All of us have heard stories in the news about workplace violence and employees killed on the job. In large cities, it may seem like a weekly occurrence. Indeed, over the last several years, the United States has averaged about 600 workplace fatalities per year as a result of violence. Approximately 18% of all violent crimes take place in the workplace. What is your responsibility as an employer?

Generally, a private individual has no duty to protect others from violence by third parties. However, there are several exceptions to this general rule that frequently apply to employers.

For example, courts have held employers liable for injuries resulting from assault by a third person in a number of cases where the employer had knowledge of a particular danger and failed to warn an employee. To be sure, a case in California notes that a carpenter was shot by persons on property adjoining the property upon which he was working. The employer was aware that the adjacent property owners had loaded firearms, had erected a fence to block people from entering the property to which the carpenter was sent, and had warned that they intended to defend the fence by the use of force. The employer’s failure to warn the carpenter made the employer liable.

A similar judgment was reached in a case where an employer had knowledge of a particularly volatile situation between two of its employees, was aware of serious threats made by one of the employees against the other, and was also aware of the threatening employee’s violent and unstable personality. The failure of the employer to take steps to warn the employee, and to keep the employees separated, lead a jury to find the employer liable.

In cases such as these, the issue is always whether the danger posed to an employee was foreseeable by the employer. If the danger is not reasonably foreseeable, then the employer should not be held liable. Additionally, the knowledge generally has to be specific.

For example, the fact an employee is sent to work in a neighborhood that is known to be dangerous is probably, in and of itself, not sufficient to give rise to foreseeable danger.

After reading this, you may decide that ignorance is bliss and follow the example of Sgt. Schultz from “Hogan’s Heroes” (“I see nothing! I hear nothing!”) However, many states have adopted statutes that require an employer to provide a safe workplace. Under some of these statutes, an employer has an affirmative duty to be sure that the workplace is safe. Thus, ignorance offers no protection.

Hopefully, you’ll never have to deal with a workplace violence issue. However, remember the importance of foreseeability. If you have an employee that appears to have a violent temper, consider the risks associated with keeping that employee in your company. If there are neighborhoods in your service area that are unsafe, consider whether the business is worth the risk to your employees. Exercising a little caution will keep both you and your employees out of harm’s way.

Michael P. Coyne is a founding partner of the law firm, Waldheger Coyne, located in Cleveland, Ohio. For more information on the firm, visit www.healthlaw.com or call 440-835-0600.

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