Can I Sue My Employer for Negligence?

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It’s tempting for workers injured on the job to assume that the workers compensation system prevents them from suing their employer for negligence.

After all, the very premise of  workers  comp is that it’s a “no-fault” insurance system designed to compensate employees quickly and fairly without having to sort through the often-thorny question of “blame.” Employees are guaranteed workers comp benefits, albeit limited, for lost wages and medical expenses, and employers are shielded from legal liability in return for paying into the insurance system.

It’s what is known as the “compensation bargain,” but that bargain doesn’t always hold when issues of “gross negligence” or other blatant wrongdoing by an employer or another party comes into play. Just ask Goodyear Tire and Rubber Company and the family of Carl Rogers, who worked at the company’s Tyler, Texas, factory from 1974-2004.

Rogers was exposed to asbestos during his years at the plant and died from mesothelioma in 2009. Even though Goodyear was covered under workers compensation insurance, Rogers’ widow and children successfully sued the company for “gross negligence,” ultimately winning a jury award of $2.89 million (which was reduced on appeal to $1.15 million).

To be sure, the “no fault” provision makes lawsuits in workers comp cases rare. Mark Berg, an attorney who has specialized in workers  comp cases for 26 years in the San Francisco Bay Area, estimates that only about 5% to 10% of workers  comp cases result in lawsuits — often when a debilitating injury is involved and the initial workers comp claim was denied.

But while cases like Goodyear Tire & Rubber Co. v. Rogers are the exception rather than the rule when it comes to workplace-related injuries or illnesses, it’s nevertheless an important guidepost for workers who believe they have grounds to sue their employers or others for recklessly jeopardizing their health and safety even when they’re subject to workers comp laws.

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When You Can Sue for Negligence

While workers comp generally protects employers from liability in injury cases, that’s not true for other responsible parties, be it another business entity, a customer or random member of the public. Rarely if ever in our modern 21st century economy do employees and employers find themselves operating in a bubble walled off from the rest of the society. They routinely encounter third parties, which brings with it the potential for any number of maladies.

Welcome to the world of third-party lawsuits, our first example of when an employee subject to workers comp insurance can nevertheless sue for damages.

Third-Party Lawsuits

No matter where you work – a restaurant, the airport, a construction site or any office building – people are coming and going at all hours of the day and night. And accidents happen. Somebody gets injured, sometimes seriously, and they want compensation for their pain and suffering.

You can’t get that from workers compensation, but you might if you file a third-party lawsuit.

Third party accidents happen when someone other than your employer causes an accident because of negligence or reckless actions. Most of them involve vehicular accidents, but there are other situations – slip and falls, construction site accidents — that result in the injured party going to court to try and collect.

In some cases, even if the injured party is receiving workers compensation medical and wage benefits because of the accident, he/she still will file a third-party lawsuit.

To win the third-party lawsuit, the injured person has to prove that the third party violated its responsibility for taking steps to avoid causing harm to others.

It’s a tough standard to meet, but some people do win those suits.

If they do win, they usually must use their award to pay back whatever benefits they took from workers compensation. A lot of times, that makes the transaction a wash. There isn’t much money left after they repay the medical bills and lost wages they took.

So, think hard about whether a third-party lawsuit an avenue worth pursuing. There are no guarantees you’re going to come out ahead.

Gross Negligence

Whether the negligence is on the part of the employee or employer is irrelevant under workers comp. It’s only when an argument can be made that employer negligence rises from the garden to the “gross” variety that things can get dicey for the company.

That was the case in the Goodyear Tire and Rubber Co. suit mentioned earlier.  “Recovery of workers compensation benefits is the exclusive remedy of an employee for a work-related death, unless the death was caused by the employer’s gross negligence,” Texas Court of Appeals Justice Bill Whitehill wrote in his opinion.

Goodyear argued at trial that the evidence presented of asbestos exposure failed to meet the legal requirements of “gross negligence,” but the Texas courts disagreed. In his opinion, Whitehill explained the two legal criteria for determining gross negligence on the part of an employer: an act or omission that involves “an extreme degree of risk, considering the probability and magnitude of the potential harm to others”; and that the employer “had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.”

While the precise definitions of gross negligence may vary somewhat from state to state, the criteria are largely the same. Whereas a typical case of negligence may consist of an oversight or lack of diligence in protecting workers, gross negligence reflects a thoughtless and blatant disregard for worker safety. An example would be a contractor failing to provide hard hats to a construction crew for cost reasons, even though it knows full well that the hard hat could potentially save a worker’s life.

