C.A. Affirms Award to Victim of Mock Robbery

Thursday, November 17, 2016

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C.A. Affirms Award to Victim of Mock Robbery

Bank Teller Was ‘Held-Up’ in Exercise Staged by Coworkers; Panel Says Jury Instructions on Workers’ Compensation Exceptions Were Correct

By KENNETH OFGANG, Staff Writer

A Kern Superior Court judge correctly instructed jurors on exceptions to the workers’ compensation exclusivity rule in a suit brought by a public employee whose coworkers staged a mock robbery without telling her it was a mere training exercise, the Fifth District Court of Appeal has ruled.

The panel Tuesday certified for publication its Oct. 24 opinion overturning Judge Lorna H. Brumfield’s order granting a new trial to the West Kern Water District and four of its employees. Justice M. Bruce Smith said Brumfield’s instructions, based on CACI Nos. 2800 and 2801 and Labor Code §§3600 to 3602, were correct, and the judge’s post-verdict conclusion that she should not have given them was erroneous.

The lawsuit, resulting in a $360,000 jury verdict for plaintiff Kathy Lee, stemmed from a 2011 incident. Lee was at the front counter of the district’s Taft headquarters, performing her usual duties as a cashier, when a masked man entered the office in disguise, approached her, put a paper bag on which “I have a gun[.] Put your money in the bag” was written in capital letters.”

Threatening Gestures

Lee testified that she feared for her life, and complied as the man made threatening gestures. Not until after he ran out the door with the bag of money was she told that the robbery was simulated, and that the man in disguise was actually Gary Hamilton, the district’s quality control manager.

Lee said she was so frightened she needed to seek psychological help and to take an extended absence from work. She sued the district, Hamilton, and three other employees whom she discovered were involved in the exercise.

One of the defendants was the district’s general manager, who said he originated the idea of testing the cashiers to see if they knew how to operate the alarm buttons that the district had placed at each window. His intent was to make sure the employees knew how to handle an actual robbery, but he did not intend that they believe they were actually being robbed, and delegated the planning to a lower-level official, he said.

One of the defendants testified that he had notified the local police in advance of the exercise. But the city’s police chief, who had been a lieutenant at the time, testified on behalf of the plaintiff that he responded on the basis of a robbery-in-progress call, that it was not until he was on his way to the site that he got a second call from the dispatcher saying it might not actually be a robbery, that he did not learn for certain that it was a drill until he got there.

He also opined that the whole exercise was dangerous, because someone could have had a heart attack, or fallen and been injured in a panic, or shot by an armed bystander or police officer who came upon the robbery and thought it was real.

Exception Explained

Brumfield instructed the jury that the plaintiff would be limited to a workers’ compensation remedy if the defendants proved that she was injured “while she was performing a task or related to the work the defendants hired her to do,” unless the assault exception applied. She then explained the exception, which applies when an employee is assaulted—subjected to conduct that could reasonably be perceived as threatening—by a coworker, with intentional harm that is a cause of the plaintiff’s damages.

The judge also gave an instruction based on Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701. Jurors were told that the plaintiff’s remedy was not limited to workers’ compensation “when the employer steps outside of its proper role or engages in conduct unrelated to the employment.”

Smith, in his opinion for the Court of Appeal, said the trial judge was wrong when she concluded, in granting the motion for new trial, that the plaintiff had conceded in her complaint that she was acting within the scope of employment at the time of the exercise. Under Fermino, the justice explained, it is possible for an employee to be at his or her place of work, performing his or her usual duties, and yet recover tort damages based on conduct of the employer, or attributable to the employer, that is outside the employer’s proper role.

Not Work-Related

The judge “stated the doctrine of Fermino correctly,” he wrote. “If the jury found that carrying out the mock robbery was not within the employer’s proper role, it could also find that unwittingly participating in the mock robbery as a victim was not part of the employee’s work.”

The justice went on to say that the judge did not err in allowing the police chief to give opinion testimony. The evidence, he said, was relevant to the question of whether the district’s conduct was so improper as to constitute an abandonment of its role as employer, and it was not an abuse of discretion for Brumfield to conclude that the chief’s long career in law enforcement qualified him to give his opinion on “whether the mock robbery whether the mock robbery was merely a training exercise that did not go well, as defense counsel described it his closing argument, or was instead so dangerous that it stepped outside the employer’s proper role.”

Attorneys on appeal in Lee v. West Kern Water District, 16 S.O.S. 5753, were R. Rex Parris, Alexander R. Wheeler, Kitty Szeto and John M. Bickford of the R. Rex Parris Law Firm, and Stephen M. Dake and Craig M. Braun of Dake, Braun & Monje, for the plaintiff and Arnold J. Anchordoquy, John R. Szewczyk, and Nicholas J. Street of Clifford & Brown for the defendants.