Suing the employer for injuries

Yet another attempt to sue an employer for an extremely unsafe work setting failed with application of the "exclusive remedy" provision of workers compensation.

Historically, employees could sue their employer for negligence if they suffered injury on the job, however, almost all cases were defeated--despite an employer's negligence--by the "unholy trio" of defenses:  either the employee was guilty of contributory negligence, he was injured by a co-worker's negligence, or he had assumed the risk of injury.  Each of these claims, if proven, provided a complete defense to the employer leaving the injured worker (and his family) to bear the consequences of his injury without support.

At the beginning of the twentieth century, state legislatures began addressing this problem by proposing workers compensation schemes.  Typically, as in Michigan, the system provided an employee a limited set of rights (usually including partial pay and all related medical) if he was hurt on the job.  In return for sacrifice of the above defenses, the employer was protected from having to pay more complete damages.

In Michigan, a theory developed that an employer could still be sued for a more complete recovery if he was injured as a result of extreme misconduct by the employer.  If the worker could show that the employer deliberately exposed him to a grossly unreasonable risk, the courts would sometimes make an exception from the "exclusive remedy" provision of the workers compensation system.

In response, in the 1980s, the Michigan Legislature adopted a new provision making the employer immune even from allegations of wilfull and wanton misconduct:  the employer would have full liability for an injury only if it 'intentionally' injured an employee.  There have been several attempts to test the courts' willingness to enforce this statute and none have been successful.  This week, a young worker whose hand was amputated in an employer's machine received a decision from the Court of Appeals in his case.  Despite evidence that the machine lacked proper guarding and had a number of "pinch points", that it had malfunctioned regularly, that he was required to wear ill-fitting gloves, that he had never been trained on this machinery, and that the employer hadn't followed its own policy of 1:1 training until he was prepared to operate the machine, the Court held that he had no recourse against the employer:  it had not acted with a specific intent to injure him.  The case is Lackey v. Michigan Carton, and there will continue to be no real incentive for companies that operate heavy machinery to provide reasonable protections to employees. And good luck to Mr. Lackey finding work to support his family.