance, then the chain of causation between the employment and the injury is broken. Thus, when the assault is personally motivated, it could conceivably occur anywhere, and thus precludes employer contribution. [Citing SCIF v. W.C.A.B., Vargas Castellanos (1983) 133 Cal. App. 3d 643, 47 Cal Comp Cases 729.]

Even though applicant was successful in arguing the shooting occurred in the course of employment (COE), he was not successful in proving the “causal business connection” between the employment and the assault (AOE). Therefore, the shooting was considered non-industrial.

IV. Takeaway

With regard to workplace shootings, motive is not necessarily the determinative factor for meeting the burden of proof for a “causal business connection.” Instead, litigators must focus on the unique facts of each case to determine whether such an incident might qualify as industrial.

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