The “Personal Animus” Exception: An Opportunity to Bring Suit Against Your Employer for Work-related Personal Injuries

General Rule Regarding Suit Against Employer for Workplace Injury:

Generally, according to the Pennsylvania Workers’ Compensation Act (WCA), “an employer is required to pay workers’ compensation benefits to an employee who sustains an injury in the course of her employment.”^[1] The common law tort actions between employees and employers were replaced by workers’ compensation claims as a way for employees to obtain compensation for work injuries.^[2] As such, an employee cannot directly sue their employer for personal injuries sustained during the course of employment. The WCA contains “exclusivity provisions” which indicate that an employee’s sole remedy for work-related injuries sustained in the course of employment is to file a workers’ compensation claim.^[3]

However, there are exceptions to these exclusivity provisions. One exception is known as the “personal animus exception,” also referred to as a “third-party” exception, which allows an employee to pursue a claim outside the WCA if the injury was caused by a third party or co-worker for reasons purely personal to the assailant and unrelated to the victim’s employment.^[4]

What Is the “Personal Animus” Exception?

Section 301(c)(1) of the WCA establishes the “personal animus” exception in the WCA and, in relevant part, states that the “term ‘injury arising in the course of his employment,’ as used in this  article, shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employe or because of his employment[.]” 77 P.S. § 411(1).

The employee asserting the exception bears the burden of showing that the third party/assailant acted with the intention to cause injury for purely personal reasons.^[5] Therefore, to invoke this exception, the employee must show that the “third-party’s actions were motivated by a history of personal animosity toward that particular employee.”^[6]

Further, an employee must prove that his “injuries are not work-related” and that “he was injured by a co-worker for purely personal reasons.”^[7] Certain factors, if present, could indicate that the attack is work-related, and as such falls outside the personal animus exception. Specifically, factors that tend to favor the incident work-related include the following:

• “lack of pre-existing animosity between the combatants”^[8]
• “… the third party would have attacked a different person in the same position as the injured employee[.]”^[9]
• Attack “[..]occurs on the employer’s premises.”^[10]

Does the “Personal Animus” Exception Apply to Sexual Attack Claims?

In Grabowski v. Carelink Cmty. Support Servs., Inc. 230 A.3d 465 (Pa. Super. 2020), the Superior Court of Pennsylvania held that Pennsylvania case law does not indicate that “sexual assaults are necessarily excluded from WCA coverage or that a sudden assault by a non-employee with whom the plaintiff was required to interact in the performance of her job falls within the personal animus/third-party attack exception.”^[11]

In this case, Plaintiff, a residential counselor at her employer’s impatient psychiatric and mental health service facility, was injured at the facility while performing her job duties. Specifically, she was attacked by a resident of the facility who she was assisting.^[12] In a negligence action brought against the employer, Plaintiff detailed that the resident “[w]ithout leave or notice or provocation, … did lay violent hands upon the Plaintiff; fondling and groping her before knocking her to the floor and assaulting her in a sexual nature.”^[13] Plaintiff ultimately alleged that the “employer was liable for the attack because it did not have safety procedures, equipment and a building design sufficient to protect Plaintiff from “potentially violent patients.”’^[14] The trial court granted the motion for judgement on the pleadings that was filed by the employer, and held that Plaintiff’s negligence suit against her employer was barred by the WCA. Id.

On appeal, the Court analyzed “whether the trial court correctly held that, under the undisputed facts established by the pleadings, the attack on Plaintiff did not fall within the WCA’s “personal animus” or “third party attack” exclusion and that Plaintiff’s action was therefore barred by the employer’s immunity under the WCA.”^[15] Ultimately, the Pennsylvania Superior Court held that “Plaintiff’s tort action against Employer is barred as a matter of law by employer’s immunity under the WCA.”^[16]

To reach its conclusion, the Court reiterated that “Plaintiff’s complaint averred that she was attacked in the performance of her job duties by a patient with whom she was required to work and that the attack was sudden and for no known reason.  … Where an employee is the victim of a sudden attack by a non-co-worker for unknown reasons and the attack occurred while the employee was performing her job, the personal animus/third party attack exception does not apply.”^[17]

Of note, the Court also explained that “the personal animus/third party attack exception has repeatedly been held inapplicable to sexual assaults on the employer’s premises where the assailant was a stranger or a non-co-worker with whom the employee was required to interact in the performance of her job.”^[18]

In sum, the circumstances of the alleged incident will dictate whether the “personal animus” exception to the WCA applies. Employer’s and their counsel should be aware that, more often than not, the facts of a particular incident will fall outside the scope of the “personal animus” exception and counsel should be prepared to move to dismiss such claims based upon the WCA when suit is filed.

[1] Grabowski v. Carelink Cmty. Support Servs., Inc. 230 A.3d 465, 470 (Pa. Super. 2020); see also 77 P.S. § 431; Whitmoyer v. Workers’ Compensation Appeal Board (Mountain Country Meats), 646 Pa. 659, 186 A.3d 947, 948 (Pa. 2018); LeDonne v. Workers’ Compensation Appeal Board (Graciano Corp.), 936 A.2d 124, 129 (Pa. Cmwlth. 2007).

