Metropolitan News-Enterprise


Monday, February 2, 2009


Page 1


Court of Appeal Upholds Judgment for Assaulted Worker


By STEVEN M. ELLIS, Staff Writer


California’s exclusive workers’ compensation remedy did not preclude a North Hollywood film laboratory employee’s negligent retention and assault claims over a beating by his coworker, this district’s Court of Appeal has ruled.

Rejecting an attempt by Technicolor Entertainment Services to throw out a $1 million jury verdict in the employee’s favor, Div. Three held Thursday in an unpublished opinion that the man’s beating outside his house after the pair had both been sent home from work did not arise out of and occur in the course of his employment.

Harry Streng attacked his former boss, Eugene Duffy, in the early morning hours of Aug. 18, 2004, tackling Duffy into his car and punching and kicking him after a supervisor dismissed them both for the day following an altercation involving Streng’s suspension for sleeping on the job two-and-a-half weeks earlier.

The pair worked as viewing inspectors on the graveyard shift, watching motion picture films for defects caused by processing machinery, and Streng blamed Duffy for the suspension because Duffy—while on the phone with a client angered by delays—relayed Streng’s statement upon arriving back 30 minutes late from his lunch break that he had fallen asleep in his car.

Suspended for three days without pay, Streng became irate, according to testimony, while passing Duffy at work one week before the attack, yelling and threatening “I’m going to get you.”

Streng requested and received a transfer out of Duffy’s department, but in the early morning hours one week later the two encountered one another in a courtyard outside their office, where Duffy said Streng renewed his threats, letting out a tirade of profanity and warning “you better watch out, because I know where you live.”

Faced with conflicting stories over the incident, the plant supervisor sent both men home, holding Streng until security indicated Duffy’s car had left. However, Duffy stopped for food on the way, and Streng was waiting when he arrived.

Duffy brought claims for assault and battery against Technicolor and Streng, who received one year in jail as a condition of probation for the attack. Duffy also alleged negligent retention and supervision by Technicolor based on Streng’s prior violent acts toward other employees, and intentional infliction of emotional distress.

At the close of Duffy’s case against Technicolor, Los Angeles Superior Court Judge Rolf Treu granted the defense’s motion for nonsuit on Duffy’s claim the laboratory had ratified Streng’s assault and battery, and on the infliction of emotional distress claim.

But Treu rejected Technicolor’s assertion that Duffy’s injuries grew out of and were incidental to his employment, which would preempt the suit under the Worker’s Compensation Act, and left alive Duffy’s negligent retention claim and his claim based on Streng’s verbal assaults at work.

Technicolor appealed after a jury found for Duffy, but Justice Patti S. Kitching wrote that the act’s exclusive remedy did not apply to the negligent retention claim because the assault occurred while Duffy was at home, and while he was no longer performing work or any incidental service or activity for his employer.

Kitching similarly rebuffed Technicolor’s argument that Streng’s two verbal assaults arose out of Duffy’s employment, concluding that Duffy had established the “willful physical assault” necessary to allow him use an exception to the act to seek damages against his employer.

Noting Duffy’s testimony that Streng had seemed “out of control” on both occasions, and Duffy’s description of Streng’s threats, red face, flying spittle, profanity and hostility, the justice said there was sufficient evidence to show Streng had engaged in physical conduct a reasonable person would perceive to be a real, present and apparent threat of bodily harm.

On Duffy’s appeal, the panel upheld Treu’s ruling denying Duffy’s motion to amend his complaint to request punitive damages, which Duffy had only sought in connection with the dismissed infliction of emotional distress claim.

The justice reasoned that Duffy had delayed too long in making the request, and that allowing a plea for punitive damages would prejudice Technicolor, which had made tactical decisions believing them no longer an issue.

Justices H. Walter Croskey and Richard D. Aldrich joined Kitching in her opinion.

The appeal was argued by John P. Dwyer of Dwyer & Biggs for Duffy and by Lillie Hsu of Greines, Martin, Stein & Richland for Technicolor Entertainment.

The case is Duffy v. Technicolor Entertainment Services, Inc., B196126.


Copyright 2009, Metropolitan News Company