Active Shooter Drill Leads to Injuries for Neb. Worker, doesn’t Negate Exclusive Remedy Rules

Omaha, NE (WorkersCompensation.com) -- The topic of active shooter training can be emotionally and psychologically difficult for many workers, but what happens if an employee experiences an injury that during such a training and attempts to sue?

In Lopez v. Catholic Charities of the Archdiocese of Omaha, No. S-23-301 (Neb. 12/15/23), Nebraska's top court held that a worker couldn't bring a tort claim after experiencing what she thought was a real-life active shooter scenario and suffered physical and psychiatric injuries as a result.

Shots Fired (Apparently), Bloody Coworker Downed (Apparently)

A worker for a charitable organization took part in an active shooter drill the organization carried out as a training exercise. According to the worker, she had no advance notice that a drill was taking place. Instead, the worker alleged that she reacted in fear after hearing loud "bangs" on the door to her office suite and being urged by a superior to get out of her office.

As the worker was following others to the exits, the executive director told her a shooting was taking place. The worker then heard gunshots and saw a fellow employee lying outside on the ground, apparently dead or mortally wounded, with what appeared to be blood on her hand. The worker then ran away from the building toward a nearby shopping plaza. In the process, she jumped off a retaining wall and "jarred" her back upon landing.

Later, the worker learned from a superior that it was "all play acting" so that they could "see how people reacted."

According to the worker, she went to counseling the day after the drill and continued to seek treatment for fear and depression caused by the events of the day. Additionally, she alleged that she injured her back as a result of jumping off the retaining wall and that she received continuing treatment for the injury.

The worker brought a tort claim, alleging that the organization was liable for assault and intentional inflection of emotional distress. The trial court dismissed the claim, holding that Nebraska's Workers' Compensation Act provided the exclusive remedy for the worker's injuries.

The worker appealed to the Nebraska Supreme Court, arguing that individuals in leadership positions at the organization acted with specific intent to injure her.

Exclusivity Rules

Under Nebraska's exclusivity provision, courts have not recognized an intentional tort exception, and the court declined to adopt one in the worker's case.

"The purpose of the workers’ compensation statute was to do away with common-law remedies and defenses and to give compensation without regard to the employer's fault," the court explained.

Workers' Comp 101: Several states have adopted intentional tort exceptions to their exclusivity provisions. For example, South Dakota's legislature included a specific provision exempting intentional torts from their statutes that provide for workers' compensation exclusivity. Other states, like Indiana, have recognized an intentional tort exception through judge-made law where courts have decided that the exclusivity provision did not apply to intentional torts on the reasoning that intentional torts aren't accidental and so aren't covered by workers' compensation. Still other states, such as Illinois, have recognized an intentional tort exception to exclusivity based on a determination that the employer should not be able to assert that the injury was accidental if she intended to cause the injuries at issue, even if the injuries were unforeseen to the injured employee.

The court also reasoned that Nebraska law, unlike other states, provides that an injury occurs by accident and therefore is compensable, if it is unexpected or unforeseen to the person suffering the injury, and also provides that employees covered by the act surrender their rights to other methods or forms of compensation, including tort claims

"We see no language in the Act that would support a rule whereby injuries occurring as a result of an employer's specific intent to injure an employee are exempted from the employee's surrender of rights to other forms of compensation but all other injures are not," the court wrote.

Thus, the court affirmed the lower court's ruling that the worker's claims were barred by Nebraska's workers' compensation exclusivity provisions.

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