Kathleen Roberts, Managing Shareholder of SRTK’s San Jose office, recently won big for a client, earning a Take Nothing in a case where an employee got into an altercation with a supervisor, and claimed an injury when the scuffle moved to the elevator. The claim was denied based upon the initial aggressor affirmative defense under LC3600(a)(7).
Applicant had been employed for two days when she broke the rules of the memory care center by giving some juice to a patient. She had already been late for work both days, and her supervisor was watching her closely in case of an incident. The supervisor called Applicant out for giving the juice to the patient, whereupon Applicant stormed off to the elevator to go downstairs to the office, supposedly, to quit. She couldn’t get into the elevator on her own as it required a key. The supervisor walked with her to the elevator while they yelled profanities at each other as the situation escalated. When they got to the elevator, Applicant turned and threw a cup of coffee on her supervisor while uttering a racial epithet. She claimed the supervisor then rushed into the elevator car and slammed into her, pushing her back and head into the wall.
Police were called, and both were arrested for battery and terminated. The supervisor testified at trial that she did not touch Applicant. Applicant claimed intermittent TD, but had no visible signs of injury at the industrial clinic. At trial, Applicant’s statements were not consistent. The defense’s witness was very steady and credible, and the Workers’ Compensation Judge awarded a Take Nothing based upon the affirmative defense.