Moseley’s domestic partner told police she had bipolar and schizophrenia disorders caused her to become violent and erratic. Moseley also had delusions of jealousy and had threatened her partner with a gun in the past. Although Moseley seemed to be doing well in the weeks before the shooting, her partner observed that Moseley was having financial problems and had to use her partner’s car because of issues with the tags on her own vehicle. It was later discovered that Moseley had been charged with traffic violations that resulted in the suspension of her vehicle registration due to expired plates.
This is more facts than you need. But it is probably important that we understand how much – and how little – goes into tragedies like this.
The plaintiffs, who worked as temporary laborers at the facility, alleged that Rite Aid and Abacus were negligent in failing to provide adequate security and in hiring and supervising Moseley.
Specifically, they claimed that Rite Aid breached its duty to provide adequate protection for its workers by negligently failing to staff adequate security personnel and by negligently hiring and supervising an agent, servant, or employee who caused harm to the Mitchells. They amended their complaint to add Abacus, Moseley’s primary employer, as a defendant. Rite Aid argued that the Mitchells’ tort claims were barred because they were temporary employees under Rite Aid’s control and thus Rite Aid was entitled to workers’ compensation immunity.
Is Workers’ Comp the Exclusive Remedy?
In 2023, there are so many employees working for companies that do not employ that. And that is what we had here. The Master Purchase Agreement between Rite Aid and Capstone said they were independent contractors and that each party was responsible for its own employees. Capstone had the responsibility of selecting its employees and providing them with insurance coverage. Rite Aid had the power to remove any Capstone employee from its facilities and could give directives to Capstone workers which gets a little confusing, right? But ultimately Capstone supervisors were in charge of assigning tasks.
The Mitchells sued Rite Aid, alleging that Rite Aid’s negligence caused them physical and mental injuries by breaching its duty to provide sufficient protection for workers, such as failing to staff enough security personnel and negligently hiring and supervising an agent who caused harm. Later, they dropped their second count against Rite Aid and instead added Abacus, Moseley’s main employer, as a defendant.
The Law on Whether Comp Immunizes the Defendants
According to Section 9-509 of the Maryland Workers’ Compensation Act, the liability of an employer for employee injuries is exclusive to workers’ compensation, except for two exceptions. Employees give up their right to sue their employers in exchange for the swift and sure compensation provided under workers’ compensation. There are a few limited exceptions – intentional torts and failure of the employer fails to secure workers’ compensation insurance – but otherwise suing your employer is off limits.
But… covered employees can maintain an civil court action against a culpable third-party tortfeasor. The right to bring a tort action against a third-party tortfeasor is only allowed if the employer is not liable.
How do we decide who is an employee? The determination of whether an individual is an employee is determined by the power to select and hire the employee, the payment of wages, the power to discharge, the power to control the employee’s conduct, and whether the work is part of the regular business of the employer. The biggest factor? The control factor.
But if there is evidence to support an inference that more than one individual or company controls or directs a person in the performance of a given function, the question of whether an employer-employee relationship exists is a question of fact to be determined by a jury.
The Dispute of Whether Rite Aid Was an Employer
In this case, the Mitchells received workers’ compensation benefits from Capstone. They were clearly classified as “covered employees.” The question is whether the plaintiffs had the legal authority to pursue a tort claim against Rite Aid, a third-party wrongdoer. So this appeal centers on the determination of whether Rite Aid can also be deemed an employer of the Mitchells.
The Mitchells argued that Rite Aid is not their employer and should not have workers’ compensation immunity as a third-party tortfeasor. They relied on Michael’s deposition testimony to support their claim that they had the freedom to ignore or follow Rite Aid’s suggestions regarding the breakdown of trucks because Capstone had a specific method. Additionally, they emphasize that Rite Aid had no power to dictate their wages or terminate their employment as these were solely Capstone’s responsibility. Lastly, they point to Section 5.1 of Capstone’s contract with Rite Aid, which explicitly states that neither party’s employees are considered employees of the other party for any purpose, including benefits and privileges extended to their respective employees.
Rite Aid claimed that workers’ compensation immunity barred the Mitchells’ tort claims because they were temporary employees under Rite Aid’s control. it arguedthat it had control over the Mitchells’ daily tasks, making it their employer under the test outlined in Whitehead v. Safway Steel. Rite Aid contended that Whitehead is applicable to this case because, like the worker in Whitehead, the Mitchells were under its control while they were “unloading and packing [Rite Aid’s] merchandise.” Rite Aid also emphasized that the Mitchells cannot dispute the explicit terms of the contract, which granted Rite Aid the power to “remove any [Capstone] employee at any time for any reason from its facilities.”
