Assault by employee bad enough for IIED?

I work in a bar and had to cut off an off-duty security employee from drinking. He was under the obvious influence of narcotics and his liquor consumption was high enough to put his BAC above .10

Upon being cutoff he approached me in a threatening manner and repeatedly called me a "bitch" to try and provoke a response. He is telling other coworkers that he is going to "get me". He is also involved in criminal activities at the club.

We are owned by a corporation with decently deep pockets and I have informed the owner of the incident. I also previously warned the owner about this employees illegal activities and violent behaviour.

I am scared enough about retaliation that I carry a gun at all times and have stopped going to work when this employee is present. Would this treatment be considered IIED?

1 answer  |  asked Mar 12, 2005 05:02 AM [EST]  |  applies to Arizona

Answers (1)

Francis Fanning
Patron's conduct is not employer's conduct

Your question is whether the patron's offensive conduct you described reaches the level of intentional infliction of emotional distress. Before answering this question, I have to point out that your employer is not vicariously liable for a patron's conduct. While your employer may have a duty to protect you from abuse by patrons, that does not make your employer responsible for unforeseeable conduct that the patron may engage in. If the employer negligently fails to protect you from his conduct and you are injured as a result, the claim would probably be preempted by worker compensation. For a discussion of this, see Ford v. Revlon, a case in which an employer's callous disregard for an employee's repeated complaints of sexual harassment led to liability for IIED.
If you wanted to sue the patron himself, you could possibly pursue a claim of assault. A civil claim for assault requires proof of an unwelcome threat of physical harm. One of the problems with the case is that reasonable people might not all agree that the statements he made could be taken as a serious threat if he was intoxicated at the time. But proving assault is much easier than proving IIED, which requires outrageous conduct intended to cause severe emotional distress.
The fact that the patron has been engaging in illegal conduct is not really relevant unless your employer fires you in retaliation for reporting it.

posted by Francis Fanning  |  Mar 14, 2005 1:14 PM [EST]

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