In a previous post, the issue of Compensation for assaults at work by a fellow employee was addressed. Worker’s Compensation does cover a claim arising out of an assault that occurred on the job. A second issue that may arise in this case is the right of an employee to directly sue a co-employee for assault.
Generally, employees may not sue their co-workers for negligence. If your co-worker’s negligence causes you to sustain injuries on the job, then your exclusive remedy is Compensation benefits. NY Worker’s Compensation Law section 29. However, if that co-worker punches you, then you can sue that co-worker for assault. First, when a co-worker punches you, that act is an intentional act. There is no negligence claim. Second, unlike Compensation claims, the injured employee can sue for pain and suffering.
Sometimes, direct suits against co-workers do not work out. Sometimes, employees may not be able to identify the assailant. (This can happen on a large construction site where workers sometimes come and go.) And there are times when the assailant is identified, but a judgment can never be collected. The assailant may be insolvent, unable to pay a judgment.
But the injured worker can still elect to sue the assailant and can have a judgment against that person in the event the assailant ever becomes solvent in the future. Judgments are good for ten years. CPLR section 5104. Judgments can be renewed for another ten years.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.