Hazardous and Unsafe Conditions – Setnor Byer Insurance & Risk

Is Your Self Storage Facility a Hazardous Workplace?

The fact that self storage facilities aren’t typically considered dangerous workplaces doesn’t mean operators can be casual about workplace safety. According to the most recent statistics from the Bureau of Labor Statistics, of over 3 million private industry nonfatal reportable injuries and illnesses in 2013:

917,100 involved days away from work
327,060 involved sprains, strains and tears
170,450 involved injuries to the back
229,190 involved falls, slips and trips.

Though employees are the primary victims of poor workplace safety standards, self storage facilities also pay the price. In addition to direct costs associated with workplace injuries, self storage facilities may also incur a variety of indirect costs, such as:

Wages paid to absent injured workers;
Wages lost during work stoppages;
Administrative time spent by supervisors following injuries;
Costs to train replacement employees;
Lost productivity and opportunity costs;
Replacement costs of damaged material, machinery and property; and
Higher workers’ compensation insurance premiums.

Self storage facilities can avoid or at least limit these costs by making workplace safety a priority. The Insurance Information Institute suggests taking the following steps:

Engage Management and Employees. Workplaces are safer when management and employees collaborate. Though specific employees should be in charge of safety programs, everyone should be responsible for workplace safety.

Evaluate Workplace and Operations. Perform a comprehensive evaluation of the entire operation, including equipment and all workplace activities, to identify all hazards. Talk to employees about their safety concerns.

Mitigate Hazards. Identified hazards must be eliminated or controlled. This may require implementing new safety measures, changing workplace operations or repairing/replacing equipment.

Training. Employees should receive training about workplace hazards and safety. Training should be part of the onboarding process. Refresher training should be provided on a regular basis and as needed.

Review, Respond and Improve. Maintaining a safe workplace is an ongoing process. Safety programs must be reviewed regularly. Safety incidents should be used as an opportunity for improvement. Employees should be reminded of their obligation to report hazards and incidents so they can be addressed.

Creating and maintaining a safe workplace requires commitment and vigilance. Despite the extra effort and expense, self storage facilities are sure to benefit from an effective workplace safety program. For example, maintaining a safe workplace is the best way to control workers’ compensation insurance premiums.

Setnor Byer Insurance & Risk’s Self-Storage Insurance Program and Risk Management Group work closely with self-storage facilities throughout Florida and nationwide to profile risks, compare coverage options, and match our clients with an insurance program that meets their needs.

If you have any questions or would like discuss how our programs can help your organization, please contact us

Making the Most of National Electrical Safety Month

Protecting your family, home and property is a full time job. Unfortunately, busy schedules often get in the way of making safety a top priority. Since May is National Electrical Safety Month, now is a good time to discuss electrical hazards and review effective safety practices.

According to the Federal Emergency Management Agency (FEMA), electrical malfunctions are a leading cause of residential building fires. In 2011, there were 26,800 residential building fires caused by electrical malfunctions that resulted in 280 deaths, 1,200 injuries and over a billion dollars in property loss. FEMA reports that residential building electrical fires cause more injuries, death and damage than all nonelectrical residential fires combined.

Steps can be taken to avoid becoming another tragic statistic. For example, since the average home in the United States was built in 1974, the Electrical Safety Foundation International (ESFI) recommends installing updated home safety devices that are designed to meet today’s electrical demands. The following items, for example, can greatly increase electrical safety.

Tamper Resistant Receptacles

Curious kids and electrical receptacles (outlets) are a dangerous combination. Tampering with electrical receptacles causes an estimated 6 to12 child fatalities and 2,400 severe shocks and burns every year. Those relying on plastic outlet covers to protect their children should know that a Temple University study found that 100% of 2 to 4-year-old children were able to remove plastic outlet covers in less than ten seconds.

A Tamper Resistant Receptacle (TRR) has spring-loaded shutters that cover the contact openings, or slots, of the receptacles. These shutters only open when both springs are compressed at the same time. The shutters will not open when a child attempts to insert an object into only one contact opening, so there will be no contact with electricity. According to the ESFI, the cost of installing TRRs in new homes is about 50 cents more than installing traditional receptacles, and the cost of retrofitting existing homes can be done for about $2 per outlet.

Ground Fault Circuit Interrupter

A ground-fault occurs when there is a break in the grounding path that may cause the electrical current to take an alternative path to the ground through a person, resulting in serious injuries or death. A Ground Fault Circuit Interrupter (GFCI) is a fast-acting circuit breaker designed to shut off electric power within as little as 1/40 of a second in the event of a ground-fault. It works by comparing the amount of current going to and returning fromequipment along the circuit conductors. If there is a measurable difference between the two, the GFCI interrupts the current.

Arc Fault Circuit Interrupter

An arc fault is an unintentional discharge of electricity in a circuit that can be caused by damaged, overheated or stressed electrical wiring or devices. Sparking or arcing caused by loose or corroded wires making intermittent contact generates heat and can damage insulation of the wires, which can trigger an electrical fire. Since arcing may not trip a circuit breaker, an Arc Fault Circuit Interrupter (AFCI) is needed to shut off the electricity before a fire can start.

