This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Movie Gallery Services, Inc.,
Movie Gallery, Video Update, Inc., et al.,
Anoka County District Court
File No. C5-04-6062
Dawn C. Van Tassel, Maslon, Edelman, Borman, & Brand, L.L.P., 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant);
W. Cooper, The Cooper Law Firm, Chartered, Loring Green East,
Considered and decided by Randall, Presiding Judge; Shumaker, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
Respondent Jennifer Olson, a former employee of appellant Movie Gallery Services, originally sued Movie Gallery for sexual harassment, hostile-work-environment discrimination, and assault and battery. Movie Gallery obtained summary judgment on Olson’s sexual-harassment and discrimination claims but not on Olson’s assault and battery claims. On appeal from the denial of summary judgment in its favor on those claims, Movie Gallery argues that (1) Olson’s exclusive remedy is provided by the Workers’ Compensation Act and the district court therefore lacks jurisdiction over her assault and battery claims; and (2) the district court erred by concluding that a “mere averment” in a complaint is sufficient to raise a question of fact as to whether an assault and battery was personally motivated. We affirm.
Respondent Jennifer Olson was employed part-time by appellant Movie Gallery Services, Inc. as a customer service associate. Patrick Marpoe (Marpoe), also employed by appellant, was manager of the store where respondent worked.
Respondent alleges that Marpoe assaulted her at work by snapping and unhooking her bra, kicking and slapping her buttocks, and pulling her underwear up from behind. Respondent reported Marpoe’s conduct to Todd Horan (Horan), appellant’s district manager, who conducted an investigation and was unable to substantiate most of respondent’s allegations, except for the incident in which Marpoe kicked respondent in the buttocks. As a result of his investigation, Horan issued an oral warning to Marpoe. Approximately two months later, Marpoe terminated respondent’s employment, claiming that she failed to comply with company policy.
After termination of her employment, respondent brought suit against appellant alleging sexual harassment, reprisal, and aiding and abetting under the Minnesota Human Rights Act (MHRA), and tort claims of assault and battery, intentional infliction of emotional distress, and negligent hiring, firing, and retention. Appellant moved the court for summary judgment as to all of respondent’s claims.
The district court granted appellant’s summary judgment motion as to respondent’s claims, except her claims for reprisal, and assault and battery. All other claims were dismissed with prejudice.
In denying appellant’s summary judgment motion for respondent’s assault and battery claim, the district court reasoned that although respondent failed to offer any evidence to support her claim that Marpoe’s motivation for the alleged assault and battery was personal, as required under the Workers’ Compensation Act (WCA) assault exception, “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct by fellow employees tends to be unprovoked and spontaneous.” The district court found that Marpoe’s conduct was unprovoked and spontaneous and determined that there were genuine issues of material fact regarding whether Marpoe’s motivation was personal and arose from circumstances wholly unconnected with the employment.
On appeal, appellant argues that the district court lacked jurisdiction over respondent’s assault and battery claim pursuant to the WCA. It is appellant’s argument that respondent’s assault and battery claim clearly arises out of her employment with appellant and is therefore barred by the exclusivity provision of the Worker’s Compensation Act. Appellant also argues that the district court erred in holding that a “mere averment” in a complaint is sufficient to create a question of fact as to whether an assault and battery was personally motivated and thus, preclude summary judgment.
D E C I S I O N
Appellant argues that respondent’s assault and battery claim is exclusively based on her employment at Movie Gallery and therefore, the district court lacks jurisdiction under the WCA.
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,
§ 176.021, subd. 1 (2002), requires employers 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.” As a result, the WCA provides the exclusive
remedy to employees for personal injuries arising out of and in the course of
are three categories of assault cases that occur at the workplace, two of which
are compensable under the WCA, and one that is non-compensable under the WCA
but actionable under common law. McGowan, 527 N.W.2d at 834. Assaults will be compensable under the WCA if
(1) the provocation or motivation for the assault arises solely out of the
activity of the victim as an employee, or (2) the assault was neither directed
against the victim as an employee nor for reasons personal to the
conclude that respondent’s assault and battery claim falls within the latter
category and is within the district court’s subject-matter jurisdiction. The situation presented in this case is
nearly identical to Stengel v. East Side
Beverage. 690 N.W.2d 380 (Minn. App.