The Maryland Supreme Court found that this case was most like Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio.
Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio
In the case of Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio, the issue of workers’ compensation immunity was raised due to the complex relationship between the decedent’s direct employer and the parent companies that had control over his work. The Supreme Court of Maryland held that a parent company, A & P (if you are old enough to remember A&P), was not entitled to immunity from tort liability. Salvatore Imbraguglio, who was working as a forklift operator for Supermarket Distribution Services, Inc., died from injuries sustained in an accident in a warehouse owned by A & P but managed by Super Fresh Markets of Maryland Inc, a wholly-owned subsidiary of A & P. Mr. Imbraguglio’s widow received a workers’ compensation award against SDS, while A & P, as the workers’ compensation insurer for SDS, paid all benefits.
Mrs. Imbraguglio filed a premises liability suit against both A & P and Super Fresh. The circuit court granted their respective motions for summary judgment after finding that they were the decedent’s consolidated employers and, therefore, entitled to tort immunity under the Act. However, the Maryland Supreme Court reversed, directing a remand so that Mrs. Imbraguglio’s claims could proceed.
Regarding A & P, the court held that an injured employee could maintain an action in tort against a workers’ compensation insurer for injury caused by the insurer’s negligent maintenance of property that it owns. The court also held that an insurer is entitled to offset any judgment entered against it for amounts already paid pursuant to its obligation as the workers’ compensation insurer.
Next, the court held that the trial court erred in granting summary judgment on the basis that Mrs. Imbraguglio’s suit was barred under the Act because A & P and Super Fresh were the decedent’s “dual” employers. The Court emphasized that the existence of the employer/employee relationship is a question reserved for the fact finder and that summary judgment may be appropriate where the evidence on the issue is uncontroverted. Ultimately, the Court found unpersuasive the contention by A & P and Super Fresh, based on Whitehead, that control over the decedent’s workplace by the petitioners meant that he was an employee of those who exercised that control.
Court’s Holding on Comp Bar
The key to this case is whether there is a dispute of fact. If there is evidence indicating that both Rite Aid and Capstone had control over the Mitchells, the issue of whether an employer-employee relationship exists should be determined by a jury. The court’s job is to decide if the issue of Rite Aid’s status as an employer was wrongly kept from a jury. Rite Aid claims that the contract’s express terms cannot be disputed in determining the existence of an employer-employee relationship.
But other contract provisions support the Mitchells’ argument that they were solely employees of an independent contractor. The conflicting evidence presented by the Mitchells regarding Rite Aid’s control over them does not permit a conclusion of Rite Aid’s control. The court made the important point that you should not confuse control of the workplace with control of the worker. Based on the disputed evidence, a reasonable inference is that Rite Aid was not the Mitchells’ employer. Consequently, the court found the trial court’s grant of summary judgment to Rite Aid on the basis of workers’ compensation immunity was incorrect.
Duty to Prevent Mass Shooting
In their appeal, the Mitchells argued that Rite Aid owed them a duty to provide competent security personnel and security measures responsive to the threat of an active shooter incident, which they claimed was foreseeable particularly due to the recent Capital Gazette shooting in Annapolis. They further contended that Rite Aid breached that duty by failing to have security appropriately stationed at the front desk on the day of the shooting as well as failing to implement any active shooter training measures.
In order to succeed in a premises liability claim arising out of the criminal act of a third party, the plaintiff must demonstrate that such activity was foreseeable. Was this mass shooting foreseeable? When you ask that question, the plaintiffs losing this case becomes forseeeable, right?
There are three ways to show that the landowner was on notice: history of similar criminal activity on the premises, awareness of the violent tendencies of a particular assailant, or knowledge of events occurring immediately before the criminal activity that made imminent harm foreseeable.
In this case, the court found the Mitchells failed to establish any of these theories to show that Rite Aid had any duty to provide heightened security measures to protect employees from Moseley’s attack. There was no history of violent criminal activity in the area, no indication that Moseley posed a threat of violence, and the events immediately preceding the shooting did not presage any imminent violent outburst. The court concedes that standards of care surrounding a business owner’s duty to protect invitees from gun violence are not static and will continue to evolve in light of public policy considerations. But, right now, we are where we are.
Certainly, Mitchell v. Rite Aid will help future defendants get to a jury in these cases where issues of whether the defendant was the employer are murky. But, as much sympathy as I feel for these plantiffs, the court is right. The plaintiffs did not and cannot present any admissible evidence establishing that this shooting spree was foreseeable. And even if there was duty, the cauation element is also missing – this shooting could not be prevented with reasonable care.