Can victims of workplace shootings sue their employers?

A month after the mass shooting at a Chesapeake Walmart that took the lives of six people last November, Briana Tyler became the third victim and former employee to sue the company for negligence and damages.

Now, that suit – and presumably any others in the case – depend on whether attorneys for the victims can convince a judge that the shooting wasn’t just a workplace accident and therefore covered by the state’s workers’ compensation system.

Easier said than done in the Old Dominion state.

The Virginia Workers’ Compensation Act provides a path for people who are injured in the workplace to receive payment for medical bills and lost wages.

“The benefit that the injured workers get out of workers’ compensation is, if they’re injured on the job, they recover, period,” said Dr. Louis Hensler, law school professor at Regent University. “They don’t have to prove whose fault it was, they don’t have to prove they weren’t at fault, they don’t have to establish legal liability in any way except that it’s a covered injury … so that’s what plaintiffs get out of the bargain.”

The defense, or employer, in these cases has to pay something out (which they’re usually insured for), but it’s virtually never as high as the amount they would under a tort claim lawsuit – a civil suit for damages.

“And so, you have this weird dynamic going on in the workers’ compensation litigation that, depending upon the precise nature and cause of the case, one side or the other will be arguing this is covered by workers’ compensation or it isn’t covered,” Hensler said.

Worker’s compensation claims bar the employees from suing their employers for their injuries directly, meaning they can’t be paid out for more abstract costs like pain and suffering, or the long-term effects of mental trauma.

The central issue that these cases hinge on is how injuries related to shootings are categorized.

If they’re considered “workplace accidents,” then they’re covered under workers’ compensation. If they were intentional injuries that occurred in the workplace but had nothing to do with it, then they may be considered legitimate tort claims.

The same rules apply to the lawsuit filed against Newport News Public Schools after a six-year-old student shot teacher Abby Zwerner.

“Both of these would qualify as intentional injuries. And in many jurisdictions that would allow the employee to jump outside of the workers’ compensation system and file a lawsuit to recover for these injuries,” UVA law professor Dr. “Rip” Verkerke told 10 On Your Side. “Virginia is unusual for having a very stringent understanding of injury by accident that incorporates even shootings and intentional assaults in the workplace.”

That means that even though these shootings weren’t “accidents” as we commonly understand the term, they may legally be considered accidents (in the workplace) under Virginia law.

“The problem there is that you might think accident means ‘oops I made a mistake’ and there is, in fact, an exception in most workers’ compensation statutes around the country for intentional injuries,” Verkerke said.

But not in Virginia.

It is one of a small number of states that doesn’t recognize an intentional injury exception.

The victims in these cases have a chance at arguing for an exception under a small set of circumstances. Those may include taking into consideration the motivations of the shooters.

“It definitely happened on the job, it definitely happened at the workplace, it definitely was done by a fellow employee,” Hensler said of the Walmart tragedy. “So the way the analysis usually ends up coming down is, if the shooting was essentially motivated by things that have nothing to do with the job, it’s not going to be considered a workplace injury.”

Tyler’s case was all but thrown out in court last week because the judge said there wasn’t enough evidence to determine that it wasn’t a workplace-related incident. He gave her legal team 30 days to file a new lawsuit.

“What they would want to try to show is something like ‘[Andre Bing] didn’t like her because of her politics,’ for example. That would have nothing to do with the job – or because of her religion,” Hensler said.

Neither Verkerke nor Hensler were optimistic about the chances of either case.

“This student and Abby Zwerner, they had one relationship and it’s the classroom,” Hensler said. “The Walmart situation – I can imagine partially because it’s an adult doing the shooting, I can imagine him having more outside and unrelated motivations that might not be covered by workers’ comp.

“On the other hand, I think one way the Abby Zwerner case is a little better for the plaintiff … is it was really a ‘customer’ of the business who was doing the shooting whereas in Walmart it was definitely a fellow employee.”

Said Verkerke: “As a legal analyst, I think my prediction would be that the Virginia courts are likely to find that they’re covered by workers’ compensation and that the exclusive remedy prevision bars a tort suit.”