Increased Risk from Work Environment Makes Shooting Compensable: Florida Supreme Court

Case File

When is a workplace assault compensable under Florida's Workers' Compensation Law? When the work environment exposes the worker to an increased risk of assault.

Case

Bouayad v. Normandy Ins. Co., No. SC2023-1576 (Fla. 07/09/26).

What Happened

An unknown assailant shot a worker while he walked at midnight from an inside location to an unsecured outside location at his employer's place of business, which was in an area with higher-than-average crime rates.

Specifically:

+ The claimant was a car rental manager.

+ He regularly carried cash and rental agreements.

+ He was working around midnight.

+ He moved between locations on the employer's premises.

+ The area was dimly lit and unsecured.

+ He had recently terminated employees.

+ The motive was unknown.

A judge of compensation claims found the worker eligible for workers' compensation benefits, relying on Strother v. Morrison Cafeteria, 383 So. 2d 623 (Fla. 1980), a case that upheld an award of benefits to a cashier for injuries she sustained after being assaulted and robbed by men who followed her home from work, thinking she carried cash deposits.

On review, the District Court of Appeal held that the worker's injuries were non-compensable because they did not arise out of work performed by the worker. The District Court of Appeal certified to the Florida Supreme Court the question of when an act of a third-party tortfeasor is the sole cause of an injury to an employee who is in the course and scope of employment, can the tortfeasor’s act satisfy the occupational causation element, as defined by section 440.02(36), Florida Statutes, necessary for compensability under the Worker’s Compensation Law?

The Florida Supreme Court took up the issue, but modified the question to read "When a third-party tortfeasor assaults an employee who is in the course and scope of employment, can the resulting injuries be compensable under the Workers’ Compensation Law?

Rule of Law

In Florida, an employer must pay compensation or furnish benefits required by the Workers' Compensation Law if an employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment. "Arising out of" pertains to occupational causation; an accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death.

What the Florida Supreme Court Said

The Florida Supreme Court was "not persuaded" that the statutory text supported the District Court of Appeals' "narrow focus" that "the only work activity performed by [the worker] at the time of the shooting walking from the kiosk to the outer office" and its conclusion that there was no occupational causation because the worker's "walking in the performance of his work did not cause him to suffer injuries from a shooting."

Instead, in the Florida Supreme Court's analysis, "Given the Legislature’s repeated use of broad language, the better reading of 'arising out of work performed' and 'occupational causation' is what courts have long said—the accident (and resulting injuries) must have a work relatedness in the sense of a nexus or link to the employee’s 'work' (i.e., 'job')."

The court reasoned that "arising out of work performed" was not "synonymous with an injury 'caused by work performed'" and faulted the District Court of Appeals for conflating "arising out of" and "caused by" and for "misread[ing] the statute to say '[the task] performed [at the time of the injury]' rather than just 'work performed.'"

Instead, the Florida Supreme Court held that workplace assaults are covered where the assault relates to the employment. To determine work-relatedness, the "necessary inquiry" is whether a claimant's accident arose out of a risk incidental to work.

"In the context of workplace assaults, one way for a claimant to establish work-relatedness is through proof that the assailant had a work-related criminal motive—for example, that the injury occurred during a robbery," the court wrote. "But, as an independent basis for identifying work-relatedness, courts have properly considered whether the overall job duties and work environment exposed the employee to increased risks and hazards that brought about the injury."

Case Examples: In explaining the concept of "work-relatedness," the Florida Supreme Court looked to previous cases for illustration, as follows.

Lovin Mood, Inc. v. Bush, 687 So. 2d 61 (Fla. Dist. Ct. App. 1997). The court in this case found “the necessary causal connection between [the victim’s] injuries and her employment”
when an employee, working alone in “a store located in a somewhat isolated area of the mall,” was raped by a customer.

Jenkins v. Wilson, 397 So. 2d 773 (Fla. Dist. Ct. App. 1981). The court found an injury compensable when a law firm secretary was abducted as she walked after work from her work building to the parking lot and was then raped. The assailant’s “motive for selecting [the woman] as his victim remain[ed] unknown.” The court nonetheless held that the victim’s injury was work related because her “employment created a hazard from which her injury arose.” Specifically, the victim “stayed late at work on the afternoon in question and, as a consequence, was alone in the parking lot at that later hour. Therefore, as a result of her
employment, she was more susceptible to such an attack.”

San Marco Co. v. Langford, 391 So. 2d 326 (Fla. Dist. Ct. App. 1980). The Florida Supreme Court looked to this case to reason that "not all workplace assaults are compensable," as the court in this case concluded that an employee-on-employee shooting did not satisfy the 'arising out of' requirement where it was 'clear' from the evidence 'that the assault ... was the result of personal animosity' and that the employment had contributed nothing to the assault."

In reaching its conclusion, the Florida Supreme Court cited favorably the JCC's reasoning the risk of injury in this case was not “distinctly (or wholly) personal in nature” nor was the risk one that the worker “imported into the workplace.” Instead, the "employment substantially contributed to the risk of an attack and to risks" to which the worker would not normally be exposed.

Verdict: The Florida Supreme Court quashed the District Court of Appeals' decision on review and remanded the case.

Takeaway

In Florida, an assault is not automatically compensable simply because it occurs at work. The claimant must establish a sufficient nexus between the employment and the assault, either through a work-related motive or through evidence that employment conditions increased the risk of the attack.

Checklist for Adjusters: Based on the Florida Supreme Court's decision in this case, when investigating a workplace assault claim, adjusters should determine --

+ Is there evidence of a robbery, retaliation, or other work-related motive?

+ Was the employee in the course and scope of employment?

+ Did job duties expose the employee to greater risk?

+ Was the employee working alone?

+ Was the employee handling cash?

+ Was the employee working late-night or early-morning hours?

+ Was the employee required to enter isolated or unsecured areas?

+ Did the location have known crime issues?

+ Was the assault related to personal animosity?

+ Did the employee bring the risk into the workplace?

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