This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Craig Kopet, et al.,


General Mills, Incorporated,
a foreign corporation,


Filed May 3, 2005


Minge, Judge


Hennepin County District Court

File No. EM 03-020505



Alf  E. Sivertson, Mark F. Gaughan, Law Offices of Sivertson and Barrette, P.A., The Barrister Building, 1465 Arcade Street, St. Paul, MN 55106-1723 (for respondent)


Kathryn Mrkonich Wilson, Andrew J. Voss,  Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN 55402-3720 (for appellant)


            Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.


 U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant challenges the denial of its motion to dismiss for lack of subject matter jurisdiction.  Because there is a genuine issue of material fact regarding whether the actions against respondent fit into the assault exception to jurisdiction under the Workers’ Compensation Act, we affirm.



Respondent Craig Kopet worked for appellant General Mills at its grain elevators, loading and unloading grain from trucks and rail cars.  While working at the Delmar elevator, Kopet encountered fellow employee Austin Church.  Church made statements to Kopet about his body, offensive sexual references, and comments about what Church would like to do to Kopet sexually and what Church would like Kopet to do to him.  Church also made sexually inappropriate comments about Kopet’s wife and children.  In addition, Church unzipped his pants and simulated masturbation.  On a number of occasions, Church rubbed Kopet’s leg, pressed his groin against Kopet’s buttocks, and pushed a metal pole against Kopet’s buttocks as Kopet climbed down a ladder.  Kopet complained to his supervisors several times, asking that they stop Church from touching him and making sexual remarks, but the supervisors ignored his complaints.  Kopet did not claim he received a physical injury or apply for or receive any workers’ compensation benefits related to the incidents.  Kopet left General Mills’ employment in January 2002. 

In November 2003, Kopet and his wife commenced suit against General Mills claiming several common-law causes of action including assault and battery, negligent retention, negligent supervision, and loss of consortium.  In April 2004, the Kopets moved to amend their complaint to seek punitive damages; the district court granted the motion.  General Mills moved to dismiss on the basis that the workers’ compensation system has exclusive jurisdiction over all tort claims and displaces common-law claims.  The district court treated the motion as a motion for summary judgment and denied General Mill’s motion.  This appeal follows.



On appeal from summary judgment, this court must examine two questions:  (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its interpretation of the law.  Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).  A genuine issue of material fact must be established by substantial evidence, which is evidence legally sufficient to withstand a directed verdict at trial.  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).  The district court must not weigh the evidence or decide issues of fact, but only determine whether genuine factual issues exist.  Id.  The nonmoving party must present enough evidence to create not just a metaphysical doubt about a fact, but enough so that reasonable persons could draw different conclusions.  Id. at 71.  The reviewing court views the evidence in the light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A district court’s decision on a motion for summary judgment is reviewed de novo.  Sentinel Mgmt. Co. v. Aetna Cas. & Sur. Co., 615 N.W. 2d 819, 827 (Minn. 2000). 

Minnesota’s workers’ compensation laws were designed to provide medical and lost wage benefits for employees injured as a result of job-related activities.  Minn. Stat. § 176.001 (2004); Wicken v. Morris, 527 N.W.2d 95, 98 (Minn. 1995).  The enactment of the workers’ compensation laws involved a series of compromises by which both employees and employers gained and gave up benefits as compared to the common law.  Kaluza v. Home Ins. Co., 403 N.W.2d 230, 235-36 (Minn. 1987).  As a result of the workers’ compensation laws, “the employer assumes liability for work-related injuries without fault in exchange for being relieved of liability for certain kinds of actions and the prospect of large damage verdicts.”  Karst v. F.C. Hayer Co., 447 N.W.2d 180, 183-84 (Minn. 1989).  The Workers’ Compensation Act (WCA) provides that “[e]very employer . . . is liable to pay compensation in every case of personal injury or death of an employee arising out of and in the course of employment without regard to the question of negligence.”  Minn. Stat. § 176.021, subd. 1 (2004) (emphasis added); McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830, 833 (Minn. 1995).  Thus, the workers’ compensation system is the exclusive remedy for an employee who suffers a “personal injury,” and where the WCA provides the employee’s exclusive remedy, the district courts have no jurisdiction.  Minn. Stat. § 176.031 (2004); McGowan, 527 N.W.2d at 833.[1] 

The WCA recognizes several exceptions to the exclusivity provisions, including the assault exception and the intentional injury exception.  See Minn. Stat. § 176.011, subd. 16 (2004) (excluding from the Act coverage for injuries caused by another intended to injure the employee because of personal reasons); see also Meintsma v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 439-40 (Minn. 2004); Kaluza, 403 N.W.2d at 236; Boek v. Wong Hing, 180 Minn. 470, 471-72, 231 N.W. 233, 233-34 (1930).  Both the assault exception and intentional injury exception have been narrowly construed.  See, e.g., Gunderson v. Harrington, 632 N.W.2d 695, 702-04 (Minn. 2001) (holding intentional injury exception does not apply unless co-worker acted with conscious and deliberate intent to inflict physical injury); McGowan, 527 N.W.2d at 834 (finding the rape of a director of a homeless shelter outside the assault exception because her employment “was a causal factor contributing to her being raped”).  Another exception exists for injuries that do not rise out of the course of employment.  Kaluza, 403 N.W.2d at 232-33 (finding that claim for intentional and negligent infliction of emotional distress caused by unreasonably delayed payments by the workers’ compensation insurer was not covered by WCA and could be pursued as a tort claim).  An exception also exists for a physical injury attributable to a mental stimulus.  See Egeland v. City of Minneapolis, 344 N.W.2d 597, 604-05 (Minn. 1984).[2] Thus, if the injury is covered by the WCA, then the WCA provides the employee’s exclusive remedy, unless the employee can show that the alleged conduct falls within an exception to the coverage of the act.  On this appeal only the assault exception is raised by the parties.

