Disability Law

Employer Immune From Tort Liability for Employee's On-The-Job Sexual Assault by Co-Employee

By David A. McCranie, Esq.

In Doe v. Footstar Corp., the Second DCA affirmed the trial court's judgment on the pleadings in favor of the employer and concluded that the employee's civil action against it was barred by the "exclusive remedy" provision of §440.11.  The employee (a minor, who brought the action through her parents) alleged in her complaint that Cooper, a co-employee, had assaulted and sexually battered her in the course of his employment with Footstar and that Footstar had negligently hired, retained, supervised, and trained Cooper.

The court had strongly hinted that it would reach this result when it considered this same case earlier.  In this opinion from 2006, the court concluded that it lacked jurisdiction to consider Footstar's appeal at that time under Fla.R.App.P. 9.130(a)(3)(C)(v).  That rule provides appellate courts jurisdiction over orders determining that, "as a matter of law, a party is not entitled to workers' compensation immunity."  The court concluded that the trial court had merely denied Footstar's motion for summary judgment, that the order did not state, as a matter of law, that Footstar was not entitled to workers' compensation immunity, and that it did not enter judgment against Footstar on the issue of workers' compensation immunity.

Still, it seems to me that the court is assuming that the employee in this case has a workers' compensation remedy.  Depending upon the particular facts of the case, she might not.  See Liberty Correctional Institute v. Yon, 671 So.2d 194 (Fla. 1st DCA 1996).  In that case, the First DCA held that the employee, the victim of sexual harassment, sexual touching, and at least one episode of sexual intercourse by a co-employee had not suffered any physical injury, and therefore her psychological injuries were barred by §440.02(1), Fla. Stat. (1985)[now codified at §440.093, Fla. Stat.].

Full post as published by Florida Workers’ Compensation Law Blog on May 15, 2008 (boomark / email).