Grillo v. National Bank of Washington, 86-882.

CourtCourt of Appeals of Columbia District
Citation540 A.2d 743
Docket NumberNo. 86-882.,86-882.
PartiesAltagracia Kelly GRILLO and Antonio J. Grillo, Personal Representatives on behalf of the Estate of Zonya Grillo Durham and Durya Christina Durham, a minor by her co-guardians, Altagracia Kelly Grillo and Antonio J. Grillo, Appellants, v. NATIONAL BANK OF WASHINGTON and United Mine Workers of America, Appellees.
Decision Date31 March 1988

Gary I. Rubin, Washington, D.C., argued the case for appellants. Joseph L. Nellis, Washington, D.C., was on the brief for appellants.

David P. Durbin, with whom Conrad A. Fontaine and James F. Jordan, Washington, D.C., were on the brief, for appellee National Bank of Washington.

Joseph P. Dyer for appellee United Mine Workers of America.

Before PRYOR,* Chief Judge, and MACK and ROGERS, Associate Judges.

ROGERS, Associate Judge:

The question presented by this appeal is whether appellants have stated a cause of action under the intentional tort exception to the exclusive remedy provision of the District of Columbia Workers' Compensation Act ("WCA"). D.C.Code § 36-304 (1981). The appeal arises out of the dismissal of a complaint under Super. Ct.Civ.R. 12(b)(6) for the failure to state a claim for which relief can be granted. We hold that only injuries specifically intended by the employer to be inflicted on the particular employee who is injured fall outside of the exclusivity provisions of the WCA and that the evidence presented to show the employer's knowledge with substantial certainty that an injury will result from an act does not equate with the specific intent to injure or kill when the injury is caused by the intentional act of a third person. Accordingly, we affirm.1


On September 23, 1982, a robber entered the branch of the National Bank of Washington ("NBW") located at 7th & Pennsylvania Avenue, N.W. ("Washington branch"), brandished a gun, and ordered the tellers to gather the money from the cash drawers. He then walked over to the decedent, Zonya Grillo Durham, who was the teller nearest the front door, leaned over the counter, and shot her in the head. There were no safety glass enclosures in front of any of the counters in the bank. NBW had in effect throughout the relevant period a workers' compensation insurance policy with the Aetna Life and Casualty Company. In November of 1982, counsel for Durham's estate requested from Aetna "a complete and detailed breakdown of the funds available and to be made available to Durya [Christina] Durham," Durham's sole survivor. In addition, Antonio J. Grillo, who was subsequently named along with Altagracia Kelly Grillo as the personal representatives of Durham's estate, filed a notice of claim for death benefits with the Office of Workers' Compensation ("OWC" or "agency"). Pursuant to these actions, Aetna immediately paid the George Washington Hospital for some of Durham's medical expenses and the OWC recommended that Aetna pay $1,000 for funeral expenses and death benefits of $128.87 per week, to be paid bi-weekly and subject to later adjustment.2

The personal representatives (hereinafter "Grillo") filed the instant wrongful death action on August 10, 1983, on behalf of Durham's estate and her sole survivor. They alleged that NBW knew with substantial certainty that a previous removal of protective glass would lead to Durham's murder. NBW filed a motion to dismiss the complaint for failure to state any claim upon which relief can be granted, arguing that Grillo's sole remedy is under the WCA. The trial judge granted Grillo the right to proceed with discovery in order to support her factual allegations, and subsequently directed Grillo to proffer "all of the evidence upon which [she] intended to rely to establish that defendant NBW knew with `substantial certainty' that, by not replacing certain `shields' in front of tellers' booths, death or injury would result to a teller" while expressly reserving the question of the appropriate legal standard. Grillo filed this evidence along with a supplemental memorandum and statement of genuine issues in opposition to NBW's motion.

