YOU MAY NOT FEAR THE REAPER: But you should always fear the Joker

Any employer’s worst nightmare is the “Joker.” This is the person, normally a male, who takes great pride in adding laughter to the workplace. In the good old days, he was the one who went office to office telling the “dirty” joke or exhibiting the dirty cartoon. With the advent of e-mail, you could count on him to circulate the tacky e-mail. Most employers have muzzled the “Joker” with workplace rules against porn on the computer. However, no matter how hard you try, you can never eliminate the “Joker.”

I submit for your consideration the case of Dalton Hughes, an employee of the Metro Fire Department.

One day in 2004, Mr. Hughes was walking innocently in a parking lot at his place of employment when the “Joker” happened upon him. The Joker, an employee of the Metro Public Works Dept., was returning a front end loader to the Public Works facility. As it was the end of the day, the Joker was looking for some entertainment. He spotted Mr. Hughes who unfortunately had his back to the Joker. You, of course, never ever want to be caught with your back to the Joker. But, I digress. The Joker quickly identified his victim, plotted his moves and put his plan into action. The Joker “revved the engine and dropped the bucket of the loader to the pavement, thereby making a loud, scraping noise.”

The Joker planned to scare Mr. Hughes, and he was wildly successful. Mr. Hughes was scared to death. In fact, Mr. Hughes was so scared that he jumped over a guardrail in order to get out of the way. But, Mr. Hughes apparently was not very agile. He landed with a thud. When he looked up, he was the Joker “sitting on the loader with a big grin on his face.” Mission Accomplished!

Thanks to the Joker, Mr. Hughes spent the next several weeks recovering from his injuries. In fact, he had rotator cuff surgery and double knee replacement surgery. The Joker’s laugh cost Mr. Hughes $80,000 in medical bills and $23,500 in lost wages.

Normally, a claim for injuries caused by another employee are covered by the employer’s worker’s compensation benefits. But, unfortunately for Mr. Hughes, Metro (like several counties and cities) has opted out of the Tennessee Workers’ Compensation Act. So, Mr. Hughes filed a claim against Metro and the Joker under the Governmental Tort Liability Act.

Metro asserted defenses to this claim; however, only two are really relevant for this discussion. First, Metro asserted that the Joker was acting outside of his “scope of employment.” In essence, Metro said that we did not give permission to the Joker to play practical jokes. In fact, Metro said we have work rules that prohibit practical jokes. Therefore, we are not responsible.

With respect to this issue, the Tennessee Supreme Court adopted the simplified approach set forth in the Restatement (Third) of Agency. That simplified statement is:

An employee acts within the scope of employment when performing work
assigned by the employer or engaging in a course of conduct subject to the
employer’s control. An employee’s act is not within the scope of employment
when it occurs within an independent course of conduct not intended by the
employee to serve any purpose of the employer.

The Court concluded that the Joker’s primary job was to operate and then return the front-end loader to the Metro facility. As the Joker was doing that at the time of the incident, his “joke” could not be deemed to be a “purely personal” activity.

Metro also claimed that it was immune from liability because the Joker’s actions were not negligent. They were in fact intentional. The Joker was not negligent, he intended to scare Mr. Hughes. As the Governmental Tort Liability Act specifically states that a governmental entity is not liable for the intentional torts of its employees, if the action was in fact intentional, Metro remains immune.

On that question, Mr. Hughes luck continued. The Tennessee Supreme Court acknowledged that an assault occurs for criminal purposes when someone intentionally, knowingly or recklessly causes: (a) bodily injury, (b) a reasonable fear of imminent bodily injury or (c) physical contact with another that a reasonable person deems extremely offensive or provocative.

For civil purposes, the Court concluded that an assault occurs when someone “intends to create an apprehension of harm.” In this case, the court stated that the Joker intended to scare Mr. Hughes. Therefore, the Joker was guilty of assault.

Seven (7) years after the accident, Mr. Hughes is told by the Tennessee Supreme Court that his lawsuit against the Joker may proceed, but his lawsuit against Metro is dismissed.

For employers, this case emphasizes the dangers of the Joker and his actions. The Tennessee Supreme Court’s simplified approach to determining whether the Joker is acting in the “course and scope” of his employment makes it easier for the victims to allege and prove that requirement. Metro was able to avoid liability because of sovereign immunity – something that private employers do not possess.

THE MORAL OF THIS STORY: YOU MAY NOT FEAR THE REAPER, BUT YOU SHOULD ALWAYS FEAR THE JOKER.

For the rest of this story, see: Dalton Reb Hughes v. The Metropolitan Government of Nashville and Davidson County, Tennessee, M2008-02060-SC-R11-CV (Tenn. May 24, 2011).