April 23, 1998

Adults beware toy guns

By ANDREW BERGH
Special to the Journal

Toy guns are just toys. But as shown by Henson v. Crisp, it's a lot different when an adult packs a play pistol. In that case, the issue was whether a Spokane County woman could recover emotional distress damages allegedly suffered when her boss "fired" a toy gun at her as a practical joke.

The Henson case involves an incident that took place at a Payless Drug Store.

Angeles Henson had been a sales clerk for Payless about 11 months when she reported to work as usual. After taking her morning break, Henson returned to her workstation and saw a realistic-looking toy gun on the counter. Even though it resembled those sold in the store, she asked her immediate supervisor, Corrine Haney, why the toy gun was there and what she should do with it. Haney answered by sending for Tate Crisp, the assistant store manager.

When he arrived, Crisp said he was the one who put the fake firearm on the counter. He then picked it up, pointed it at Henson, and cocked and "fired" it. While doing so, Crisp laughingly said, "It's a toy." Henson, unfortunately, didn't hear him.

Unbeknownst to Crisp, Henson had deep-seated fears about guns and violence. Her phobia stemmed in part from the fact her brother had been injured in a knife attack a couple of years before. It also didn't help that a shoplifter had recently been caught in the store with a gun in her purse. Consequently, when she saw Crisp possibly firing a real gun at her, Henson had a sudden onset of chest pain and fell to her knees.

Once back on her feet, Henson was taken to a nearby hospital and treated for nervous distress. She later filed a worker's compensation claim with the Department of Labor and Industries and received wage loss benefits for two and a half months. Because of problems with sleeplessness and nightmares, Henson also underwent therapy and counseling for 12 months.

During her tenure at Payless before the incident, Henson had always enjoyed cordial and professional relations with Crisp -- and even been promoted by him. Moreover, the night it occurred, Crisp called Henson at home and apologized, telling her it was a joke and that he'd meant no harm. It must have been too little, too late, however, as Henson later filed a damages suit against Crisp and Payless in Spokane County Superior Court.

Under Washington law, an employee normally can't sue her employer for work-related injuries. Instead, the so-called exclusive remedy rule restricts an injured employee's recovery to worker's compensation benefits. Invoking an exception to this rule, Henson claimed that her emotional distress had been intentionally inflicted by Crisp.

The sales clerk eventually got her day in court in early 1996. Well, sort of. After Henson rested her case, the defense moved to dismiss on the ground she had failed to present enough evidence of an intentional injury. When the trial court agreed, Henson's lone recourse was to appeal.

There was apparently no dispute Henson had suffered prolonged emotional distress following her former boss's prank. Rather, the case hinged on whether Henson had adequately proven that her anxiety resulted from a deliberate injury.

On this point, Henson made a logical argument. There was no question, she observed, that Crisp had intentionally pointed and "fired" the toy gun at her. By doing so, the manager had intended, at the very least, to produce a "mild startled response." Henson thus claimed that since Crisp had intended the kind of injury she suffered, the fact he didn't intend the extent of injury was irrelevant.

But the appeals court wasn't swayed.

By a 3-0 margin, the appeals court ruled that to avoid the bar of the exclusive remedy rule, an injured employee must show that the injury -- not merely the conduct of the employer -- was intentional. For instance, if Henson had shown Crisp was aware of her sensitivity to guns, or that he'd previously exhibited "ill will or harmful conduct" toward her, it would have been proper for the jury to decide liability. But since Henson had only proven (at most) that Crisp was guilty of gross negligence, the court said she had no basis for an independent claim against Payless.

The lesson to be learned is that one shouldn't joke with guns, whether play or real. Here, however, it was Payless, not Henson, who actually dodged the bullet.

Previous columns:

• Check your moose policy, 04-02-1998
• An intriguing battle for the custody of 'R', 02-12-1998
• Some immodest proposals, 01-22-1998
• The age of criminal capacity, 01-08-1998
• Dastardly communications, 12-25-1997
• Don't hold your breath, 12-11-1997
• The swift, sure hand of justice, 11-27-1997
• A surgical cut in alimony, 11-13-1997