Employer not always liable for worker's violent acts
Published 04/29/05

The New Hampshire Supreme Court decided on May 15, 2002 in the case of Raymond E. Dupont, Administrator of the Estate of Raymond E. Dupont v. Aavid Thermal Technologies, Inc., that employers have no general duty to protect workers from criminal acts, yet such a duty may arise when the employer has unreasonably created a condition of employment that forseeably enhances their risk of criminal attack.

The Court found that liability should not be imposed upon an employer unless the conditions of employment are such that they invite attack upon workers by creating highly unusual and unreasonable exposure to danger without the employment of reasonably protective measures.

This case resulted from the tragedy that occurred on January 21, 1998 when Robert Hilliard shot and killed the decedent Raymond E. Dupont, Jr. in the parking lot of Aavid Thermal Technologies, Inc.'s Laconia facility. After shooting Dupont, Hilliard shot and killed himself.

In this case, the Estate alleged that the supervisors knew that Hilliard was armed and agitated and thus they allegedly knew that Dupont was in a position of imminent danger of serious harm. The Estate further alleged that the supervisors failed to take reasonable measures to prevent the attack they suspected would occur, and there was a prior history of similar incidents of potential violence in the workplace and workers bringing weapons to work.

The Court found the Estate had alleged enough to, if proven true, establish that Aavid owed Dupont a duty to protect him from Hilliard's attack. The Court noted, however, in its decision that it was not addressing whether the Estate would be able to prove causation at trial.

In other words, an important issue in that case would obviously be whether Dupont's life could have been saved if the supervisors took certain other actions. Furthermore, the Court did not address whether or not this entire negligence theory would be barred by worker's compensation law which generally provides an exclusive remedy for work related injuries.

Obviously the vast majority of employers are deeply concerned about protecting their workers from workplace violence.

It is prudent for employers to consult with their employment attorney as to ways to lessen the chance of workplace violence, including taking prompt corrective action against workers making threats or committing any physical violent act and banning certain weapons, such as guns, from the workplace even if the worker is duly licensed to carry a firearm.

Working through these issues with your employment attorney, while not eliminating the risk of workplace violence, could substantially reduce its likelihood.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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