Bartender, Hit Me Again

Last week an Australian court found that a restaurant manager qualified for workers’ compensation after he injured his wrist while on the job.  The manager hurt himself while delivering repeated blows to the face of a customer.  Because the customer had been the initial aggressor, the court found that the manager had been injured “out of or in the course of the employment,” entitling him to thirteen weeks lost pay. 

While this was the decision of an Australian court, it’s possible that a California court could also conclude that an employee is entitled to worker’s compensation for injuries sustained while striking a customer.  Like the Australian statute, California employers must also compensate employees for injuries arising “out of and in the course of employment.”  (Lab Code, § 3600, subd. (a).)  Under subdivision (a)(7), where brawling is involved, harms are compensable “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.”  This would include not only injuries suffered from being hit, but also injuries received in the process of striking another.  Salvation Army v. Workers’ Compensation Appeals Board (2004) 70 Cal.Comp.Cases 65, is illustrative.  In this case, the Court of Appeal for the Second District upheld a Workers’ Compensation Appeals Board award to an employee who broke his leg tripping a purse snatcher while at work.  Here, like the Australian case, the employee’s injury resulted from an attempt to inflict harmful physical contact on another. 

In fact, it’s plausible that a California employee could collect workers’ compensation for injuries suffered while striking a customer even where there was no altercation.  No fewer than two San Francisco bars serve a drink called an Ike Turner.  Not to be confused with the gentler Ike Turner cocktail, the Ike Turner served at the Madrone Art Bar and the Buckshot Bar and Gameroom consists of a “shot of Hennessy and a slap in the face.”  A YouTube video suggests that the shot is indeed served with a slap across the cheek.  Ironically, because lack of consent is an essential element of a claim for battery (See BAJI No. 7.50 (Spring 2011 ed.).) and because customers ordering Ike Turners impliedly consent to being struck, bars serving Ike Turners are less likely to be liable for injuries suffered by slapped customers than for injuries sustained by employees while slapping customers. 

If you were injured on the job (whether or not it involved hurting your hand on your customer’s face), the Alameda County Law Library has a number of resources available on workers’ compensation.  Nolo’s California Workers’ Comp is a good place to start for those needing a basic resource written for laypersons.  For those interested in practice oriented titles, the CEB’s California Workers’ Compensation Practice is excellent, as are Matthew Bender’s California Law of Employee Injuries and Workers’ Compensation and California Workers’ Compensation Law.  For those interested in case law and decisions by the Workers’ Compensation Appeals Board, the Library has California Compensation Cases and California Workers’ Compensation Reporter.  And for those on the receiving end of an Ike Turner, we have nothing for you but our sympathy.  

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