Opinion
No. 106,921.
2012-10-5
Catina Renee BERNAL a/k/a Judith Muller, Appellant, v. Ignacio RUBIO and GN Hospitality, LLC, Appellees.
Appeal from Seward District Court; Kim R. Schroeder, Judge. Razmi Tahirkheli, of Koehn & Tahirkheli Law Firm, LLC, of Liberal, for appellant. Craig Kennedy, of Kennedy, Dahl & Willis, of Wichita, for appellee GN Hospitality, LLC.
Appeal from Seward District Court; Kim R. Schroeder, Judge.
Razmi Tahirkheli, of Koehn & Tahirkheli Law Firm, LLC, of Liberal, for appellant. Craig Kennedy, of Kennedy, Dahl & Willis, of Wichita, for appellee GN Hospitality, LLC.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Plaintiff Catina Renee Bernal appeals from a ruling of the Seward County District Court dismissing her suit against Defendant GN Hospitality, her former employer, for injuries she suffered when another employee attacked her in the workplace. The district court ruled that Bernal's exclusive remedy lay in a workers compensation claim and the statutory workers compensation scheme barred her tort action. We agree and affirm the judgment for GN Hospitality.
The material facts may be stated succinctly. Because of the procedural posture of the case, we present the facts favorably to Bernal and note a few discrepancies. Bernal worked as a housekeeper at a Days Inn motel in Liberal that GN Hospitality owned and operated. On March 1, 2009, Ignacio Rubio, a maintenance employee at the motel, told Bernal to leave the workplace and go home during her shift. Bernal refused. Rubio grabbed her hand and then choked her. Other employees interceded. There is no material dispute Rubio physically assaulted Bernal. She reported the incident to the police. Rubio was charged with misdemeanor battery and disorderly conduct. He entered into a diversion agreement that included an admission of facts sufficient to support the charges.
Bernal and Rubio did not know each other outside the workplace and had no personal grudges or animosity. Bernal alleged in her pleadings that Rubio's conduct on March 1 was within the scope and course of his employment. The incident took place at the motel, and both Rubio and Bernal were on the clock. But Rubio had no actual supervisory authority over her. From time to time, Bernal would tell Rubio about maintenance problems she saw while performing her housekeeping duties. It is unclear why Rubio attempted to order Bernal to go home that day. Nothing in the record suggests he was acting at the behest of anyone with managerial authority at the motel.
Rubio apparently could be loud and vulgar in the workplace and was verbally obnoxious around other employees, including Bernal, from time to time. On the day when Bernal and Rubio were both in the motel parking lot, he pushed a cart of some sort so it struck Bernal. She apparently was not injured. Jeff Granger, the manager of the Days Inn motel, testified in a deposition that he was unaware of the incident in the parking lot. Bernal did not report it directly to Granger. Bernal spoke Spanish, and Granger spoke English. They typically communicated to each other through bilingual motel employees. Bernal said she told one of those employees about her run-in with Rubio in the parking lot.
Granger testified he knew of no occasion on which Rubio assaulted anyone apart from the March 1 attack of Bernal. He said Rubio occasionally had typical workplace disagreements with fellow employees. But Granger did not consider those to be serious or any cause for concern. Bernal produced no evidence to the contrary.
Granger fired Bernal on March 1. He testified she had had problems with other employees and was not working out, although he provided no specifics. Granger retained Rubio as an employee.
In November 2009, Bernal sued Rubio and the putative owner of the motel. The pleadings went through several amendments. Bernal substituted GN Hospitality as the proper owner and alleged it was liable for Rubio's actions on a respondeat superior theory because he was acting in the scope and course of his employment. Bernal also alleged GN Hospitality to be directly liable to her because it negligently hired or retained Rubio knowing of his violent disposition. GN Hospitality and Rubio duly responded and denied liability.
GN Hospitality filed a motion for summary judgment based on Granger's lack of knowledge of Rubio's purported violent tendencies. Later, GN Hospitality filed a motion to dismiss on the pleadings on the ground that workers compensation provided Bernal's exclusive remedy. Bernal filed responses to those motions. The district court granted both of GN Hospitality's motions and, accordingly, entered judgment against Bernal. She dismissed Rubio as a defendant and has timely appealed.
In reviewing a summary judgment, we apply the same standard as the district court by reviewing the evidence in a light most favorable to the nonmoving party, here Bernal. The motion should be granted only if that review of the evidence shows the moving party, here GN Hospitality, to be entitled to judgment as a matter of law. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). When the district court dismisses a claim on the pleadings under K.S.A. 60–212(c), we determine whether the plaintiff could go forward on any legal theory, giving the circumstances outlined in the pleadings a broad construction. Rector v. Tatham, 287 Kan. 230, 232, 196 P.3d 364 (2008) (construing standard under K.S.A. 60–212(b)(6), which mirrors K.S.A. 60–212(c)); Dye v. WMC, Inc., 38 Kan.App.2d 655, Syl., 172 P.3d 49 (2007) (same), rev. denied 286 Kan. 1180 (2008).
