Employer Liability for Third Party Physical Attacks on Employees

By Timothy W. Bubenik - McMahon Berger, PC.

May 10, 2018

In Wieland v. Owner-Operator Services, Inc., 540 S.W.3d 845, 847 (Mo. 2018), reh’g denied (Apr. 3, 2018), the Missouri Supreme Court heard a case worthy of its own movie of the week.  Amie Wieland was being stalked by her ex-boyfriend Alan Lovelace.  Fearing for her safety, she advised her employer, Owner-Operator Services, who disseminated a picture and description of Lovelace and apprised their safety team of the situation.  Owner-Operator’s efforts to protect her were unsuccessful, however, as one night while she was leaving work, Wieland came upon Lovelace who was hiding in her vehicle in the employee parking lot.  Lovelace shot Wieland in the back of the head.

For Weiland, this story has a happy ending as she survived the attack.  For her employer, however, the story took an unexpected turn. Wieland sued her employer for negligence for failing to prevent Lovelace’s attack and a jury awarded her $3,250,000 in damages.

In its Opinion upholding the verdict, the Missouri Supreme Court analyzed exceptions to the general rule that no duty to protect an individual from the criminal acts of a third party exists.  Specifically, the Court considered the duty to police premises that arises when an individual or business “knows or has reason to know” that the criminal acts of a third party may occur.  This is different from a “could” or “should” know standard as it actually alleviates any pre-emptive duty on a business to discover potential dangers to their employees.  However, the Court did find that once a business is made aware of a potential danger, it must take actions to prevent it.

In this case, the employer clearly was aware of the potential danger Lovelace presented.  Wieland explained the situation to the director of human resources and even advised her that she felt scared and threatened.  Weiland gave a description and photograph of Lovelace to the HR Director, who in turn gave this information to the supervisor of the front desk receptionists to disseminate. The employer failed to follow its own internal protocols, however, which called for employees in Wieland’s position to be allowed to use visitor parking and/or receive escorts to their cars.  In addition, there was evidence that security cameras in place surveilling the parking lot were not actively monitored.

What does this mean for employers?  Fortunately, the Missouri Supreme Court firmly recognized that only narrow exceptions exist to the doctrine that there is no duty to protect employees from third parties and such a duty does not attach unless and until something occurs that should alert an employer of potential danger.  Once the duty does attach, however, an employer must take sufficient steps to prevent harm to their employees at the workplace.

Therefore, employers should take serious any potential threats from third parties they are made aware of and exert reasonable efforts to prevent possible harm, including following their own policies established to address and prevent this type of tragedy.  Consulting with counsel at the time a threat is identified can help an employer to ensure that appropriate action is taken to prevent legal liability.  After all, no one wants to end up the villain in a cable television movie.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.