Employer Tort Liability for Workplace "Mental or Nervous" Injuries?
I hypothesized here about whether last year’s supreme court decision in Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007), might have the effect of increasing employer liability for “mental or nervous” injuries sustained as a result of certain workplace incidents. Of course, recovery for such injuries under the Florida Workers’ Compensation Law is barred unless they are accompanied by physical trauma sufficient to require medical treatment. See §440.093(1), Fla. Stat. But under Willis, recovery for mental injuries in tort is not barred by the “impact rule” where the plaintiff was at least touched, even if the touching results in no physical injury.
Now comes the First DCA’s decision in Futch v. Wal-Mart Stores, Inc., decided on 7/31/2008, which arguably bears out that hypothesis. There, Mrs. Futch, a Wal-Mart employee, was abducted at gunpoint from Wal-Mart’s parking lot by two assailants after she finished her shift one evening. After a four-hour drive, her assailants released her at a Waffle House located several hours from her home. Fortunately, she was not physically harmed in the incident.
In her tort claim against Wal-Mart for negligent infliction of emotional distress (failure to provide reasonable security), Mrs. Futch testified in deposition that so far as she could recall, she was not “touched” by her assailants at all during her abduction. Based upon that testimony, Wal-Mart moved for summary judgment on the grounds that recovery for her emotional injuries was barred by Florida’s “impact rule.” In opposition to the motion, Mrs. Futch filed an affidavit in which she stated that she in fact was touched by her assailants during the car ride. She explained that when she testified to the contrary in her earlier deposition she understood the word “touched” to have been used in the context of an "assault" or a "sexual touching."
The trial court didn’t buy her argument and granted summary judgment for Wal-Mart based on the “impact rule,” but the First DCA reversed. The court held that the affidavit showed that there remain genuine issues of material fact regarding whether she was in fact “touched” during her abduction.
The First District’s opinion doesn’t say whether Wal-Mart raised workers’ compensation immunity as an affirmative defense as a basis for the entry of summary judgment below, and the court doesn’t address that issue. But certainly physical injuries sustained in “parking lot” accidents are covered under Chapter 440 even if those accidents occur before or after the employee’s actual shift. See Bechtel Construction Co. v. Lehning, 684 So.2d 334 (Fla. 4th DCA 1996). See also Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla. 1980)(holding that an employee sustained a compensable accident where she was assaulted at home because her assailants thought she was carrying money belonging to her employer). So maybe this is a case where the employer recognized that if the employee’s injuries aren’t covered by Chapter 440, i.e., because of §440.093(1), they aren’t entitled to claim workers’ compensation immunity to tort liability for those injuries.
