Hartman v. Retailers & Mfrs. Distribution Marking Serv., Inc.

• Decision Date: 08 March 2013
• Docket Number: Civil Action No. 7:12–cv–00199.
• Citation: 929 F.Supp.2d 581
• Court: U.S. District Court — Western District of Virginia
• Parties: Betty HARTMAN, Plaintiff, v. RETAILERS & MANUFACTURERS DISTRIBUTION MARKING SERVICE, INC., et al., Defendants.

929 F.Supp.2d 581

Betty HARTMAN, Plaintiff,

v.RETAILERS & MANUFACTURERS DISTRIBUTION MARKING SERVICE, INC., et al., Defendants.

Civil Action No. 7:12–cv–00199.

United States District Court,

W.D. Virginia,

Roanoke Division.

March 8, 2013.

Les S. Bowers, S. D. Roberts Moore, Gentry Locke Rakes & Moore, Terry Neill Grimes, Terry N. Grimes, Esq., P.C., Roanoke, VA, for Plaintiff.

Christopher W. Stevens, Woods Rogers PLC, Robert A. Ziogas, Glenn Feldmann Darby & Goodlatte, Roanoke, VA, David C. Pollack, Keith A. Markel, Morrison Cohen LLP, New York, NY, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief Judge.

This case is before the court on the defendants' motions to dismiss. For the reasons explained below, the court will deny in part and grant in part the motions filed by Cosmetic Essence, Inc. and Retailers & Manufacturers Distribution Marking Service, Inc., and will grant SunStates Security LLC's motion in its entirety.

I. Factual Background

This civil suit arises from a violent sexual assault that occurred in the parking lot outside the victim's and her attacker's shared place of employment. The plaintiff, Betty Hartman, was assaulted by Nathaniel Martin after leaving work one night. Each was employed by co-defendants Cosmetic Essence, Inc. (“CEI”) and Retailers & Manufacturers Distribution Marking Service, Inc. (“R & M”).

CEI owns a cosmetic manufacturing plant in Roanoke. CEI and R & M were parties to a labor agreement under which R & M provided staffing at the facility. The agreement required R & M to conduct background checks on all applicants before placing any employees at the facility. The agreement also provided that CEI and R & M shared the responsibility of ensuring that the facility provided safe working environment. In 2002, CEI entered into a security agreement with SunStates LLC (“SunStates”), whereby SunStates would provide security for the facility, including the parking lot. The plaintiff alleges that SunStates acted at the behest of R & M and CEI, and that those two companies had control over how SunStates carried out its security obligations.

CEI hired Martin on February 25, 2010, shortly after the plaintiff was hired. At the time, Martin was a registered sex offender, having been convicted of aggravated sexual battery of a child under the age of 13 in April of 2008. Neither CEI nor R & M conducted a background check on Martin prior to hiring him. The plaintiff alleges that the defendants had a practice of hiring sex offenders and other convicted criminals because they provided a source of cheap labor. The plaintiff also alleges that the defendants knew or should have known that there was a significant history of crime in the vicinity of the facility. Additionally, the plaintiff alleges that the parking lot was dimly lit and had poor visibility. The plaintiff states that these conditions created an ongoing risk of sexual assault at the facility that R & M and CEI knew or should have known about.

Prior to the incident giving rise to the suit, the plaintiff complained to her floor supervisor about Martin making vulgar comments and unwanted sexual advances to her. The supervisor told the plaintiff that he would take care of the problem, and he would try not to schedule the two to work together. The plaintiff states that she usually tried to have friends escort her out to her car after work because of concerns for her safety, particularly a fear of Martin.

During her shift on May 11, 2010, Martin assaulted and battered the plaintiff on multiple occasions by touching her leg, thigh, and groin area. After the plaintiff's shift ended that night, she waited until Martin clocked out and left the facility so she could avoid meeting him in the parking lot. After he left, she exited the building through a different door and proceeded to her car alone. As she approached her car, Martin pulled up alongside her and engaged in a violent, sexual assault that lasted fifteen minutes. The plaintiff repeatedly screamed for help in the middle of the parking lot, but no one came to her aid. Ms. Hartman alleges that SunStates was supposed to have at least three security officers on site at all times, and ordinarily had one stationed in the parking lot. Additionally, SunStates was expected to monitor the facility via closed circuit surveillance cameras. However, on the night of the incident, there were no guards in the parking lot, and no one came to offer help at any point during the fifteen minute assault.

