Mass Shooting Victim’s NY Civil Action May Move Forward Against Employer
In a case arising out of a tragic and bizarre 2017 multiple-shooting incident at a New York hospital, a state appellate court reversed a decision of the Empire State’s Workers’ Compensation Board that earlier found a first-year medical resident’s injuries from a gunshot wound arose out of and in the course of his employment [Matter of Timperio v. Bronx-Lebanon Hosp., 2022 N.Y. App. Div. LEXIS 704 (3d Dept., Feb. 3, 2022)]. The practical effect of the decision is to allow the gunshot victim’s pending civil action in federal court against the hospital to proceed. The victim had filed what is sometimes referred to as an “upside-down” case in federal court, arguing that his injuries did not arise out of and in the course of the employment. The appellate court stressed that the victim had never worked with, nor had he ever known, the shooter—a former physician at the hospital. The shooting arose exclusively from “arbitrary, broad-sweeping and gravely maligned personal animosity” [Opinion, p. 5], and not from the employment.
Background
On June 30, 2017, Henry Bello, a physician who had worked for the Bronx-Lebanon Hospital from August 2014 until his resignation in February 2015, following an allegation that he had sexually harassed a hospital employee, entered the hospital wearing a white doctor’s coat and a hospital identification badge and carrying, among other things, a loaded AR-15 rifle. In addition to setting fire to the hospital’s 16th floor nursing station using a juice container filled with gasoline, Bello shot Justin Timperio (“the plaintiff”), who was a first-year medical resident at that time, shot and killed another doctor, and shot and wounded four other members of the medical staff, in addition to a patient. After the mass shooting, Bello shot and killed himself.
The hospital and its workers’ compensation carrier filed a First Report of Injury related to the plaintiff’s serious injuries. The New York Workers’ Compensation Board filed and mailed a Notice of Case Assembly, as well as a follow-up notice, to the plaintiff’s last known address notifying him that a workers’ compensation claim had been opened on his behalf, but the correspondence was returned without delivery.
Civil Action in Federal Court
In March 2018, the plaintiff filed a civil action in federal court against the hospital, alleging causes of action for negligence, negligent infliction of emotion distress and negligent hiring, retention, training and supervision. Subsequently, the District Court denied the hospital’s motion for summary judgment, finding, as relevant here, that the plaintiff’s injuries did not arise out of and in the course of his employment because there was no evidence that the shooting originated in work-related differences (as noted in the instant case, Bello and the plaintiff had never worked together and, prior to the incident, had no knowledge of one another).
In May 2019, the hospital moved the federal district court for an order certifying an interlocutory appeal or, in the alternative, for a stay pending the resolution of the proceedings before the Board. The federal court granted the request for a stay but denied the balance of the motion.
Board Says It Has Jurisdiction
Following several hearings, a WCLJ found that the Board had primary jurisdiction over the claim, established the claim for a gunshot wound to the abdomen and set the plaintiff’s AWW for purposes of awarding TD benefits. Upon administrative review, the Board affirmed, finding initially that it was not precluded or estopped by the federal action to address the compensability of the claim and, secondly, that the plaintiff failed to rebut the presumption that the attack occurred during the course of his employment, since the assault occurred while he was working in a non-public area within the hospital, was perpetrated by a former employee, and was not motivated by personal animosity. The plaintiff appealed.
Appellate Court Decision: No AOE/COE
The appellate court agreed with the Board that the Board was not estopped from determining the issue at hand, but the court found, however, that the plaintiff did not sustain an injury arising out of and in the course of the employment. Turning to the compensability of “the claim,” the court stressed that the record demonstrated that the attack had been perpetrated by an individual who was not employed by the hospital at the time of the attack—and had not worked there for over two years—was not and never was the plaintiff’s coworker, did not know the plaintiff and provided no reason for the attack prior to taking his own life.
The court added that nor did the plaintiff know the attacker. There is no evidence that the attack was based upon an employment-related animus between the two or that the attack had any nexus to the plaintiff’s employment or performance of his job duties. Such proof, said the court, was sufficient to rebut the presumption articulated in N.Y. Workers’ Comp. Law § 21(1), and to establish that the assault on the plaintiff resulted exclusively from arbitrary, broad-sweeping and gravely maligned personal animosity, and not from work-related differences with Timperio. Based on the foregoing, the Board’s decision was reversed, and the matter was remitted to the Board for further consistent proceedings.