Thomas v Ferguson Enterprises, Inc., 2008 ACO #12
The Plaintiff, Kennedy Thomas, testified that before he left for work the morning of October 6, 2004, Mr. Ferguson called him at home and asked him to bring the video camera he had used at a job site to the office. When he arrived at work, Mr. Ferguson invited him into his office. Apparently an argument ensued and Mr. Ferguson questioned the Plaintiff as to why he had called his wife at 1:00 a.m. At some point Mr. Ferguson pulled out a gun and began hitting the Plaintiff in the head with the gun. The Plaintiff suffered serious injuries and suffered a permanent disability.

The magistrate held that the Plaintiff’s injuries arose out of and in the course of employment. The Defendants appealed and argued that the Plaintiff’s injuries did not arise out of and in the course of employment in that the dispute between the Plaintiff and Mr. Ferguson was personal and not work related.

The Commission advised that assaults at work are generally categorized as either horseplay or malicious assaults. The general rule is that if an assault is unconnected with the employment, and the assault is motivated by personal reasons, it usually does not arise out of employment. DeVault v General Motors Corp., 149 Mich App 765 (1986).

The WCAC held that while the nature of the dispute was personal, the Plaintiff’s employment contributed to and facilitated the assault. The Commission advised that the working relationship between the Plaintiff and Mr. Ferguson afforded Mr. Ferguson the opportunity to lure the Plaintiff into his private office and ultimately assault him. Mr. Ferguson was acting in a supervisory capacity when he lured the Plaintiff into a trap. In conclusion, the WCAC felt that is was improper to categorize this as a “neutral risk” case when a supervisor, because of his status, can increase the risk of harm during an assault by placing his victim where he wants him, away from the eyes and help of co workers.

This matter is currently being appealed to the Michigan Court of Appeals.