In his experience, gross negligence suits are rare and difficult to prove, Berg said. In more than a quarter century of litigating workers comp cases, he estimates that he’s won settlements in only half a dozen gross negligence suits. One involved a nurse who was ordered to drive her car to an appointment even after she had informed her employer that she was sick and in no condition to drive. She got into an accident and suffered a significant neck injury.

“It’s a harder standard,” Berg said of gross negligence. “You have to essentially show it was either intentional or, through ignorance, it was willful.”

Another gross negligence case that Berg currently is litigating involves a worker who attended a party put on by his employer where alcohol was furnished. The employee’s boss then gave the worker the keys to a motorcycle, resulting in a DUI crash that caused debilitating injuries. The employee’s workers comp claim was initially denied because the employer disputed that the injury was work-related.

There are also cases where an injury suffered from a manufacturing defect can result in a gross negligence suit against the employer, Berg said, if there’s evidence that the employer knew of the defect and ignored it. He pointed to the example of a roofer who is injured while working on a defective ladder.  “You can have a suit against the manufacturer of  the ladder or perhaps the employer because it didn’t check the ladder or put someone out with faulty equipment,” he said.

Before pursuing a lawsuit for gross negligence, employees should not only weigh the challenges in proving such a case, but also keep in mind that state laws vary, and  some do not even permit such suits by workers who are covered by workers comp insurance.

When Can You Sue Your Employer?

Beyond issues of gross negligence on the part of an employer or actions of a third party, there are a few other situations where workers may have grounds to sue for workplace-related injuries.

No Workers Comp Insurance

Employers are mandated to provide workers  comp insurance in every state but Texas (where they can opt out of the system and write their own workplace-insurance plans). A few states also exempt some small employers from having to offer workers comp if they employ fewer than a specified number of employees, though most require it regardless of the number of people employed.

But being required to do something and actually doing it are two different things. It’s not uncommon to find employers that fail to provide workers comp coverage, Berg said, either because they’re ignorant of the law or decide to flout it.

“A lot of times it’s smaller, unsophisticated outfits,” said Berg, adding that while most employers are aware of their responsibility to provide workers  comp insurance, some invariably try to get away with not purchasing it.

Workers who are injured working for an uninsured employer can seek reimbursement through special state funds set up to compensate workers. But the compensation available through such funds is limited. By suing their employer, however, they can win not only the standard benefits available through workers  comp but also potentially additional damages for pain and suffering, full and future lost wages, etc. Employers that fail to meet their legal requirements to carry workers comp insurance can also be hit with significant fines and penalties.

Retaliatory Discharge

Remember the old saying: “Paybacks are hell!” Well, they can be for employers who fire someone for filing a workers compensation claim.

That is called “retaliatory discharge” and there are cases – not many, mind you – where the employee was able to prove that the only thing they did wrong before getting fired, was file a workers comp claim.

The Illinois Supreme Court spelled out the conditions for a retaliatory discharge suit in the case of Clemons v. Mechanical Devices Co.:

  • The person was an employee before the injury;
  • The worker exercised a right granted by the Workers Compensation Act;
  • The worker was discharged and the discharge was causally related to his filing a claim under the Workers Compensation Act.

Generally speaking, employers hold the upper hand in these cases because they don’t have to give a reason for firing someone. Even if they do, they have found plenty of ways to cover themselves.

Still, if you can show a pattern of employees being let go soon after they filed a workers comp claim, there is some hope for you.

Assault by Your Employer

Workers comp insurance doesn’t protect employers from legal liability if they assault an employee. A worker who is injured as a result of an assault by his or her employer can sue for compensation above and beyond what’s included through workers comp, such as full lost wages, pain and suffering, and in extreme cases, punitive damages.

However, the ability to sue an employer for an assault-related injury does not extend to assaults by co-workers or other company employees. In those cases, the worker would need to sue the perpetrator of the assault individually to collect damages beyond what’s available through a workers comp claim.

One exception, however, is the “doctrine of ratification,” where an employer can be found guilty of “ratifying” an assault by one of its employees by either condoning behavior that led to the assault or failing to take appropriate action to prevent it. The doctrine was invoked in a 1993 lawsuit against Quality Hotels, Inns and Resorts when a security guard sued the company after his supervisor allegedly pointed a gun at him and threatened to “blow (his) head off.” A jury found that Quality Hotels had ratified the assault because the hotel manager was aware that the security guard’s supervisor possessed guns on hotel premises in violation of the employer’s policy and was present when the supervisor had been arrested previously for assaulting another employee.

