Washington Public Defender May Be Able to Recover in Tort for Work-Related PTSD

Restrictive “Mental-Mental” Coverage in State’s Comp Act Opens Door to Potential Liability

In a case with a bizarre fact pattern, a King County (Washington) public defender, who contended that she suffered post-traumatic stress disorder (PTSD) after she was stalked and harassed by a criminal defendant she represented, may proceed against her employer in a civil action alleging a hostile work environment and negligence [LaRose v. King County, 2019 Wash. App. LEXIS 646 (Mar. 19, 2019)]. In pertinent part, the Court said her civil action was not barred by the exclusive remedy provisions of the state’s Industrial Insurance Act (IIA) since a genuine issue of fact existed regarding whether her PTSD and related injuries constituted a compensable “injury” under the IIA.

Background

Plaintiff was a public defender for the Public Defender Association (PDA), although eventually Washington County replaced PDA as her employer. PDA assigned her to represent “Mr. Smith” on a charge of felony stalking. During the representation, Smith began making frequent, unwanted, and inappropriate phone calls to Plaintiff at work. Plaintiff notified her supervisors, but she decided to continue to represent Smith and her supervisors did not remove her from the case. After the representation ended, Smith’s harassing and stalking behavior escalated until he was arrested and charged for his conduct.

In particular, on one occasion, Smith jumped out at Plaintiff in the parking garage, left lingerie on her car, left literature in her mailbox, and came repeatedly to her house. He hid in her backyard, appeared at her bedroom window in the middle of the night, and broke a bedroom window. He sent messages about seeing Plaintiff, her daughter, and a man who came to her home. Plaintiff sent emails to her County supervisors detailing these contacts.

Plaintiff subsequently was diagnosed with PTSD, was placed on disability, and ultimately was discharged from employment because she was unable to work as a public defender.

Hostile Work Environment, Negligence and Intentional Tort

Plaintiff filed a lawsuit against PDA and the County alleging, inter alia, that her supervisors’ handling of the situation with Smith had created a hostile work environment in violation of the Washington Law Against Discrimination (WLAD), that PDA and the County were negligent in failing to protect her from Smith’s harassment, that PDA and the County deliberately injured her, and that the County discriminated against her based on her disability. The trial court dismissed the hostile work environment claim under Rule 12(b)(6), and granted summary judgment in favor of PDA and the County on Plaintiff’s remaining claims. She appealed those rulings.

Appellate Court Reverses, in Pertinent Part

The appellate court held:

1. The trial court erred in dismissing Plaintiff’s WLAD claim because under certain circumstances, an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace;
2. The trial court erred in ruling that the IIA (title 51 RCW) barred Plaintiff’s negligence claims because a genuine issue of fact existed regarding whether her PTSD and related injuries constituted a compensable “injury” under the IIA;
3. Plaintiff failed to present evidence that created a genuine issue of material fact that the IIA bar was inapplicable under RCW 51.24.020 based on her allegation that PDA and the County deliberately injured her; and
4. Plaintiff’s disability discrimination claim failed because she did not present evidence that created a genuine issue of material fact regarding that claim. In addition, the Court held that the trial court erred in ruling that the County was vicariously liable for PDA’s conduct.

The Court offered a detailed analysis of the WLAD claim that is beyond the scope of my specific interest in the workers’ compensation issues.

Exclusive Remedy Issue

As to the workers’ compensation issues, Plaintiff argued that the trial court erred by ruling that the IIA barred her negligence claims (breach of a special relationship duty of care and negligent infliction of emotional distress) because a genuine issue of fact existed as to whether her PTSD and related injuries constituted a compensable “injury” under the IIA [see Larson’s Workers’ Compensation Law, §§ 56.05, 56.06].

The Court acknowledged that the exclusive remedy for claims based on workplace injuries or occupational diseases was pursuant to the IIA; tort actions were barred. The Court stressed, however, that the IIA does not bar a tort claim against an employer if a plaintiff’s injury or disease arising in the workplace does not meet the IIA definition of “injury” or “occupational disease” [citing McCarthy v. Dep’t of Soc. & Health Servs., 110 Wn.2d 812, 817, 759 P.2d 351 (1988); see also Rothwell v. Nine Mile Falls Sch. Dist., 173 Wn. App. 812, 819, 295 P.3d 328 (2013)]. The Court said, “In other words, the IIA bar applies only if a claim is potentially compensable under the IIA.”

Special Definition of “Injury” and “Occupational Disease”

The Court continued by noting that pursuant to RCW 51.08.100, an “injury” is defined as a “sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom.” Separately, RCW 51.08.140 defines “occupational disease” as “such disease or infection as arises naturally and proximately out of employment.” The Court added that claims based on mental conditions or mental disabilities caused by stress do not fall within the definition of an occupational disease in RCW 51.08.140, although stress resulting from exposure to a single traumatic event can be adjudicated as an industrial injury.

Injury Analysis

Plaintiff had been subjected to repeated exposure to traumatic events over a period of several months. The question was whether—within this series of traumatic events—Plaintiff was exposed to a “single traumatic event” and thereby sustained a compensable industrial injury as defined in RCW 51.08.100 and WAC 296-14-300(2). If the question was answered in the affirmative, her tort action against the employers was barred. The Court said there was a genuine issue of material fact as to whether the incidents described by Plaintiff amounted to a single traumatic event and it was error, therefore, to dismiss the claim on that basis.

Negligence

The Court continued that, In general, a person has no duty to protect another from intentional harm by a third party. However, there is an exception where a special relationship exists between a person and another that gives the other a right to protection. Citing existing case law, the Court said the employer-employee relationship is one that creates a duty to protect against a third party’s criminal conduct. Based on Plaintiff’s allegations, the Court said PDA was not entitled to summary judgment on the merits of Plaintiff’s negligence claims.