Watching for Danger

WASTE INDUSTRY EMPLOYERS WHO THINK having workers' compensation insurance will prevent employees who are injured on the job from suing had better think again.

As a general rule, the only recourse for employees who are hurt in the scope of their employment is to file a claim for benefits under state workers' comp laws. However, when an employer creates or allows a workplace environment that is “substantially certain to result in injury or death to the employee,” the employer risks being dragged into court. [See e.g. Davis v. CMS Continental Natural Gas Inc., 23 P.3d 288 (Okla. 2001) (citing decisions from Alabama, Illinois, North Carolina and Missouri).]

Although what is “substantially certain” will vary among situations, one thing is certain: An employer who creates a danger but then misleads employees about the seriousness of the situation may have to explain his conduct on the witness stand.

Misrepresentation by employers can appear in several ways. For example, an employee may have the right to sue an employer who knows that an existing condition is dangerous but tells the employee that the condition does not exist or the condition is not dangerous. An Illinois appeals court held that employees could sue their employer for misleading them about the harm caused by asbestos dust. [See Handley v. Unarco Industries Inc., 463 N.E.2d 1011 (1984)]

In another case, an employer now and then disabled a workplace ventilation system and misrepresented the potential harm of toxic fumes and the need for safety equipment. A Florida appeals court held that the employees were not restricted to filing workers' compensation claims. [Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (1990)]

To answer a charge of overt misrepresentation, employers have successfully argued that an employee was fully aware of the risk or peril. For example, although the Occupational Safety and Health Administration (OSHA), Washington, D.C., had repeatedly cited Southern Forming Inc. for failing to provide guardrails at an elevated construction site, the widow of the employee could not bring a lawsuit against the employer. According to a ruling by a Florida appeals court, the danger of working on an elevated construction site without a guardrail was, or should have been, obvious to an employee. [Subileau v. Southern Forming Inc., 664 So.2d 11 (1995)]

An employer who conceals a dangerous workplace environment without actually misleading its employees may not claim workers' comp immunity from suit, according to a ruling by a federal district court. [Day v. NLO Inc., 811 F.Supp. 1271 (S.D.Ohio 1992)] On the other hand, a California appeals court upheld a ruling in favor of an employer who had concealed the presence of asbestos in the workplace. The injured worker knew about the danger but decided to return to work. [Davis v. Lockheed Corp., 17 Cal. Rptr. 233 (1993)]

Another type of employer conduct that can open the courthouse doors for injured workers is removing of warning labels and safety devices from machinery. In effect, the employee loses the opportunity to understand the risk of injury. [Tomeo v. Thomas Whitesell Constr. Co., 823 A.2d 769 (N.J. 2003)] Similarly, when an employer hires employees who are unable to read or understand warning labels or instructions about safety devices, the employer may lose workers' comp immunity, according to a ruling by a South Dakota court. [Fryer v. Kranz, 616 N.W.2d 102 (2000)]

Additionally, an employer also can lose its workers' comp immunity by ordering an employee to perform a task that the employer knows is unreasonably dangerous, such as doing the work without safety equipment, and thus is substantially certain to cause injury. [Kilminster v. Day Mgt. Corp., 919 P.2d 474 (Ore. 1994)] Although the employer may not be misrepresenting any danger, the rationale for allowing the worker to file a tort suit is based on the employer having a better understanding of the risks than the employee.

Workers compensation immunity decisions vary by state and are driven by subtle differences in circumstances — even among rulings by courts in the same state. The would-be plaintiff who wants to side-step the workers' compensation process in favor of directly suing the employer faces a considerable burden. Courts are hesitant to let claims that can be processed by state workers' compensation agencies further clutter their dockets.

Thankfully, relatively few employers insist on putting profits and productivity ahead of worker safety by misrepresenting or ignoring workplace dangers. Those who do give a dramatic reminder of why employees need recourse to a system that can provide more just compensation.