One of the most common situations I see as a personal injury lawyer involves people injured at work because their employer blatantly disregarded OSHA safety regulations. Most everyone knows that workers’ compensation laws provide employers with legal immunity from negligence claims, but common sense suggests that employers remain accountable for reckless or intentional wrongdoing. The law, however, doesn’t always line up with our common sense of ethicals and morals. We’ve been successful in the past holding employers and other companies fully accountable despite the workers’ compensation laws, but unfortunately the law sometimes makes it difficult to hold the employer accountable for the full scope of the harm they cause. That’s why this post is about holding companies other than the employer responsible after an injury. Even if workers’ compensation isn’t enough, many times there are other companies responsible for the death — like general contractors, subcontractors, and companies involved with machinery and equipment — and Pennsylvania law can hold those companies accountable. I’ve litigated and taken to jury trial cases just like this in the Philadelphia Court of Common Pleas.

Over at reddit yesterday, a user posted a question under the title My mother was brutally killed at work, is there no chance for justice?

My mother was crushed to death at work, the OSHA report indicates 3 SERIOUS violations on the part of her company and a dozen minor violations. Total Fine: ~$15,000. She was alone when it happened, it wasn’t her duty to be anywhere near the storage area, the guy whose job it was to move the product quit a few days prior and she was essentially told to do his job (without ANY training) or else. Wtf? Its been 7 months now, I’ve spoken to 11 different lawyers with my step father, all of whom said that it wasn’t possible to file a case against them because of labor laws… We just found out today that as of last year the KY legislature passed a bill that stopped any death benefit payments because in a few months my step dad will be 62(age of retirement). My mom was only 50. So not only can we not pursue legal action against the company, but the government death benefit is out the window too.

Am I … insane? Is this some third world Chinese factory? Wtf… Why is this allowable in the US? So this multi-million dollar company pays just 15k in fines and that’s it. No other punitive damages. We cannot pursue any legal action?

It’s a depressingly common situation that we see all the time: some industrial plant or construction site flagrantly violates OSHA safety rules, kills or maims a dedicated employee, and then pays a fine somewhere around the price of a compact car.

Recall the Notre Dame football practice tragedy. Indiana’s Department of Labor, Occupational Safety and Health Administration found that Notre Dame had committed multiple safety violations in the training and use of its scissor lifts to videotape football practice, including:

Knowing violation – By directing its untrained student employee videographers to use the scissor lifts during a period of time when the National Weather Service had issued an active Wind Advisory with sustained winds and gusts in excess of the scissor lift’ s manufacturer’s specifications and warnings, the university knowingly exposed its employees to unsafe conditions.

Serious violation – Notre Dame did not properly train the student employees in the operation and use of the scissor lifts used during football practice.

Serious violation – The scissor lift noted in this incident – owned by Notre Dame – had not been given an annual, monthly, or weekly inspection for more than one year.

Serious violation – Notre Dame did not have the scissor lift it owned serviced as required by the preventive maintenance schedule in the operator’s manual.

Serious violation – Notre Dame did not have an operator’s manual kept on the unit it owned in the weather proof box.

Serious violation –The scissor lift noted in this incident – owned by Notre Dame – was missing some of its warning labels and some labels were faded and weathered.

Total fine? $77,500. And that’s in an egregious, high-profile case that killed a 20-year-old. It was one of the highest fines the Indiana OSHA had levied in years.

It’s thus no surprise to me that the company that killed the reddit poster’s mother was fined only $15,000 for three serious violations. As the federal OSHA website explains:

Serious Violation – A violation where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to $7,000 for each violation is proposed. A penalty for a serious violation may be adjusted downward, based on the employer’s good faith, history of previous violations, the gravity of the alleged violation, and size of business.

Up to $7,000 for a serious violation that could — and did — kill someone. In this case it seemed the company ordered an untrained employee to handle, alone, some hazardous chemical or equipment, and the penalty is less than the cost of a new Mazda 3.

Which brings us to the core of the redditor’s complaint: that there’s nothing at all they can do to hold the employer accountable. 

In general, that’s true: if an employer has paid into the workers’ compensation system and obtain adequate insurance, then they’re immune from further liability. The employee files a claim for the effectively no fault insurance, and the employer walks away. On the whole, it’s a good system, a system far better than the heinous legal rules of the late 19th and early 20th century that invented excuses left and right to prevent injured employees from recovering compensation. But the workers’ comp system can create its injustices, most notably the “moral hazard” it creates. If employers in dangerous situations don’t have a financial incentive to keep things safe, then their only financial incentive is to get things done cheaply and quickly, and that’s how they’ll do it. “Safety Third,” as Mike Rowe from Dirty Jobs says.

Adding insult to injury, an injured worker can be stuck in the workers’ compensation system — a system intended to guarantee compensation and eliminate the need for lawsuits and lawyers — and still need a lawyer. The workers’ compensation insurance companies aren’t too keen on paying out money to anyone, law or no law, and so they’ll usually deny as many medical benefits as they can (brain injuries and spinal cord injuries are almost as a rule always “untreatable”), assert that the workers have to go to certain “approved” physicians, and then offer a low ball lump sum settlement for the injured employee to go away.