California courts have also held that employers can be held civilly liable as a “joint participant” in an assault carried out by one of its employees through the doctrine of ratification. In the 1983 case of Iverson v. Atlas Pacific Engineering, the Court of Appeals of California ruled that workers  comp laws did not prevent the plaintiff from suing Atlas on allegations that it “ratified” abusive conduct by an employee who set up a steel horseshoe target above the plaintiff’s head, forced him to remain in confined quarters against his will, and repeatedly pounded a large sledge hammer against the target. As a result, the plaintiff allegedly suffered hearing loss, mental anguish and physical pain and suffering.

Why You Typically Can’t Sue an Employer for Negligence

Workers comp insurance may seem an outgrowth of the Industrial Revolution when workers suddenly found themselves surrounded by dangers ranging from powerful machinery to toxic chemicals. But in reality, its roots extend back to antiquity when the Law of Ur in Samaria provided monetary compensation for injuries to workers’ body parts. Fast-forward to the 19th century, when Otto von Bismarck created the first modern workers comp system in 1884 in what was then called Prussia, with its tenet of “no-fault” insurance. The system slowly caught on in the United States over the ensuing decades, with Mississippi becoming the last state to legislate workers comp in 1948.

The appeal of workers comp from an employer, worker and societal perspective is simple. It was designed as a streamlined, low-cost system to compensate employees who are injured on the job without requiring workers or employers to endure the time-consuming, costly exercise of determining blame.

The convenience the system provides also comes with trade-offs for both sides. Employees are only entitled to compensation for lost wages and medical bills, not pain and suffering or punitive damages stemming from alleged negligence on the part of the employer. In exchange for paying the cost to provide workers comp insurance to their employees, employers largely avoid the risk of mammoth damage awards, however rare, that could result from most forms of negligence.

Mark Aldrich, professor emeritus of economics at Smith College in Massachusetts, who has written extensively on the history of workplace safety, points to the example of a worker who stepped on a nail protruding from a board at a textile factory in the early 1900s to illustrate how the workers comp system fundamentally altered the nature of compensating employees for workplace-related injuries. The worker, who was injured before workers comp had come into practice, sued for compensation but lost on grounds that she should have been watching where she stepped.

“There’s a certain truth to that, but you could also say maybe the company should pick up the board and nails,” Aldrich said. “Routinely, companies would not be found liable for those things, with the occasional spectacular exception.”

That all changed when workers comp laws were passed and removed the blame game from workplace injuries. Before that, employees who were hurt on the job had routinely found themselves fighting with employer-liability insurers over who was at fault for the injury. And that was only if they had the means and willingness to press the matter at all.

The risk of injury had generally been considered a condition of employment in the 19th century, Aldrich said, making it difficult for employees to win battles for compensation, though, as he noted, there were “spectacular exceptions.” And at a time when progressive politics and even socialism were growing in appeal among the working class, the growing frequency of debilitating and at times fatal injuries on the job was giving corporations a black eye in the eyes of the public.

For those reasons, it behooved both employers and employees to embrace a no-fault system for compensating employees that would both guarantee workers some level of compensation regardless of the party responsible for the injury, while limiting and specifying the financial costs to employers.

Perhaps most significantly, the advent of the workers comp system, said Aldrich, ushered in a revolutionary transformation of the culture surrounding workplace safety, with corporations establishing safety departments to make factories and plants safer and instruct employees in safe work practices. Suddenly, companies saw the importance of placing guards around saws, or creating a stamping press that required both hands to fire, thereby preventing a worker’s hand from being trapped underneath.

“Workers comp really did give an impetus to the work safety movement in the United States,” Aldrich said. As a result, data show that workplace injuries and fatalities sharply declined after workers comp insurance became standard, he said.

That may be the most important and legacy from a system that largely removed lawsuits from the realm of workplace injuries. But, as we saw from the examples above, it didn’t completely take lawyers out of the equation or negate workers’ ability to seek damages above and beyond what could be obtained through workers comp.

About The Author

Craig Lazzeretti

Craig Lazzeretti is a career journalist based in the San Francisco Bay Area. He spent 25 years with Bay Area News Group (publisher of The Mercury News and East Bay Times) in various roles, including as a business/personal finance editor and an assigning editor on its Pulitzer Prize-winning coverage of the 2016 Ghost Ship warehouse fire. Since 2018, he has worked as an independent writer and editor, contributing to the USC Annenberg Center for Health Journalism, the sports website and the nonprofit California news site CalMatters, among other outlets. Craig can be reached at


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