This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




Shoua Lee Xiong,



Golden Valley Microwave Foods, Inc., et. al.,


Filed January 27, 1998


Harten, Judge

Hennepin County District Court

File No. 9618532

Jesse Gant, III, The Gant Law Office, 500 Flour Exchange Building, 310 South Fourth Avenue, Minneapolis, MN 55415 (for appellant)

John E. Murray, Fruth & Anthony, P.A., 3750 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.



Appellant Shoua Lee Xiong challenges the dismissal of her claims of negligent infliction of emotional distress and negligent supervision against her employer. We affirm.


Xiong was employed by respondent Golden Valley Microwave Foods, Inc. (Golden Valley). Xiong alleges that in 1991 a supervisory employee locked her in a storage freezer for an hour and fifteen minutes. She claims that when other employees expressed concern about the length of time she had been in the freezer, the supervisor said "No, leave her in there." Xiong claims that the freezer locked from the outside, so that she could not get out. She asserts that various physical injuries resulted from this incident.

Xiong served an amended complaint on Golden Valley alleging negligent supervision, negligence, failure to reasonably accommodate, intentional infliction of emotional distress, false imprisonment, and negligent infliction of emotional distress. Golden Valley moved to dismiss the amended complaint pursuant to Minn. R. Civ. P. 12.02(e) for failure to state a claim. The district court granted the motion, finding that the exclusivity provisions of the Workers' Compensation Act (WCA) and the Minnesota Human Rights Act preclude Xiong's tort claims. Xiong appeals only the dismissal of the negligent infliction of emotional distress and negligent supervision claims.


Sufficiency of the complaint is a question of law. We need not defer to a trial court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). On review of a dismissal for failure to state a claim, the only question before us is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670) (1955)). It does not matter whether appellant can prove the facts alleged. Royal Realty Co., 244 Minn. at 290, 69 N.W.2d at 670.

Where an employee suffers a "personal injury" as defined in the WCA, the WCA is the exclusive remedy. Minn. Stat. § 176.031 (1996).

"Personal injury" means injury arising out of and in the course of employment * * * Personal injury does not include an injury caused by the act of a third person or 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 (1996). Both parties agree that this injury arose out of and in the course of appellant's employment. Thus, the WCA is the exclusive remedy unless this case falls within an exception.

One exception appears in Minn. Stat. § 176.011, subd. 16, and is known as the "assault exception." If this exception applies, the injury is not compensable under the WCA, and the exclusivity provision does not preclude the employee's assertion of common law claims. Courts have applied the assault exception only when the injury resulted from an attack that was motivated by personal animosity and was wholly unconnected to the employment. Bear v. Honeywell, Inc., 468 N.W.2d 546, 547 (Minn. 1991); see also, McGowan v. Our Savior's Lutheran Church, 527 N.W.2d 830, 834 (Minn. 1995) (assault exception inapplicable to rape incident where victim's employment a causal factor, no contact with the rapist outside work, and victim attacked while working); Parker v. Tharp, 409 N.W.2d 915, 917 (Minn. App. 1987) (assault exception inapplicable where triggered by office discussion during work hours).

We agree with the district court that the assault exception does not apply to the instant case. The freezer incident was connected with Xiong's employment. Xiong was asked to perform packing work in the freezer, the incident took place during work hours at the workplace, and there is no evidence of a relationship between Xiong and the supervisor outside of work.

Xiong argues that a second WCA exclusivity exception applies--the "intentional tort exception." The supreme court has carved out this exception so that

employers who commit intentional torts against their employees cannot use the exclusive remedy provision of the worker's compensation laws to avoid personal liability for their wrongful acts.

Parker, 409 N.W.2d at 918. If the employer intentionally and maliciously inflicts injury, there can be common law tort recovery under this exception. Boek v. Wong Hing, 180 Minn. 470, 472, 231 N.W. 233, 234 (1930). The supreme court has consistently interpreted the intentional tort exception narrowly. Parker, 409 N.W.2d at 918; see Hildebrandt v. Whirlpool Corp., 364 N.W.2d 394, 395-97 (Minn. 1985) (exception inapplicable to employer's deliberate and intentional conduct where injury foreseeable but unintentional); Breimhorst v. Beckman, 227 Minn. 409, 426, 35 N.W.2d 719, 730 (1949) (exception did not apply where employer negligent or grossly negligent).

Xiong's appeal is based on two negligence claims--negligent infliction of emotional distress and negligent supervision. The intentional tort exception therefore does not apply. Xiong argues that her claims are based on assault, battery, and false imprisonment. She urges that the exception should be expanded to include claims of negligence that are based on intentional acts. We disagree. To accept Xiong's argument would require us to broaden the narrow scope of the intentional tort exception. Such an extension would frustrate the purpose of the workers' compensation system and disregard supreme court caselaw.

Because of our disposition under the WCA, we need not decide whether the Minnesota Human Rights Act also precludes Xiong's claims.