Aggressive Conduct Toward Subordinate Places Sheriff in Jeopardy of Civil Suit Under Wisconsin Law
By Ruder Ware Alumni
September 2, 2014
Just how threatening and intimidating can a superior or co-employee act toward a subordinate or co-employee without incurring the risk of a civil lawsuit for damages under Wisconsin law? The federal district court in Madison faced that interesting question in a preliminary motion hearing. As a result, the lawsuit against the sheriff of Burnett County will proceed at least through the discovery phase, after which a motion for summary judgment might, or might not, be available.
The “exclusive remedy” provision of the Worker’s Compensation Act provides near immunity from suit against the employer. That protection from suit likewise applies to individuals (superiors or co-employees), except for a few exceptions. One of those exceptions is an assault with intent to cause bodily harm. Actual bodily harm is not required, but there must be intent to cause bodily harm coupled with an “assault.” You might ask: “An assault is bodily harm, right?” Actually, not. Under Wisconsin law, the making and raising of the fist would be an example of an “assault,” while the actual physical contact is a “battery.” Hence, the term “assault and battery.”
Under Wisconsin tort law, verbally berating and hounding a co-employee or subordinate in the absence of some degree of aggressive physical behavior would not subject the offending party to suit even if the victim has a nervous breakdown as a result. It is another story if the aggressor strikes the victim. That would remove the protective shield of the worker’s compensation exclusive remedy; the aggressor could be sued individually for all of the victim’s damages, including emotional injury.
What if the aggressor threw a punch, the victim ducked, and the aggressor missed? The law presumes that one intends the reasonably foreseeable consequences of his actions. In that instance a suit against the aggressor would probably proceed to trial because a swing and a miss is strong evidence that the aggressor meant to hit the victim.
In a motion to dismiss decided on August 1, 2014 in Nesvold v. Roland (2014 WL 3810899), the amended complaint alleged that the Burnett County Sheriff “rushed” the jail administrator, “pointed his finger” in the administrator’s face, “pounded on the windows,” “threw boxes at the wall,” and “intended to restrain” the administrator so as to cause him to assume a defensive posture. The district judge ruled that these allegations at the pleading stage are enough to get past a motion to dismiss. Whether the sheriff is actually determined to have intended to cause bodily harm will play out in the discovery phase, and possibly, at trial.
Not to lose sight of the big picture in this case, federal charges for alleged deprivation of civil rights were not part of the motion to dismiss and will go forward.
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