Assault by Nebraska Employee Against Sex Offender Co-Employee Did Not Arise from the Employment

Where an employee (“Bates”) assaulted a co-employee (“McDaniel”) after Bates performed an Internet search and discovered that McDaniel was a registered sex offender, the assault did not arise out of and in the course of the employment in spite of the fact that the only contact the two had with each other was on the basis of their employment, held a Nebraska appellate court yesterday in McDaniel v. Western Sugar Coop., 2015 Neb. App. LEXIS 121 (July 14, 2015). Accordingly, McDaniel’s claim for workers’ compensation benefits for injuries to his nose, clavicle, and left shoulder was appropriately denied, held the Nebraska appellate court. Quoting Larson’s Workers’ Compensation Law, the court stressed that when the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault did not arise out of the employment under any test.

Following Bates’ Internet search, he approached McDaniel and called him a “chimo” (short for child molester) and began to assault McDaniel with a brass hammer. The employer had a zero-tolerance policy relating to workplace violence and fired Bates’ immediately. McDaniel and Bates lived some three blocks apart in a small town, but did not know each other outside of the employment. On one occasion, McDaniel and his wife gave Bates a ride home from work. The men had never exchanged angry words and had not had any prior altercations.

The court indicated that the sole issue was whether the assault arose out of his employment. In order to arise out of the employment, the employment must somehow exacerbate the animosity or dispute or facilitate an assault which would not otherwise be made. The court acknowledged that McDaniel and Bates had no relationship outside of their employment, but stressed that there was no evidence of any employment dispute between McDaniel and Bates or any animosity over work performance. Although the sole relationship between the men was as coworkers, the motivation for the assault was Bates’ personal feelings after discovering that McDaniel was a sex offender. Because the cause of the assault was wholly disconnected from the employer’s business and the employment of McDaniel and Bates, there was certain evidence in the record to support the trial court’s factual findings that the assault did not arise out of the employment.

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