Warehouse fighting has a long and inglorious history in the annals of employment law. This recent Small Claims Court matter adds another chapter, or perhaps a footnote, to that history. In Peng v. Ferguson, the Court was faced with the question of whether one co-worker kicking another in the butt, excused a retaliatory punch in the mouth.
The facts are relatively simple, if uncertain. The individual defendant, Mr. Ferguson, was working in the shipping and receiving department of the corporate defendant, Cape Contract Furniture Inc. (the matter was discontinued as against the corporate defendant before trial). Mr. Ferguson’s job involved packing furniture into boxes. The Plaintiff, Peng Li, was his co-worker. Li and Ferguson had been at odds for some time, with Li suspecting Ferguson of theft and other assorted wrongdoing, and Ferguson trying to avoid Li. Li harbored some bitterness that Ferguson’s pilfering was tarnishing Li by association in the eyes of the employer. Li was extremely conscientious, and prided himself on his work ethic. Ostensibly, Li and Ferguson were friends, but “odd friends” as it was put by their manager in the police report.
On the day of the incident, Li decided to confront Ferguson by getting in his face about something, although the specifics were unclear on the evidence. Ferguson alleged that Li was so agitated, and so far inside Ferguson’s personal space, that Li’s spittle landed on Ferguson.
What happened next isn’t clear, but the trial judge found that at some point Li kicked Ferguson in the butt. The kick did not cause any physical harm to Ferguson. However, Ferguson responded by punching Li in the face at least twice, and Li alleged that he lost his two front teeth as a result. Li claimed $7,000 in damages for the loss of his two front teeth, and special damages for mental distress. He was diagnosed with post-traumatic stress.
The Court found that Li had effectively consented to fighting Ferguson by initiating the contact with his kick to the butt. Having initiated the contact, the resulting punch to the mouth was a reasonably foreseeable outcome. While this did not excuse the assault by Ferguson, it did have the effect of completely mitigating Li’s claim, which was lacking expert evidence regarding the nature of the required dental work. The remoteness of Li’s claim for mental distress damages was also cited in dismissing the claim.