[2] Grabowski, 230 A.3d 465 at 470; see also Markle v. Workmen’s Compensation Appeal Board (Caterpillar Tractor Co.), 541 Pa. 148, 661 A.2d 1355, 1357 (Pa. 1995).

[3] Franczyk v. Home Depot, Inc., 292 A.3d 852, 853 (2023) (quoting  77 P.S. § 481) (The WCA’s linchpin is its “exclusivity provision,” which provides that “[t]he liability of any employer under this act shall be exclusive and in place of any and all other liability to such employees . . . in any action at law or otherwise on account of any injury or death . . . or occupational disease.”)

[4] Kohler v. McCrory Stores, 532 Pa. 130, 615 A.2d 27 (1992).

[5] Schweitzer v. Rockwell Int’l, 586 A.2d 383, 385 (Pa. Super. Ct. 1990); see also Newman v. Point Park Univ., No. 2:20-cv-00204, 2022 U.S. Dist. LEXIS 60722, at *107-14 (W.D. Pa. Mar. 31, 2022); Krasevic v. Goodwill Indus. of Cent. Pa., Inc., 2000 PA Super 348, 764 A.2d 561, 566-67 (Pa. Super. 2000) (“a presumption nonetheless remains that an attack is work-related when, as here, it occurs on the employer’s premises, and that the lack of previous personal animus strongly indicates a work-related cause.”).

[6] Hershey v. Ninety-Five Associates, 413 Pa. Super. 158 (Pa. Super. 1992).

[7] Abbot v. Anchor Glass Container Corp., 2000 Pa. Super. 249 (Pa. Super. 2000); Hammerstein v. Lindsay, 440 Pa. Super. 350, 655 A.2d 597, 601 (Pa.Super. 1995)(emphasis original)(quoting Kohler v. McCrory Stores, 532 Pa. 130, 137-138, 615 A.2d 27, 30 (1992)).

[8] Id.

[9] Abbot v. Anchor Glass Container Corp., 2000 Pa. Super. 249 (Pa. Super. 2000); (quoting Hershey v. Ninety-Five Assoc., 413 Pa. Super. 158, 604 A.2d 1068, 1069 (Pa.Super. 1992), appeal denied, 532 Pa. 651, 615 A.2d 341 (1992)(citing Brooks v. Marriott Corp., 361 Pa. Super. 350, 522 A.2d 618 (Pa.Super. 1987)).

[10] Abbot v. Anchor Glass Container Corp., 2000 Pa. Super. 249, P11(Pa. Super. 2000) see also Kohler v. McCrory Stores, 532 Pa. 130, 137-138, 615 A.2d 27, 30 (1992).

[11] Grabowski v. Carelink Cmty. Support Servs., Inc. 230 A.3d 465 (Pa. Super. 2020) (“Plaintiff argues that the personal animus/third party attack exception applies to her claims because sexual attacks cannot be considered work-related under this Court’s decisions in Schweitzer v. Rockwell Int’l, 402 Pa. Super. 34, 586 A.2d 383 (Pa. Super. 1990) and a federal trial court opinion, Pryor v. Mercy Catholic Medical Center, 1999 U.S. Dist. LEXIS 16084, 1999 WL 956376 (E.D.Pa. Oct. 15, 1999). That, however, is not the law. None of these cases hold that sexual assaults are necessarily excluded from WCA coverage or that a sudden assault by a non-employee with whom the plaintiff was required to interact in the performance of her job falls within the personal animus/third party attack exception.”)

[12] Id. at 468

[13] Id. at 469

[14] Id.

[15] Id. at 470

[16] Id.

[17]Id. at 474; See also Hershey v. Ninety-Five Associates, 604 A.2d 1068, 1069-70 (Pa. Super. 1992); Sabot v. Department of Public Welfare, 138 Pa. Commw. 501, 588 A.2d 597, 598, 600 (Pa. Cmwlth. 1991); Holland v. Norristown State Hospital, 136 Pa. Commw. 655, 584 A.2d 1056, 1057, 1059-60 (Pa. Cmwlth. 1990).

[18] Grabowski, 230 A.3d at 475; see also Hershey, 604 A.2d at 1068, 1070 (holding that WCA immunity barred hotel employee’s tort action for sexual assault by stranger who jumped over the counter while she was working and that plaintiff “cannot rely upon the sexual nature of her attack to establish that the attack occurred for reasons personal to her assailant”); M & B Inn Partners, Inc. v. Workers’ Compensation Appeal Board (Petriga), 940 A.2d 1255, 1259 (Pa. Cmwlth. 2008) (personal animus/third party attack exception did not apply to sexual harassment of hotel employee by hotel guest and hotel employee was entitled to workers’ compensation benefits for that harassment); Sabot v. Department of Public Welfare, 138 Pa. Commw. 501, 588 A.2d 597, 598, 600 (Pa. Cmwlth. 1991) (WCA immunity barred hospital psychiatric aide’s tort action for sexual assault committed by hospital inmate who had a criminal record for prior sexual attacks where there was “no averment that [inmate’s] relationship to [the plaintiff] was in any way unrelated to her position as a Hospital employee”); Holland v. Norristown State Hospital, 136 Pa. Commw. 655, 584 A.2d 1056, 1057, 1059-60 (Pa. Cmwlth. 1990) (WCA immunity barred hospital security attendant trainee’s tort action for assault and rape by a committed psychiatric patient).