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Supervisors Stage Fake Robbery, (Shockingly) Get Sued by Victim

By Casey C. Sullivan, Esq. on November 16, 2016 | Last updated on March 21, 2019

Well, consider this one of the most obviously stupid things you've encountered recently. In 2011, four supervisors at the West Kern Water District decided to stage a mock robbery in their work place. Following a training on responding to robberies, the supervisors snuck out of the office, with one soon returning dressed in a ski mask, demanding the office's money, and claiming to have a gun.

Of course, the "mock" victim hadn't been informed of the scheme beforehand. To her, everything appeared very, very real.

Robbery Response Pop Quiz

No, we are not making this up. According to a lawsuit by Kathy Lee, a cashier at the district's office where people would often come to pay their water bills in cash, four supervisors came up with the "mock robbery" scheme in order to test how employees would respond to a real robbery. Those supervisors included the district's safety manager Sam Traffensted, accounting supervisor Ginny Miller, quality control manager Gary Hamilton, and general manager Harry Starke.

According to Lee's complaint, the four male supervisors concocted a pretext to leave the office, with Hamilton returning as a "robber," approaching Lee with a paper bag on which was written: "I HAVE A GUN PUT YOUR MONEY IN THE BAG"

Smart, right?

Afterwards, Lee was immediately shaken, crying, and nauseous, eventually requiring psychiatric treatment. She sued, alleging intentional infliction of emotional distress and assault, winning a jury trial and an award of $360,000.

Enough Stupidity, What About the Law?

Alright, so everyone on the robbing end of this scenario was an idiot. But what were the legal issues?

After the jury trial had ended, the trial court concluded that it issued erroneous instructions regarding the workers' compensation exclusivity rule and granted a new trial. Lee appealed, with the Fifth Appellate District Court of Appeal ruling in her favor.

Lee's trial was divided into two stages, the first addressing whether workers' comp was Lee's sole remedy and, if it was not, the second determining liability and damages.

California's Workers' Compensation Act provides the sole remedy for workplace injuries incurred when "performing a task for or related to the work" one was hired to do, with certain exceptions.

During their deliberations, the jury asked about the "the phrase 'performing a task.'" "Does that mean standing at her desk or her unknowing participation in the mock robbery?"

The court informed them that "The issue of whether or not the plaintiff was performing a task for or related to her work is up to you to decide."

"Conduct is related to work if it is reasonably related to the kinds of tasks that the employee is employed to perform or is reasonably foreseeable in light of the employer['s] business or the employee's responsibility," the instructions said.

The jury found that Lee was not performing a task for which the district hired her at the time of the robbery, meaning the case fell outside the Workers' Compensation Law.

Saved by the Fermino Rule

The trial court, however, granted the defendants' motion or a new trial, finding that the facts pleaded in Lee's complaint acknowledged that the workers' comp law applied, since she claimed her injuries fell under the law's assault exceptions and that she said she was "working the front counter" at the time of the robbery.

On appeal, the court rejected this reasoning. Under the Fermino rule, the listed exceptions to the Workers' Comp Act exclusivity provisions are not "an exhaustive list." "[A]ctions by employers that have no proper place in the employment relationship may not be made into a 'normal' part of the employment relationship merely by means of artful terminology," the California Supreme Court wrote. The key is whether the conduct is "within the compensation bargain."

Here, the court ruled, the Fermino rule saves Lee from the act's exclusivity provisions, whether she was doing her job or not. There was no error with the instructions the court found, concluding:

If the jury found that carrying out the mock robbery was not within the employer's proper role, it could also find that unwittingly participating in the mock robbery as a victim was not part of the employee's work. Lee's counsel urged the jury to make this finding. Evidently, judging by the jury's question, this is in fact what it found.

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