JANE DOE, ET AL.
P.F. CHANG'S CHINA BISTRO INC., ET AL.
25, 2017 Session
from the Circuit Court for Shelby County No. CT-003016-11,
CT-004140-11 Donna M. Fields, Judge
interlocutory appeal arises out of a tort action brought by a
restaurant manager against her employer for injuries she
received during the course of a robbery and rape by a cook at
the restaurant where both were employed. The employer moved
for summary judgment, contending that the workers'
compensation law provided the exclusive remedy for the
employee. The trial court denied the motion, holding that the
injuries the employee sustained did not arise out of the
employment. Upon review, we affirm the denial of summary
judgment and remand the case for further proceedings.
R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit
Court Affirmed;Case Remanded
G. Reid, Jr. and Kathryn K. Van Namen, Memphis, Tennessee,
for the appellant, P.F. Chang's China Bistro, Inc.
K. Smith and Karen M. Campbell, Memphis, Tennessee, for the
appellees, Jane Doe and John Doe.
Richard H. Dinkins, J., delivered the opinion of the court,
in which Arnold B. Goldin and Kenny W. Armstrong, JJ.,
RICHARD H. DINKINS, JUDGE
Factual and Procedural History
Jane Doe worked as a hospitality manager at P.F. Chang's
China Bistro in Memphis. Close to midnight on the night of
September 12, 2010, she was in the restaurant's office
performing closing procedures with the door to the office
locked. Ms.Doe answered a knock at the door, and a masked man
entered brandishing a gun. The man directed her to sit in a
chair, where he put tape on her face and asked for the code
to the safe; he proceeded to open the safe and take out the
money. He then instructed Ms. Doe to move to another chair,
where he tied her arms to the sides of the chair, tied her
legs, and put more tape on her face. He then put the money
from the safe into a bag, came to the chair where Ms. Doe was
restrained, removed her clothes, and proceeded to rape her.
The man was later determined to be Jorge Ricardo Rojas-Morin,
an employee of the restaurant, who had been at work that
evening and, after getting off work, had jammed the emergency
door to prevent it from closing, gone to his vehicle to
change clothes, returned to the restaurant, and committed the
Doe and her husband ("Mr. and Mrs. Doe") filed a
complaint on June 24, 2011, against P.F. Chang's and
Rojas-Morin for the injuries she sustained. The complaint
asserted causes of action against both defendants for
intentional infliction of emotional distress, outrageous
conduct,  negligent infliction of emotional
distress, and loss of consortium. As to P.F. Chang's, the
complaint asserted causes of action for negligence, gross
negligence, negligent hiring, intentional misrepresentation,
misrepresentation by concealment, vicarious liability, and
constructive discharge. The complaint asserted causes of
action against Rojas-Morin for false imprisonment, sexual
assault, and assault and battery. Mr. and Mrs. Doe sought
damages for physical and emotional pain and suffering;
physical disfigurement; medical bills and expenses; loss of
enjoyment of life; and lost wages and loss of earning
Chang's moved to dismiss the complaint on the ground that
the claims were barred by the exclusive remedy provision of
the Tennessee Workers' Compensation Act at Tennessee Code
Annotated section 50-6-108(a). The trial court denied the
motion, holding that "beating, rape, humiliation, and
violation of an individual's dignity and self- esteem are
not risks inherent to the Plaintiff's work environment at
P.F. Chang's China Bistro."
P.F. Chang's answered the complaint, admitting some
factual allegations and denying others, denying liability,
and asserting numerous affirmative defenses, including that
the "claims are barred by the exclusive remedy
provisions of the Tennessee Worker's Compensation
Act." After engaging in discovery, P.F. Chang's
moved for summary judgment, arguing:
Because Plaintiffs' claims arose out of and in the course
of her employment, workers' compensation is
Plaintiffs' exclusive remedy against P.F. Chang's.
All relevant discovery has been completed in this case, and
it is clear that Jane Doe was performing managerial tasks on
the premises of the restaurant when she was assaulted by a
fellow employee. The incident was not based on personal
spite, ill will, hatred, or anger toward Jane Doe, nor is
there any evidence of actual intent to injure Plaintiffs.
Further, applicable law is clear that rape in the workplace
is exclusively covered by workers' compensation.
support of the motion, P.F. Chang's filed a statement of
eight undisputed facts, each of which was culled from the
complaint. The Plaintiffs responded, disputing two of the
statements of fact. First, as to the statement that
"'After he obtained the money, [the assailant] raped
Jane Doe' in the office at the restaurant, "
Plaintiffs responded by stating "Disputed as stated,
" and setting forth additional details of the rape. As
to the statement that "Jane Doe was physically injured
during the course of the rape and robbery, " Plaintiffs
responded by stating "Disputed as stated, " and
asserting that Jane Doe was injured emotionally as well as
physically. Plaintiffs also filed a statement of 21
additional undisputed facts in opposition to the motion,
taken from the depositions of P.F. Chang's corporate
representative Art Kilmer, Jane Doe, and John Doe, which
Plaintiffs contended "are material to the issues and
create genuine issues of material fact." In its
response, P.F. Chang's disputed all of the additional
statements as "immaterial to the issues presented in
P.F. Chang's Motion for Summary Judgment."
After a hearing, the trial court denied the motion, holding:
[T]his Court finds that Defendant P F. Chang's is not
entitled to judgment as a matter of law because there is at
least a genuine issue of material fact as to whether the rape
and sexual assault in this case can be deemed to have arisen
out of Doe's employment, and for all of the reasons
stated above, this Court specifically finds that the rape and
sexual assault in this case did not arise out of Doe's
employment. For this reason, the Plaintiffs' claims would
not be compensable in this case under Tennessee's
Workers' Compensation Law and the exclusive remedy
provision of the Tennessee Workers' Compensation Act does
not bar this action in tort.
Chang's moved for permission to appeal in accordance with
Rule 9 of the Tennessee Rules of Appellate Procedure and to
stay the action; the trial court granted the motion. This
Court granted P.F. ...