US: Office Worker’s Tort Action Against Dentist Employer Alleging Sexual Assault Not Barred by Exclusivity

In Painter v. Atwood, 2012 U.S. Dist. LEXIS 176655 (D. Nev., Dec. 12, 2012), a federal district court from Nevada recently held, in relevant part, that a civil action filed by an female employee of a dental practice alleging intentional infliction of emotional distress (“IIED”), battery, false imprisonment, and constructive discharge against the male dentist who owned and managed the practice was not barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act (“NIAA”), the state’s workers’ compensation law.

Plaintiff’s duties included assisting the defendant with dental procedures in addition to office and clerical work. She occasionally performed these duties in the evenings. She alleged that after a few months of employment the dentist began to initiate conversations focusing on her dating life and, according to plaintiff, the dentist’s actions and comments became increasingly more sexual and aggressive. Plaintiff alleged that the defendant requested that she accompany him to the office to work on a patient one evening, that the patient did not show, and that the defendant, with no one else in the building, attempted to either rape or sexually assault her. The defendant proffered the exclusive remedy defense, among others.

The court acknowledged that in Wood v. Safeway, Inc., 121 P.3d 1026 (Nev. 2005), the Nevada Supreme Court held that claims originating from an alleged sexual assault could be preempted by the NIIA if the nature of the employment contributed to or otherwise increased the risk of assault beyond that of the general public. Such an assault was not within the NIIA, however, when the animosity or dispute which culminated in the assault was imported into the place of employment from the injured employee’s private or domestic life, or at least where the animosity was not exacerbated by the employment. The court observed that in Wood, the victim was specially vulnerable because of her working conditions. Here, all of plaintiff’s claims were for intentional torts of the owner of a business, not negligence claims based on an another employee who could take advantage of a victim because of the unique opportunities for predatory behavior based on the victim’s and assailant’s working conditions.

The court indicated that at this stage, it could not say that the alleged incident occurred solely based on a work relationship and not based on their outside of work relationship. Plaintiff babysat defendant’s children on multiple occasions, plaintiff’s parents lived down the street from defendant, so they knew each other prior to her beginning her employment, and plaintiff and defendant knew each other through interactions at their church. Defendant’s motion to dismiss was accordingly denied.

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