General Mills argues that the Minnesota Supreme Court’s decisions in Meintsma and McGowan narrowly define the assault exception and preclude recovery by the Kopets.  Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 833-34.  The Kopets claim that the assault exception is more expansive and allows a common law claim.  Meintsma and McGowan both deal with the question of what incidents fit within the assault exception.  Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 833.  In Meintsma, a male employee who was part of the union bargaining unit was spanked with a wooden paddle by other union members as a part of a birthday ritual.  684 N.W.2d at 437-38.  The employee went to the hospital emergency room that evening after work where physical injuries were identified.  Id. at 438.  At the hospital, he received pain medication, and he was told not to return to work for the balance of the week.  Id.  The employer filed an injury report for workers’ compensation, and the workers’ compensation insurance carrier denied benefits after learning that the injured employee had filed a complaint and that criminal charges had been brought against the fellow employees who had initiated the spanking.  Id.  There was no indication of any sexual harassment in Meintsma

In McGowan, the director of a homeless shelter was raped by a disruptive shelter client.  527 N.W.2d at 832.  The assault took place in the director’s office after the director had taken him there to defuse the situation.  Id.  The director first applied for and received workers’ compensation benefits for injuries and then instituted a common law tort action against the shelter.  Id. at 831. 

In both the Meinstma and McGowan cases, the supreme court dismissed the employees’ tort claims because WCA was preemptive of tort claims and constituted the exclusive remedy.  Meinstma, 684 N.W.2d at 440; McGowan, 527 N.W.2d at 834.  In neither case did the court find that the employers were part of intentional assaults, but in both cases the court found that the assaults were related to the employment setting, and that the intentional injury and the assault exceptions in the WCA did not apply.  Meinstma, 684 N.W.2d at 440; McGowan, 527 N.W.2d at 834.  In both cases there was some physical assault, physical injury and claim or activity that involved the WCA. 

The parties have directed our attention to the recent decision of this court dealing with a sexual harassment claim by an employee against an employer.  Stengel v. E. Side Beverage, 690 N.W.2d 380 (Minn. App. 2004), review denied (Minn. Feb. 23, 2005).  In Stengel, this court addressed the applicability of the assault exception to the WCA.  Id. at 383.  We stated that the district court had to make “fact-specific inquiries to determine the assailant’s motivation” and had “to determine whether the alleged motivation to injure respondent was based on ‘personal animosity’ toward respondent arising from circumstances ‘wholly unconnected with the employment.’”  Id. at 385-86.  This court found that the “wholly unconnected” standard requires an analysis of the employee’s job and concluded that there was no particularized hazard inherent in the type of position held by the claiming employee.  Id. at 386.  This court held that the district court properly denied summary judgment because a genuine issue of material fact existed as to whether the alleged acts directed against the employee were for personal reasons.  Id. at 386-87.

The alleged offensive conduct by Church against Kopet is similar to the conduct in the Stengel case.  It appears to be unprovoked and spontaneous conduct by a fellow employee.  Although occurring at the work site, the comments and contact directed at Kopet appear personal in nature.  Unlike McGowan, Kopet was not placed at risk of this type of an attack because of the nature of his employment and the identity of the assailant.  There is no evidence that the harassment inflicted on Kopet was part of a long-standing workplace tradition like the birthday paddling in Meinstma.  This appeal concerns denial of appellant’s motion for summary judgment.  Stengel also involved summary judgment.  Like Stengel, this appeal concerns what motivated Church as the assailant.  Viewing the proceeding and record most favorably to the Kopets, we conclude that there is a genuine issue of material fact whether Church’s alleged acts were directed against Kopet for personal reasons unconnected to employment.  We conclude that summary judgment was properly denied.


[1] Cases may arise in which the employee seeks to be freed of the exclusive and limited recovery under the WCA to pursue a common-law claim and others may arise where the employer seeks to avoid strict liability under the WCA.  Thus, in different situations the employee/employer arguments may not be consistent.  The identity of the party arguing each prospective should not affect the analysis.

[2] Some physical injury is apparently required for WCA coverage.  See Egeland, 344 N.W.2d at 604-05.  Without considering the assault exception, a recent Minnesota federal district court stated that the WCA does not preempt common-law tort claims for sexual harassment that do not involve a physical injury.  See Hollen v. USCO Distribution Servs., Inc., No. Civ. 02-1119, 2004 WL 234408, at *11 (D. Minn. Feb. 3, 2004).  Such a claim has not been raised in this appeal or considered by the district court and we express no opinion regarding its applicability or merits. 

We also note that Kopet’s complaints are akin to sexual harassment claims typically brought under the Minnesota Human Rights Act.  Minn. Stat. § 363A (2004).  The applicability of the MHRA is not before us.