In general terms, the Kansas Workers Compensation Act, K.S.A. 44–501 et seq. , allows employees to obtain compensation from their employers for injuries resulting from workplace “accidents” without regard to fault or liability, subject to certain exceptions. Workers compensation benefits are more limited than damages that can be recovered in common law tort actions, and the claims are processed in an administrative forum rather than tried to juries. To promote the public purposes of the Act, its coverage is broadly construed. K.S.A. 44–501(g); Jordan v. Pyle, Inc., 33 Kan.App.2d 258, 265, 101 P.3d 239 (2004), rev. denied 279 Kan. 1006 (2005).
If the Act applies, it supplies the exclusive remedy for the injured employee against the employer and any potentially responsible coworker. K.S.A. 44–501(b); Robinett v. The Haskell Co ., 270 Kan. 95, 97, 12 P.3d 411 (2000). The injured employee may not then bring a civil suit for damages against his or her employer or elect between a suit and a claim under the Act.
For workers compensation purposes, an accident is covered if the employee's injuries arise out of and in the course of his or her work. K.S.A. 44–501(a); Pyle, 33 Kan.App.2d at 266. The term “arising out of” requires merely that there be some causal connection between the injury and the conditions of employment. 33 Kan.App.2d at 266. And “ ‘in the course of” requires that the employee be “at work in the employer's service” when the injury occurs. 33 Kan.App.2d at 266. The Kansas appellate courts have recognized that an employee assaulted on the job by a coworker has a valid workers compensation claim, unless the attack grew out of a purely personal dispute. 33 Kan.App.2d 267–68; Springston v. IML Freight, Inc., 10 Kan.App.2d 501, Syl. ¶¶ 1–3, 704 P.2d 394,rev. denied 238 Kan. 878 (1985); see Harris v. Bethany Medical Center, 21 Kan.App.2d 804, 807–08, 909 P.2d 657 (1995). Even if a fight has its genesis in a personal dispute, an injured employee may recover if the employer were aware of the friction between the two workers and might anticipate an altercation. Pyle, 33 Kan.App.2d at 266.
The undisputed facts bring this case within the scope of the Workers Compensation Act. Both Rubio and Bernal were in the workplace and were generally performing their duties at the time of the assault. Although Rubio's conduct was deliberate, that doesn't make Bernal's injuries any less an accident within the meaning of the Act and relevant Kansas appellate authority. In the same vein, Rubio may not have been carrying out a specific order from a manager or supervisor in telling Bernal to leave work. But he was acting generally within his employment. Bernal alleged as much in her pleadings. Nothing in the record suggests Rubio was prompted to strike Bernal as the result of some personal dispute between them. To the contrary, all of the evidence supports the opposite conclusion.
Because Bernal's injuries arose from an accident covered under workers compensation, Bernal cannot bring a separate tort action to recover damages. She is bound by the exclusivity provision of the Act and is left with a claim under the Act as her sole remedy.
The result is no different here because we have an employer interposing the exclusivity rule as a bar to an injured employee's tort action, rather than an injured employee seeking the protections of the Act. The exclusivity rule, as written in K.S.A. 44–501(b), is plain and unambiguous in precluding any other remedies when the Act applies. The Supreme Court recognized workers compensation exclusivity as a defense to an injured employee's tort action against the coworker responsible for causing the injuries. Rajala v. Doresky, 233 Kan. 440, Syl. ¶¶ 1, 2, 661 P.2d 1251 (1983). That rule necessarily and logically extends to an employer sued by an injured employee and would permit GN Hospitality's exclusivity defense.
Bernal's claims against GN Hospitality based on the purportedly negligent hiring or retention of Rubio fail to salvage her suit. Those claims rest on the direct liability of GN Hospitality for employing Rubio as opposed to vicarious liability for Rubio's wrongful actions. Estate of Belden v. Brown County, 46 Kan.App.2d 247, 282–83, 261 P.3d 943 (2011). But Bernal presented no evidence that GN Hospitality or its managers had any reason to know that Rubio possessed characteristics that would make him a threat to physically injure Bernal or any other motel employee before the March 1 attack. She, therefore, could not prove an essential element of those claims. 46 Kan.App.2d at 282–83. The district court properly entered summary judgment against Bernal on them.
Moreover, given the broad language of the exclusivity provision of the Act, those claims would be barred for that reason even if Bernal had offered evidence sufficient to otherwise avoid summary judgment. K.S.A. 44–501(b). That is, the district court also properly ruled that, as a matter of law, the exclusivity of the Act as a remedy precluded Bernal's negligent hiring and retention claims.
Affirmed.