Stated most favorably to Grillo, the facts revealed by the discovery are as follows. Prior to 1969, NBW had glass teller enclosures in most of its branches, but not the Washington branch in which Durham was murdered. Armed guards were also stationed at most of NBW's branches. Glass partitions were erected in the Washington branch shortly thereafter, pursuant to a security plan. In 1969, the Bank Protection Act of 1968, 12 U.S.C. §§ 1881 et seq. (1976) ("BPA"), which set minimum security standards and authorized security regulations, went into effect. Under one of the regulations promulgated thereunder, 12 C.F.R. § 21.2 (1983), each bank was required to designate a "security officer" to implement a security program that would "equal or exceed the standards prescribed by this part."

In response, NBW acknowledged on May 23, 1969, that the BPA established standards "with respect to the installation, maintenance and operation of security devices and procedures, to discourage robberies, burglaries and larcenies, and to assist in the identification and apprehension of persons who commit such acts." A security program was adopted, including the appointment of a Security Officer and a Security Committee, and the delegation of general compliance responsibilities to branch managers. With respect to teller enclosures, the program stated that "the tellers' counters in fourteen of our offices have been heightened by the installation of glass partitions. This should provide a measure of protection by preventing robbers from vaulting over the counter and looting cash drawers in quick, hit and run type robberies. Glass partitions will be installed in our remaining offices as soon as possible." (Emphasis supplied). The Committee later issued a "Protective Committee Report," dated June 15, 1969, which stated that there were "high glass enclosures in 5 of our offices; 2 offices have the old-time high glass enclosures; 6 other offices are under contract for these enclosures and plans are being made for 4 more offices." The Report further stated that "`Burns' guards, some of which are armed, are in all of our offices. . . ." A follow-up report issued one month later stated that NBW had "installed high glass on the tellers' counters in 8 offices; 2 offices have the old-fashioned high glass left over from the days when all banks used it. In the next 3 weeks glass will be installed in 3 more offices. Plans have just been completed for 2 other offices and being made for 2 more." The Board of Directors approved this plan and did not later disavow the general desirability of safety glass. Glass partitions were not erected, however, in branches that have been opened or remodeled since that time.

The Washington branch underwent substantial remodeling between December, 1981, and March, 1982. As part of an overall architectural plan to make the inside of the building appear as it did in the nineteenth century, the protective glass was removed from the tellers' counters. A subsequent reaffirmation of the decision not to reinstall the safety glass was motivated at least in part by economic reasons,3 and by the belief that they were not effective in preventing robberies.4 According to the depositions of the governing officials of the Washington branch5 — the Manager and the Executive Vice-President — they were unaware of the provisions of the 1969 security program and they knew that several new branches had been opened without security glass. Indeed, the Senior Vice-President and Director of Human Resources stated that he was generally familiar with the contents of the document, but that he had never seen it.

There is little evidence in the record of management discussion of safety considerations during the planning of the renovation, nor of any consultation with the designated Security Officer. That officer stated repeatedly in his deposition that he was never consulted about the removal of safety barriers nor given the opportunity to make recommendations. He admitted, however, that he was shown an architect's rendition of the branch, and that he queried, "We are not going to have the plate glass partitions back up?" In the Security Officer's opinion, glass partitions "tend to make it harder for a robber to jump over the teller counter," but he was not asked his opinion on this matter even though he attended a meeting with the managers and the architect. In their depositions, the Manager and Vice-President indicated their reliance on the omission of the glass from the architect's plan.

Officers of the bank were aware of teller complaints and of official concern over the lack of safety glass. Safety glass had been consistently advanced as a valuable security option for several years and it was repeatedly requested by tellers in other branches as early as 1973, when a teller in the Northeast branch was shot and killed during a robbery. The Director of Human Resources and other officials, for example, received in March of 1982 a copy of a December 9, 1980, petition for safety glass from the tellers of the Main Office branch.6 Officials at the Washington branch were aware of the Main Office teller petition, and of several complaints by their own tellers, and studied the issue at that branch.7 In a meeting with several tellers, including Durham, the Manager told the tellers that the glass would not be reinstalled and that they could transfer to another branch if they so desired.

The Security Officer had also recommended in 1982 a series of measures, including the installation of bullet-proof glass, to compensate for a decision by the NBW President to disarm bank guards. The suggestion was considered by several officials, but the decision was held in abeyance pending further study. In a letter dated September 22, 1982, NBW was also informed of the favorable experiences of the National Bank of...

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