The Lawletter Vol 35 No 3, February 11, 2011
May an employee pursue common-law tort claims against an employer and a coemployee for conduct that occurs during the termination process? The Nevada Supreme Court recently addressed this issue in Fanders v. Riverside Resort & Casino, Inc., No. 51225, 2010 WL 5422506 (Nev. Dec. 30, 2010). The plaintiff in Fanders was a guest room attendant at a casino, whose job was to clean hotel rooms. When she was accused by a coworker of improper conduct, she became angry and quit her job. Before she could leave the premises, security guards approached her and attempted to photograph her. She resisted by hiding under a table, and the guards allegedly grabbed her by the hair, pulled her from under the table, and called her by a derogatory name. She sued the casino and the guards individually, presenting claims for assault and battery, vicarious liability, wrongful imprisonment, negligence, and punitive damages. The trial court granted summary judgment for the defendants, ruling that the plaintiff's exclusive remedy was under Nevada's Industrial Insurance Act ("NIIA").
In considering the claim against the casino, the Fanders court adopted the reasoning of a Texas court and concluded that "when an injury is the result of an inherent hazard of the employment or occurs in the course of conducting the termination, workers' compensation may apply to injuries sustained after the employment relationship is terminated." Id. at *3. The court ruled that summary judgment had been improperly granted because there were issues of fact as to whether the employment relationship had actually been severed when the plaintiff was injured.
The court viewed the issue of the guards' liability as being one of first impression. Extending its reasoning from an earlier decision, Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005), the court held that when a plaintiff states a viable intentional tort claim against a coemployee, that claim is not barred by the NIIA's exclusivity provisions. The court reasoned that intentional torts do not constitute an "accident," which is defined by the NIIA as "an unexpected or unforeseen event happening suddenly and violently." 2010 WL 5422506, at * 4. Employers, coemployees, and terminated employees should take note of potential tort liability that may arise during the termination process.