A Wal-Mart loss prevention employee chased a shoplifter, and in the process, a co-worker was knocked over and killed. Is Wal-Mart liable for the employee’s death? How did employee training factor into this case?
The loss prevention employee, Sean Respass, was chasing a shoplifting suspect at a Wilson, NC, Wal-Mart. The suspect and Respass collided with Wal-Mart greeter Rochelle Pender, who was knocked to the floor and suffered a fatal head injury.
Pender’s estate filed a wrongful death lawsuit against Wal-Mart, Respass and the shoplifter. Wal-Mart and Respass asked for the case to be thrown out, and a state judge agreed. The estate took its case to the North Carolina Court of Appeals.
Normally, death benefits under state workers’ comp law would be the estate’s exclusive remedy. There are some limited exceptions, including if an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees.
Pender’s estate argued that employer misconduct existed because:
- Wal-Mart had a goal for loss prevention workers to catch eight shoplifters a month, and
- Respass violated Wal-Mart’s no-chase police regarding shoplifters.
Was this an egregious case?
Respass testified that all loss prevention employees were expected to reach a quota of eight apprehensions per month. The policy wasn’t in writing. Respass says it was communicated to him verbally.
Pender’s estate argued that the quota created an “incentive for Respass to engage in conduct that was substantially certain to cause serious injury or death.”
But the appeals court didn’t buy that argument. The exception to workers’ comp’s exclusive remedy provision is only applied in the most egregious cases of employer misconduct. The court noted Wal-Mart instituted its no-chase policy regarding shoplifters to protect the safety of its employees and customers. Wal-Mart fired Respass for violating that policy. Also, there was no record of injuries resulting from the monthly quota.
For that reason, the court said there was no evidence of misconduct by Wal-Mart.
The court also ruled that Respass’ decision to chase the alleged shoplifter also didn’t rise to the level of willful, wanton or reckless behavior.
The appeals court affirmed the lower court’s decision and threw out the lawsuits against Wal-Mart and Respass. It allowed a potential wrongful death lawsuit against the alleged shoplifter to go forward.
(Estate of Rochelle Pender v. Respass, Wal-Mart, NC Court of Appeals, No. 11-CVS-1144, 2/5/13)
Benefit of written safety policy
While the quota policy wasn’t in writing, Wal-Mart’s no-chase policy was. It said all loss prevention employees must never:
- chase a shoplifter more than ten feet, and
- engage in a physical confrontation with a customer or shoplifter.
The purpose of the policy was to ensure the safety of all people, employees and customers, on Wal-Mart’s property.
This written policy, and the fact that Wal-Mart followed through on it by firing Respass, was key in the appeals court’s decision to throw out the wrongful death lawsuit against the retailer.
Of course, having your safety policies in writing is an automatic benefit for training your employees on how to work safely.
But it also has another legal benefit besides the one in this workers’ comp case.
What happens if you’ve provided repeated safety training to your employees, yet a worker violates safety rules which leads to an OSHA investigation?
Companies can argue this is a case of unpreventable employee misconduct.
In one recent case, Otis Elevator was able to get an OSHA fine thrown out by the Occupational Safety and Health Review Commission.
A mechanic and apprentice were repairing an elevator. The mechanic told the apprentice to wait on the elevator’s roof until a replacement part arrived.
At some point, the apprentice climbed onto a railing on top of the car and looked into the shaft of an adjoining elevator. At that moment, an elevator car descended and struck the apprentice in the head, killing him.
OSHA issued one General Duty Clause violation. But on appeal, an Occupational Safety and Health Review Commission decision said there was nothing more Otis Elevator could have done to prevent the fatality. The commission threw out the OSHA citation.