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Court of Appeal, Fourth District, Division 3, California.

James H. PICHON, Plaintiff and Appellant, v. FAIRVIEW DEVELOPMENT CENTER et al., Defendant and Respondent.

Darlene V. MOTIS et al., Plaintiffs and Appellants, v. FAIRVIEW DEVELOPMENT CENTER et al., Defendant and Respondent.

No. G015274.

Decided: September 30, 1996


Crane, Rayle & Lennemann, Richard P. Crane, Jr., Merrick Scott Rayle and Scott J. Rein for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Robert H. Francis, Felix E. Leatherwood, Richard J. Rojo and Eric Sawyer, Deputy Attorneys General, for Defendant and Respondent.


In this case we consider whether allegations that an employer was negligent in failing to appreciate the gravity of the demonstrated violent tendencies of an employee, in failing to properly discipline the employee, and in failing to follow psychiatric recommendations that the employee's interaction with coworkers and supervisors be minimized, defeat the workers' compensation exclusive remedy rule and make the employer civily liable for the employee's subsequent murderous rampage in the workplace. We conclude they do not.


On July 31, 1991, Michael Rahming, an employee of the State of California's Fairview Development Center (the hospital), went on a shooting spree in the hospital. He killed a coworker, Alan Motis, and seriously injured his supervisor, James Pichon, and the executive director of the hospital, Hugh Kohler. Rahming was convicted of murder and attempted murder and given a life sentence. Pichon and Motis's wife and son1 claimed, and received, workers compensation benefits. They also brought a civil action against the hospital for negligent employment, negligence, and intentional infliction of emotional distress. The hospital answered and then filed a motion for judgment on the pleadings asserting the exclusive remedy provisions of Labor Code section 36022 precluded the civil suit. The trial court granted the motion without leave to amend and dismissed the action.

Because a motion for judgment on the pleadings serves the same function as a general demurrer, we accept as true all properly pleaded allegations in the complaint, and review the complaint to ascertain whether it fails to state a cause of action. (Stockton Newspapers, Inc. v. Redevelopment Agency (1985) 171 Cal.App.3d 95, 99.)

The complaint alleges that Rahming was employed by the hospital as a painter. From the outset of his employment he complained of racial “harassment” by coworkers and supervisors and expressed hostility and dissatisfaction in the workplace. In the spring of 1989, he filed an internal complaint following an argument with the former director of his department. The former director warned, “Rahming would kill someone if allowed to remain at [the hospital].”

In May 1989, Rahming threw a chair at his supervisor and was put on administrative leave for 15 days. In July 1990, he was suspended for threatening to “hit or cut people” after being accused of pouring red paint on a water cooler. On July 31, 1990, a psychiatrist reported to the hospital that Rahming “posed an above average risk to ‘act out’ in a destructive manner.” The State Deputy Director of Developmental Centers responded by denying Rahming was capable of harming people.

In August 1990, Rahming filed a workers' compensation claim for work-related stress injury which he claimed was caused by racial harassment from his coworkers. A psychiatrist evaluated Rahming and recommended his interaction with coworkers and supervisors be minimized because of his paranoia about being harassed. Instead, the hospital management continued to assign Rahming to work in the same environment with the same coworkers.

In March 1991, Rahming was formally counseled for continued insubordination, absenteeism, and shouting at and confronting coworkers. Between January 1991 and July 1991, Rahming wrote a series of memoranda to his supervisors “reflecting antagonism, contempt, hatred, and anger” towards his work environment. On April 30, 1991, the hospital disciplined Rahming by reducing his compensation for three months. On the last day of the disciplinary period, Rahming went on his shooting spree.


Pichon contends the trial court erred in dismissing the complaint on the grounds that workers' compensation provided the exclusive remedy. We disagree.

The law applicable to workplace injuries has recently been articulated by the Supreme Court in Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 713-714, which describes “a tripartite system for classifying injuries arising in the course of employment.” First, there are injuries caused by employer negligence or without employer fault that are exclusively governed by, and compensated at the normal rate under, the workers' compensation system. (§ 3602.) Second, there are injuries caused by ordinary employer conduct that intentionally, knowingly or recklessly harms an employee, which are still exclusively governed by workers' compensation, but for which the employee may be entitled to 50 percent more compensation. (§ 4553.) Third, there are certain types of intentional employer misconduct which bring the employer beyond the boundaries of the compensation bargain, for which a civil action may be brought.

Pichon contends he has adequately alleged this case to be of the latter variety and relies upon section 3602, subdivision (b)(1) which permits an employee to bring a civil suit against his or her employer “[w]here the employee's injury or death is proximately caused by a willful physical assault by the employer.” (Italics added.) He contends he has properly pleaded facts, which if proved, would show that the hospital, by its negligence in ignoring evidence of Rahming's violent propensities, ratified his conduct and shared in the responsibility for the shootings.

In Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, the court upheld a summary judgment dismissing a civil suit brought by retail store employees against the owner for injuries sustained in an armed robbery of the store because workers' compensation was the exclusive remedy. The employees had presented undisputed evidence that there had been several armed robberies in the preceding months, the store had no security system, no guards, and inadequate exterior lighting, and the employees had repeatedly complained to management about the risk. Nonetheless, the court held, that to constitute the kind of employer intentional conduct which would remove a case from the workers' compensation system, “‘it must be alleged and proved that the employer ‘acted deliberately with the specific intent to injure’ the employee.”' (Id. at p. 1265.) The plaintiffs in Arendell had alleged only negligence or recklessness on the part of the store owner in not responding to the security threat, “not a desire to cause the injurious consequences or a belief that they were substantially certain to result.” (Ibid.) Thus, while a 50 percent penalty against the employer under section 4553 might be justified, the matter was still within the exclusive province of workers' compensation. (Id. at p. 1266; see also Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 248 [workers' compensation the exclusive remedy for employees injured during murderous rampage at office]; Murphy v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 996, [workers' compensation available to employee shot by her husband at workplace where the employer knew the husband did not want her working, knew the husband threatened her at work, refused to transfer her to another facility so she could avoid the husband, and was told the day before by the husband that he intended to kill the employee at work, but did not inform her of the threat].)

Similarly, here Pichon has alleged negligence, or perhaps even recklessness, on the part of the hospital in its handling of Rahming. It did not heed the warnings of one psychiatrist that Rahming posed an above average risk of acting out in a destructive manner or of Rahming's former supervisor that he would kill someone someday if he remained at the hospital. Another psychiatrist recommended Rahming's stress-related claim be handled by minimizing his interaction with coworkers and supervisors because of his paranoia about being harassed. Pichon alleges the discipline the hospital meted out for Rahming's prior acts was inadequate. But he has not alleged that the hospital acted with an intent to cause injury to its employees or that it was substantially certain such injuries would result. To the contrary, Pichon alleged the hospital's management did not believe Rahming was capable of harming anyone.

Pichon relies upon several cases to support his argument, each of which is distinguishable. Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176 permitted an employee to maintain a civil action against an employer for intentional torts (assault, battery, false imprisonment, and rape) committed by a coworker. Reasoning that because a civil action could be brought for intentional injury inflicted by the employer upon an employee, under agency principles the employer should be held civily liable to an employee for the intentional torts of a third party employee committed in the scope and course of employment. (Id. at pp. 178-179.) But Meyer did not discuss section 3601, subdivision (c), which specifically prohibits an employee's tort action against an employer based on vicarious liability for the acts of another employee and thus is of little value.3

Lopez v. Sikkema (1991) 229 Cal.App.3d 31 permitted a wrongful death action against the decedent's employer. The decedent was a striking farm worker. The employer hired and provided weapons to strikebreakers, who in turn shot and killed the decedent as he left a union polling place. By so doing, the employer had stepped outside his proper role as an employer and was precluded from using workers' compensation “‘as a shield against tort liability for outrageous, nonwork-related conduct.”’ (Id. at p. 42.) But Lopez bears no similarity to this case. It represents a classic example of an employer who acted with “a desire to cause the injurious consequences or a belief that they were substantially certain to result.” (Arendell v. Auto Parts Club, Inc., supra, 29 Cal.App.4th at p. 1265.) Here, there are no allegations that the employer stepped outside its proper role by encouraging Rahming or deliberately placing him in situations intending he harm his coworkers.

Finally, Iverson v. Atlas Pacific Engineering, supra, 143 Cal.App.3d 219, permitted an employee's common law action against his employer for a coworkers' repeated assaults on him. The coworker “‘set up a steel horseshoe target directly above [the employee's] place of work,’ forced [him] to remain in confined quarters against his will, and repeatedly pounded a large sledge hammer against the target which subjected [him] to ‘loud crashing noises.”’ The employer learned of the coworkers' conduct, but failed to “‘criticize, censure, terminate, suspend or otherwise sanction or take any action”’ against him. (Id. at p. 222.) Thus, the injured employee had adequately pleaded that the employer had “condoned and ratified” the coworkers' conduct. By contrast, here the complaint alleges no facts from which condoning or ratifying Rahming's conduct could be inferred. To the contrary, it alleges the hospital repeatedly disciplined him.

In short, Pichon does not allege any intentional tort causes of action against the hospital. He does not allege the hospital specifically intended Rahming assault and murder his coworkers, nor that it was substantially certain such an event would occur. Rather, he alleges the hospital was negligent in disciplining and supervising Rahming, and in failing to see the warning signs or heeding the advice of psychiatrists that Rahming's interaction with coworkers be minimized. The hospital may well have been negligent. Indeed, its failures might even rise to the type of “serious and willful” misconduct which would entitle Pichon to an additional 50 percent award of compensation. But the hospital's handling of Rahming does not equate to condoning or ratifying his acts and does not take these injuries in the workplace outside the scope of the exclusivity of workers' compensation.4

The judgment is affirmed.


1.  For convenience all plaintiffs are referred to collectively as Pichon. Furthermore, while this appeal involves two separate actions, the complaints are virtually identical; We shall refer to both cases in the singular.

2.  All statutory references are to the Labor Code.

3.  As noted in Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, at p. 227, fn. 6, the Supreme Court cited Meyer with approval in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, “but only for the proposition that ‘[a] physical assault by the employer upon the employee has been held to justify an action at law against the employer.”’

4.  Pichon states in passing the trial court abused its discretion in not permitting him to amend his complaint, but did not offer below or on appeal any possible amendment.

WALLIN, Associate Justice.

CROSBY, Acting P.J., and SONENSHINE, J., concur.

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