Construction Law Notes
Edward J. Kinberg, Esq.
Melbourne, Florida

Beyond Worker's Compensation
Direct Contractor Liability for Job Related Injuries

Introduction

This month, I will discuss how an employer may become directly liable to an employee for a job site injury. In reading this article, you must keep in mind the fact that each state has its own workers compensation laws and interpretations of those laws. Accordingly, it is essential that you seek the advice and assistance of someone familiar with the rules that apply in the state in which an injury occurred.

The Basic Rule

As a general rule, workers compensation statutes are designed to provide prompt financial relief to employees injured by an "accident" during the course and scope of their employment. By making the statute the exclusive remedy, the employee and employer are able to avoid expensive and time consuming litigation.

In effect, both sides give up some rights in return for a degree of certainty as to the financial consequences of an injury. In effect, the employee gives up its right to sue the employer in return for the certainty of payments under the statute. In return, the employer gives up its defenses to payment in return for having a "fixed" amount of money at risk to cover job related injuries.

The Problem

As a general rule, workers compensation statutes prevent an employee from bringing a legal action against an employer for a job site "accident." However, most states allow an employee to bring a direct action against the employer if the injury occurred because of an "intentional" act of the employer. In this regard, an employee must show;

An employer engaged in an intentional act designed to result in an injury, or
An injury was substantially certain to happen because of the employers actions or failure to act.
If an employee successfully establishes either of the above, he/she may be able to recover substantial damages directly from the employer. In essence, the courts seem to be saying that workers compensation statutes are based on the principal that an employer will act with "good faith" in ensuring a reasonably safe job site. If the employer does, it is protected from direct liability by the workers compensation statue. If the employer does not, it may be forced to pay damages to the employee because of its failure to act in "good faith."

The Analysis

In determining whether an injury arose from an accident, most attorneys will examine the following issues.

Did the employer fail to comply with federal (OSHA) and state safety regulations?
Did the employer fail to warn the employee of known defect or hazard which posed a grave threat of injury?
Did the employer's safety practices vary from the industry standard?
Did the employer deviate from accepted safety standards in order to push the job along?
Did the employer, or any his/her supervisory staff, make negative comments or joke about job site safety?
Did the employer ignore warnings about the existence of a dangerous condition?
Did the employer know its working conditions created an unreasonable degree of danger and fail to warn employees or take appropriate protective measures?
While the most obvious violations involve OSHA standards, such a violation, in its self, is not generally sufficient to show that an employer intentionally caused the injury. A violation of the statute is simply one fact, which may lead to direct liability when combined with other facts.

However, for many attorneys, an employers failure to comply with OSHA standards will cause them to perform a rigorous examination of the facts leading up the injury. It is not unusual to find that a failure to comply with state or federal statutes is a sign that the employer had a "bad attitude" about safety. If an attitude problem is discovered, a good attorney will be able to convince a court the employer knew an injury was substantially certain.

Protecting Your Company

The most effective protection against direct liability is rigorous enforcement of state and federal safety standards. In addition, you should have your own safety program and ensure your workers are well trained in appropriate safety standards. A lawyer is going to have a hard time getting a verdict against a company that vigorously pursues job site safety on a daily basis.

While enforcement of federal, state, local and internal standards may seem expensive and time consuming, it is far less costly and time consuming than a serious injury followed by extensive litigation and the possibility of a large judgment against your company. Your best defense is an aggressive and public stance on safety.

Ensuring your workers have a safe work place is the most effective tool you have for protecting your company from personal injury claims.