The following day, the plaintiff called the police to report the assault, and Martin was arrested. He later pled guilty in Virginia state court to a charge of rape with an animate object. The plaintiff attempted to return to work a week after the incident but was forced to resign because of emotional distress resulting from the incident.

The plaintiff alleges five claims for relief: (1) assault and battery against R & M and CEI under a respondeat superior theory of liability; (2) negligent hiring against R & M and CEI for hiring Martin; (3) negligent retention of an unfit employee against R & M and CEI for failing to let Martin go after he exhibited threatening and improper behavior against the plaintiff; and (4) a general negligence claim against R & M and CEI for creating a dangerous work environment, and (5) a negligence claim against SunStates for failing to fulfill its security obligations on the night of the incident. The plaintiff also seeks punitive damages under each count.

II. DiscussionA. Counts One, Two, and Three

Each of the defendants has filed a separate motion to dismiss the complaint under the theory that the Virginia Worker's Compensation Act (“VWCA”) offers the exclusive remedy for the plaintiff.^* The VWCA provides, in part, that employees' sole remedy for injuries or death “by accident arising out of and in the course of the employment” shall exist under the worker's compensation scheme. Va. Code § 65.2–300. The parties agree that the incident in this case constitutes an “accident” that occurred “in the course of employment.” Where they disagree, however, and the sole question the court need address at this stage in the litigation, is whether the incident also falls under the “arising out of prong of” the statute. The defendants argue that it does and that the plaintiff's lawsuit is barred by the exclusivity provisions of the VWCA. The defendants claim, in effect, that the plaintiff has pled herself into the ambit of the VWCA by accusing the defendants of creating a dangerous work environment. In support, the defendants point to Va. Code § 65.2–301, which deals specifically with workplace sexual assaults. Section 65.2–301 provides that employees who are sexually assaulted in the course of their employment are deemed to have suffered an injury arising out of the employment when “the nature of [their] employment substantially increases the risk of such assault.” The defendants argue that the plaintiff herself has claimed that the nature of her employment, by way of the alleged negligence and wrongdoing of the defendants, increased the likelihood of a sexual assault. As a result, they contend that the plaintiff cannot proceed outside the VWCA. In contrast, the plaintiff asserts that the assault was of a purely personal nature that was completely unrelated to her employment, thus exempting her claim from the worker's compensation bar.

In their motions to dismiss, the defendants rely primarily on three cases: R & T Investments, Ltd. v. Johns, 228 Va. 249, 321 S.E.2d 287 (1984); Plummer v. Landmark Communications, Inc., 235 Va. 78, 366 S.E.2d 73 (1988); and Lynchburg Steam Bakery v. Garrett, 161 Va. 517, 171 S.E. 493 (1933). In R & T Investments, an employee was injured when dropping to the floor during the robbery of a bank where she had gone to deposit her employer's money. 228 Va. at 254, 321 S.E.2d 287. The Court found that because robbery is a risk associated with delivering money to a bank, the plaintiff's injuries arose out of her employment. Id. The Court held that the “claimant's regular presence in a branch bank, an environment that is more prone to the violence of robbery, exposed her to a special risk of assault.” The Court further explained that “[a]n accident arises out of the employment if there is a causal connection between the claimant's injury and the conditions under which the employer requires the work to be performed.” Id. at 252, 321 S.E.2d 287. “The requisite nexus in an assault case is applied if there is a showing that the probability of assault was augmented either because of the peculiar character of the claimant's job or because of the special liability to assault associated with the environment in which he must work.” Id. at 253–54, 321 S.E.2d 287 (quotation omitted).

In Plummer, a female newspaper delivery driver was assaulted as she waited in a parking lot to pick up her route's newspapers. She alleged that her employment regularly required her to wait in the dimly-lit and dangerous parking lot, increasing her risk of attack. The Supreme Court of Virginia held that the employee's injuries arose out of her employment because she had been forced to wait for an extended period of time at a site that the employer knew was dangerous, “particularly for women.” Id. at 86–87, 366 S.E.2d 73. The Court held that “the plaintiff alleges that the employer had notice of a dangerous condition and failed to protect the employee from such conditions.” Id. at 87, 366 S.E.2d 73.

Likewise, in Garrett, the Court found that an incident arose out of the plaintiff's employment when a trespasser entered a workplace and shot the employee in the eye. The employer had known of the trespasser's presence for some time, and the Court stated that “[s]o long as the [trespasser] remained upon the premises with the knowledge and acquiescence of the foreman, armed, as he was with a potentially dangerous instrumentality, the hazards of employment were increased.” Garrett, 161...