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employer and manager were to blame. Finally, the court stated that the third criterion, that the injury occur during the course of employment, refers to time, place, and circumstances of the injury. In the example, the plaintiff's injuries occurred during work hours, on company premises, and during a company party, thus satisfying that element.
By contrast, in Hanewinckel v. St. Paul's Property and Liability Insurance Company (Court of Appeal of Louisiana, 1992), a nurse was attacked as she was driving into the parking lot of the hospital where she worked. She was beaten for twenty minutes until security officers arrived. She sued and was awarded $773,000 at trial.
On appeal, the defendant argued that it was shielded from liability by workers' compensation laws. The court rejected that argument, however, finding that the plaintiff had not yet reported to work, the attack was not related to work, and the attack occurred in a publicly accessible place. (As seen in the Whittaker case mentioned earlier, Michigan courts, by contrast, tend to favor workers' compensation as the sole remedy.)
Mundy v. Department of Health and Human Resources (Supreme Court of Louisiana, 1992) adds another perspective. In this case, a nurse was stabbed in a hospital elevator as she was preparing to start her shift. She sued for negligent security and was awarded $125,000. The hospital appealed, arguing that workers' compensation was her sole remedy.
The appeals court reversed, finding that the injury occurred during the course of the nurse's employment, since the working day includes periods of time before the actual beginning of work and during preparations to leave work.
In fact, the attack occurred while the nurse's shift had already begun, the court noted. The court also found that the injury arose out of the plaintiff's employment, concluding that at the time of the attack she intended to pursue her employer's business and not her own business or pleasure: her work required her to ride the elevator at the time the attack occurred. The plaintiff appealed.
The Louisiana Supreme Court reversed the appeals court, finding that the plaintiff was not in the course of her employment while riding on the elevator and had not reported to her work station. The court concluded that she was still in an area of the hospital open to the public and used by patients, staff, and visitors alike. Thus, workers' compensation did not bar her tort claims.
Community Standards. To offer a successful defense in a premises liability case, the defendant must show the event was not foreseeable, that the organization acted reasonably and responsibly, and that the level of security met or exceeded community standards.
Documentation of the ongoing protective activities of the security department prior to the event can contribute to a successful defense. Additionally, proactive documentation of community security standards in the geographical area or within the industry can go a long way toward convincing a jury that the security department and the employer were doing everything within reason to protect employees and guests.
While security professionals regularly confirm that their facilities meet or exceed community standards, this conclusion is often arrived at informally, sometimes even instinctively. Since such an approach is unlikely to stand up in court, it makes sense to consider a more accountable program.
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Producing a file in court with records showing periodic comparisons of countermeasures at comparable neighborhood facilities has a much greater effect on jurors than an expert's
testimony concluding that the facility met community standards. It shows the company was actively trying its best to maintain a safe workplace on an ongoing basis.
For example, I recently developed a survey for trucking terminals that enables companies to look at the security measures taken by like businesses in the area (a generic version of the survey is available on Security Management Online). Since trucking terminals are often clustered in the same geographic area, surveying their practices is relatively easy. If the survey shows that the company's security is deficient--for example, if similarly situated competitors use fences, guard dogs, and armed guards and the company conducting, the survey does not--that company's security should clearly be brought up to par.
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