2004), review denied (
In Stengel, the plaintiff brought a claim against her employer for
sexual discrimination under the MHRA along with other claims including
common-law assault and battery.
The district court dismissed several
of respondent’s claims but denied the employer’s motion for summary judgment
with respect to the plaintiff’s assault and battery claim.
In concluding that it could not say
as a matter of law that the plaintiff was assaulted solely because of the
nature of her job or in the capacity as an employee, this court analyzed the
nature of the plaintiff’s job.
Applying this court’s analysis in Stengel, the district court has subject-matter jurisdiction over respondent’s assault and battery claim because it is non-compensable under the WCA as a result of the assault exception. Marpoe’s assaults were intentional, motivated by personal desires, and had no connection with respondent’s job duties. See Fernandez v. Ramsey Co., 495 N.W.2d 859, 862 (Minn. App. 1993); Johnson, 424 N.W.2d at 805; Yunker v. Honeywell, 496 N.W.2d 419, 421 (Minn. App. 1993), review denied (Minn. April 20, 1993).
Appellant’s argument is based on the
decisions in Meintsma v. Loram
Maintenance of Way, Inc., 684
N.W.2d 434 (
Meintsma, the supreme court
determined that injuries sustained by an employee as the result of being
spanked with a paddle as a birthday ritual was not within the assault exception
of the WCA because the ritual was a company ritual that was part of the
company’s culture to which most of the employees were subjected.
McGowan, the court concluded that
injuries sustained by an employee as a result of a rape did not fall within the
assault exception of the WCA. 527 N.W.2d
at 834. The court concluded that the
employee’s job duties were a casual factor in contributing to her injuries as a
result of rape.
We conclude the district court properly retained subject-matter jurisdiction over respondent’s assault and battery claim.
The district court found that although respondent failed to offer any evidence to support her claim that Marpoe’s motivation for the assault was personal, “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct ‘appears to be unprovoked and spontaneous conduct by a fellow employee.’” (citing Kopet v. General Mills, 2005 WL 102651 (Minn. App. 2005)). Based on this analysis, the district court determined that there were genuine issues of material fact regarding whether Marpoe’s motivation was personal and arose from circumstances wholly unconnected with the employment. Appellant argues that the district erred by finding a genuine question of fact based on a mere averment. Appellant argues that a question of fact must be based on “substantial evidence legally sufficient to withstand a directed verdict at trial.”
On appeal from summary judgment,
this court must review whether there are any genuine issues of material fact
and whether the district court erred in its application of the law. Star
Centers, Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (
Appellant argues that in “in considering a party’s motion for summary judgment, it is axiomatic that a genuine issue of material fact must be established by substantial evidence legally sufficient to withstand a directed verdict at trial.” Appellant cites DLH, Inc. v. Russ in support of his argument.
does not hold that “it is axiomatic that a genuine issue of material fact must be established by substantial
evidence legally sufficient to withstand a directed verdict at trial.” (emphasis added). In DLH,
the court stated, “[w]e have never explicitly held that the standard
for granting summary judgment in Minnesota mirrors the standard for directing a
verdict, nor do we feel compelled to do so.” 566 N.W.2d 60, 69 (
Appellant is correct that a mere averment alone is not enough to resist summary judgment. Northfield Care Center, Inc. v. Anderson, 707 N.W.2d 731, 734 (Minn. App. 2006) (quotation omitted). The district court improperly assumed that “recent case law appears to provide that a mere averment by a plaintiff in a complaint may be sufficient to create a question of fact when the alleged offensive conduct ‘appears to be unprovoked and spontaneous conduct by a fellow employee.’” But respondent has shown more than a mere averment. “Unprovoked and spontaneous conduct” by a fellow employee is evidence of conduct wholly unconnected to respondent’s employment. A substantial fact question remains: Was Marpoe’s conduct more likely personal than an integral part of respondent’s employment culture? The record does not point to any peculiar hazard in the video rental business whereby the pure fact of respondent’s employment was a causative factor in Marpoe’s “slap and tickle.” It is difficult to conclude that Marpoe’s motivations could not have been for personal reasons. We find the district court properly denied summary judgment on respondent’s assault and battery claim.
 The assault exception under the WCA excludes from the WCA injuries “caused by the act of a . . . fellow employee intended to injure the employee because of personal reasons, and not directed against the employee as an employee, or because of the employment.” Minn. Stat. § 176.011, subd. 16.