The bar to sue an employer for damages in Virginia is high. Here’s how it got there.

The legal framework that victims of workplace violence must navigate to get restitution in Virginia is a difficult one.

Virginia’s Workers’ Compensation Act (VWCA) and the Virginia Supreme Court’s legal precedent heavily favor employers in these matters, experts say, leaving employees with only modest workers’ comp benefits rather than being able to sue for damages. This issue is central to three ongoing lawsuits in Hampton Roads — two against Walmart and one against Newport News Public Schools — stemming from workplace shootings, and is still fresh in the memories of the victims in the 2019 shooting at the Virginia Beach Municipal Center.

What separates Virginia is the law’s exclusivity provision and its lack of an exception for intentional acts or assaults on an employee, as well as the state’s interpretation of law. The act stipulates that if an employee accepts workers’ compensation, they are barred from seeking any other financial remedies from the employer.

More than 40 states have an exception allowing employees to sue for damages stemming from intentional acts, according to a 2022 article by the law firm Matthiesen, Wickert & Lehrer, S.C.

“Virginia law is overtly hostile to victims of violent crime in a civil justice context,” said Peter Everett, a partner at Blankingship & Keith law firm in Fairfax. “A simple rule that a number of states follow to ensure civil justice to crime victims is that an entity that invites people onto its property has a duty to act with reasonable care to protect their patrons [and employees] if they reasonably should’ve known of a risk of violent crime. That would not require business owners to stop all crime, but just act with reasonable care.”

Holding businesses accountable, he continued, would give them “an incentive — societal good — to take at least modest steps to protect people.”

“Our supreme court, with a couple of exceptions, has rejected that proposition,” Everett said.

To compel an employer to pay damages for physical and emotional injury, rather than receive only workers’ compensation, an employee must show that the injury does not meet at least one of three criteria: that it was an “accident” in legal terms, that the injury “arose out of” their employment, or that it occurred “in the course of” their employment. The Virginia Supreme Court has repeatedly argued that “arising out of and in the course of employment” should be “liberally construed to carry out the humane and beneficent purpose of the Workers’ Compensation Act.”

“When an injury satisfies all three criteria … the employee cannot sue the employer for damages resulting from the qualifying injury, and the employer cannot contest the employee’s right to receive compensation for that injury,” explained Robert Kaplan, a law professor at William & Mary University.

The Virginia Supreme Court has held for more than a century that intentional assaults by coworkers, or a third party, can be considered accidental under the act. One of the earliest rulings on this matter came in 1934, in Continental Life Ins. Co. v. Gough. It involved an insurance agent who was attacked with a hatchet by the son of a client and his friend who intended to rob him while he was driving to collect premiums in Norfolk.

His insurance carrier argued the agent should not receive workers’ compensation because the assault occurred due to the agent offering his attackers a ride as a “courtesy,”  meaning his assault was “personal” and not “in the course of employment.” The court ruled that assault was an accident under the act because it was a known risk of driving with large sums of money as required by his job, so the agent was awarded workers’ comp.

The Supreme Court’s majority opinion stated, “although the injury is the result of the willful and intentional assault of either a fellow-employee or a third person, this fact does not prevent the injury from being accidental within the meaning of the act.”

This ruling was cited in Haddon v. Metropolitan Life Ins. Co. in 1990, in which an employee appealed after her lawsuit against her employer for damages stemming from harassment and sexual discrimination by her branch manager was dismissed. The court ruled that workers’ comp is the exclusive remedy for an employee injured as a result of intentional tort by a fellow employee, arguing that her treatment by her boss was an “accident” under the act because the court has consistently defined an accident as “an event which … is unusual and not expected by the person to whom it happens.”

“While an ‘exact, comprehensive, legal definition [of accident] as applied to all circumstances’ may be impossible … we have long-standing precedent applicable to this case which places an injury caused by the intentional tort of an employer or fellow employee within the definition of injury by accident under the Act,” the court’s opinion reads.

Haddon was then cited in Schrmebs v. Chick-Fil-A (2001), in which a 15-year-old cashier at a Chick-Fil-A in Sterling was choked and dragged into the freezer by his manager after being told he mopped the floor with the wrong mop. He was left in the freezer long enough to have difficulty breathing and his skin had turned purple.

“The injuries as alleged occurred at a particular time and place” — as opposed to a “gradually incurred injury,” which does not fall under workers’ comp — “while Plaintiff was performing his work duties,” therefore it qualifies as an accident, the opinion read.

The rulings in Continental Life Ins. Co. and Schrmebs were cited, along with many others, in Walmart’s filing seeking to dismiss a $50 million lawsuit by an employee.

Based on Schrmebs, in part, Walmart has argued in court documents that “numerous federal courts have likewise dismissed cases brought under Virginia law on jurisdictional ground due to the Act’s exclusivity based strictly on the complaint where allegations demonstrate work-related factors contributed to an employee’s assault on a fellow employee.”

Despite this track record, two of the major lawsuits against employers in Hampton Roads have recently been allowed to proceed. A former Walmart employee’s lawsuit seeking $50 million in damages from the retail giant for her suffering as a result of a mass shooting by another employee, and a teacher’s $40 million lawsuit against Newport News Public Schools, stemming from her being shot by a 6-year-old boy in class, have both survived the employers’ initial attempts to have their complaints dismissed.

The judge in the Walmart case initially sustained the store’s attempt to dismiss the lawsuit but the employee was able to refile. Three other lawsuits, two by surviving employees and one by the estate of a deceased employee, were filed in the months after the shooting but were dropped, though they can still refile.

However, in the case of the Virginia Beach shooting — in which 12 people were killed and four wounded — none of the victims sued the city for damages, though the families of four victims filed wrongful death claims in December 2019. This was due, in part, to aspects of the case that led attorneys in the area to not be willing to take it on, according to Doug Fierberg, a personal injury lawyer who represented some of the families of victims of the Virginia Tech mass shooting.

Fierberg was asked by Joe Samaha, the father of a victim in the Virginia Tech shooting and advocate for victims of mass violence, to call around to attorneys in the Virginia Beach area to see if the May 31 shooting victims had any legal avenue to pursue damages. Fierberg said the attorneys he spoke to saw “too many hurdles” in the specifics of the case, based on what came out of the FBI investigation and that ultimately sovereign immunity would protect the city. Sovereign immunity is a legal principle that protects governments and their employees from tort liability claims under certain conditions.

“There wasn’t any advanced notice that this guy posed a viable, real, immediate threat to the life and safety of his coworkers, his guns weren’t unlawfully purchased and it was in a workplace setting in Virginia, and so under Virginia law principles of sovereign immunity apply as to what type of proof someone would have to provide in order to succeed on a claim against a governmental entity, which is a very high standard in Virginia,” Fierberg said, adding that

J.H. “Rip Verkerke, a University of Virginia professor specializing in labor law, said other facts “strongly suggest” that the shooter’s motivation was not based on any “personal” connection to the victims, but rather grievances that were specific to the workplace. In light of this, Verkerke lamented, only a change in the law would make the victims’ families tort claims viable. In his ruling allowing the lawsuit against NNPS to proceed, Judge Matthew Hoffman wrote that if an assault is “personal to the employee,” it did not by nature “arise from the employment.”

“Under Virginia law, even this horrific, violent assault is covered by the exclusive remedy provisions of the Workers’ Compensation Act unless the assailant’s motive was personal to the victims,” Verkerke said in an email. “Until (a law changes or the court reverses the precedent), most prudent attorneys would be likely to advise victims that their chances of prevailing in a tort claim are slight.”

Gavin Stone, 757-712-4806, gavin.stone@virginiamedia.com