It’s a disturbingly litigious world considering that the whole point was to remove the uncertainty and burden of litigation — “the salutary purpose of workmen’s compensation [is] to provide relief due to injuries caused in the workplace … [with] the ultimate goal of making the injured employee whole,” St. Joe Container Co. v. WCAB, 633 A.2d 128 (Pa. 1993) — but then again, in the workers compensation system, employers no longer face the difficulty of litigation, only employees do. Workers’ comp is more fair than what we had a century ago, but it’s not perfect, either.

It’s unsurprising, then, that personal injury lawyers try hard to avoid the workers’ compensation system, particularly in wrongful death cases, where there aren’t any medical care expenses going forward. Common sense would suggest, and the redditor seems to agree, that employers not be able to claim immunity for willful violations of OSHA safety regulations. After all, workers’ comp is a form of insurance, and in many states, like Pennsylvania and New Jersey, you cannot get insurance for intentional conductUnited Services Auto. Ass’n v. Elitzky, 517 A.2d 982 (Pa. 1986)(“it is against the public policy of this state to provide insurance for certain intentional acts. This ruling is based on the common law adage that a person should not profit from his wrongful acts”); Ambassador Ins. Co. v. Montes, 388 A.2d 603 (N.J. 1978)(“were a person able to insure himself against economic consequences of his intentional wrongdoing, the deterrence attributable to financial responsibility would be missing.”).

But applying that same argument to on-the-job injuries — i.e., the argument that an employer shouldn’t be able to hide behind workers’ compensation immunity when they willfully breached safety regulations and protocols — only works in some states. Poyser v. Newman & Co., Inc., 522 A.2d 548 (Pa. 1987)(“There is no … provision in The Pennsylvania Workmen’s Compensation Act” which “expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing”); compare with Laidlow v. Hariton Mach. Co., Inc., 790 A. 2d 884 (N.J. 2002)(where “an injured employee claims that his employer has removed a safety device from a dangerous machine, knowing that the removal was substantially certain to result in injury to its workers and, in addition, deliberately and systematically deceived safety inspectors into believing that the machine was properly guarded, … the employee’s allegations, if proven … [entitle] the employee to pursue his common-law remedies”).

It is usually so difficult to sue an employer even for reckless and wanton conduct — the small exception in New Jersey notwithstanding — that most lawyers don’t even try. Generally, then, when a worker is injured on the job, lawyers take a two-pronged approach. First, the workers’ compensation lawyers focus on the progression of the no-fault claim against the employer’s insurance company. Second, the personal injury lawyers focus on finding someone other than the employer who may have been at fault. (I note here, as a political aside, that recent changes to Pennsylvania’s joint and several liability law will make this much harder to do.)

We see a lot of recurring fact patterns, with common legal theories underlying each. When a subcontractor’s employee falls in a roof or floor collapse, we look to the general contractor’s on-site safety responsibilities and the architects, engineers and builders of the structural supports. When something explodes or catches fire, we look to the manufactures of the tanks, pipes and gauges, and if a company other than the employer was supposed to maintain them.

For the redditor, it seems like his mother was asked to move a heavy or dangerous product without any training. In that case, because we likely wouldn’t be able to sue her employer, we’d look to the manufacturer of the product or the equipment used to move it, to see if they were prone to tip over, if they lacked adequate warnings, and the like. Maybe she was using a lift that was unbalanced or which failed. Those are the types of issues I would expect the lawyers he contacted to look into.

As I’ve explained in a post about workplace injury lawsuits,

In these types of cases in Pennsylvania, the key legal issue is often: does that company have a legal duty to keep people safe if those people aren’t their employees? To answer this question, courts often look to the Pennsylvania Supreme Court case, Althaus ex rel. Althaus v. Cohen, 756 A. 2d 1166 (Pa. 2000).

As the Althaus case said, “The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution.”

However, the Pennsylvania Supreme Court has also said “It is not necessary to conduct a full-blown public policy assessment [like that required by Althaus] in every instance in which a longstanding duty imposed on members of the public at large arises in a novel factual scenario.” For example, in cases involving unusually dangerous equipment or activities, like electrical power lines, there is no need for a court to go through the Althaus factors, because an electric supplier’s high duty of care to persons lawfully in proximity of the electrical lines has been recognized in this Commonwealth for well over a century.

In most complicated workplaces, there are multiple corporate entities involved. There’s the landowner, the general contractor, the subcontractors, the independent contractors, and any other companies brought in to assist. If the injury involves machinery or equipment, then there’s also the manufacturer of the equipment, any companies that refurbished the machinery, and any companies that service the equipment. All of these companies owe a legal duty to be reasonable and to put safety first, and they are accountable when they do not.