The ESFI also recommends conducting a home electrical safety checkup by asking a number of questions designed to identify potential safety hazards, such as:

Are all switches and outlets working properly?
Are any switches or outlets warm to the touch?
Are any outlets or switches discolored?
Do any switches or outlets make crackling or buzzing sounds?
Do plugs fit snugly into all outlets?
Are any cords cracked, frayed or damaged?
Are any cords pinched by furniture, doors or windows?
Are cords attached to anything with nails or staples?
Are cords placed under carpets?
Are any extension cords being used on a permanent basis?
Are cords kept tied up while being used?
Are appropriate wattage light bulbs being used in all lights?
Are all appliance cords placed so they will not come in contact with hot surfaces?
Do you have recurring tripped circuit breakers or blown fuses?
Are electrical safety devices, such as GFCIs and AFCIs, tested every month?

If potential electrical safety hazards are discovered, the ESFI cautions against taking a do-it-yourself approach and strongly recommends leaving electrical work to the professionals. Nevertheless, the ESFI recommends the following precautions before doing any electrical work:

Turn off the power by switching off the correct circuit breaker in the main service panel.
Unplug lamps, appliances, etc. that are being worked on.
Test wires before touching them to confirm power has been turned off.
Never touch plumbing or gas pipes when performing an electrical project.
Never attempt a project that is beyond your skill level.

Since completely eliminating the risk of electrical damage is impossible, homeowners and renters should check with their insurance agent to make sure they are adequately protected. In some cases, a personal property floater or ordinance and law coverage may be necessary.

If you would like information about how insurance can play a valuable role in protecting your home from electrical safety hazards, please contact us.

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Is a Resident Manager Ideal for Your Self Storage Facility?

Resident managers are not as common as they used to be in the self storage industry. For some self storage facilities, however, a manager living on the premises may be the key to running a successful operation. Though cost is an important factor when deciding whether a self storage facility could benefit from a resident manager, other factors should be considered as well, such as:

Service: Automated facilities may not be enough to create an advantage over the competition. Depending on a self storage facility’s location or specialty, clients may want more than just an access code after signing a contract. Facilities with a resident manager can service clients in ways that others cannot. This is why the existence of a resident manager is often mentioned in promotional and marketing materials.

Security: Even with surveillance cameras and 24-hour monitoring services, it is difficult to deny that resident managers can make a self storage facility even more secure. Their presence alone will likely deter most criminals, and their response time will be quicker than even the fastest police departments.

Operations: Things can and often do go wrong after business hours. Leaking pipes and short-circuits are just two things that can cause significant damage if they are not discovered and fixed quickly. A resident manager can find and fix those problems that cannot wait.

Qualified Candidates: It’s not always easy to find and retain the right people. Providing prospective managers with a place to live may be just the perk required to hire and keep quality talent.

After evaluating all the pros and cons in the context of each facility’s own particular situation, an informed decision can be made about whether a resident manager could improve operations. However, before making a final decision, it is important to understand the ramifications of hiring a resident manager, particularly how doing so may create an unexpected relationship.

In addition to creating an employer-employee relationship, hiring a resident manager can also create a landlord-tenant relationship. While employers can often terminate employees at-will and without advance notice, the same cannot usually be done with tenants. Depending on applicable law, a self storage facility will generally be required to provide advance written notice to terminate the landlord-tenant relationship. As a result, a resident manager may be legally entitled to continue renting the property for a period of time after his or her employment has been terminated.

There are steps that can be taken to minimize the scope and impact of the landlord-tenant aspects of a resident manager’s employment relationship. For example, a self storage facility can address landlord-tenant issues in a written employment agreement or in a separate lease agreement. However, since specific legal requirements must be met, it is advisable to seek the advice of a locally licensed attorney.

As is often the case, it is necessary to understand the risks in order to control them. Since self storage facilities face unique risks, it helps to have an insurance program that is specifically designed for the self storage industry. If you would like more information about Setnor Byer Insurance & Risk’s Self Storage Insurance Program, please contact us.

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Lowering Your Hurricane Insurance Premium

Many homeowners believe that switching insurance companies is the only way to save on their windstorm (hurricane) insurance premiums. Unfortunately, companies with the lowest premiums may not have enough money to pay claims after a storm. Rather than buy insurance from an insurance company without the capital to pay losses, homeowners can reduce their premiums by taking advantage of wind mitigation credits.

Wind mitigation credits are premium discounts based on the ability of a home to tolerate strong winds without experiencing damage. According to one estimate, if homes were constructed in a manner beyond that which is currently required by building codes, the average losses per year would be reduced by over 70%. This is why increasing a structure’s wind resistance, or hardening, allows homeowners to save on their windstorm insurance premiums.

Homes built or retrofitted to incorporate specific mitigation features designed to increase wind resistance may qualify for wind mitigation credits. Insurance companies consider numerous factors when determining the availability and amount of wind mitigation credits, such as:

Roof Covering: Is the roof covered by shingles, clay tiles, metal, built-up tar, membrane, gravel or other material that meets or exceeds building codes?
Secondary Water Resistance (SWR): Is there a layer of protection between the roof covering and the roof decking (plywood, metal panels, etc.) that protects the home if the roof covering blows off?
Roof Deck Attachment: How is the roof decking connected to the roof trusses or rafters?
Roof-to-Wall Attachment: How are the walls connected to the roof trusses or rafters (toe nails, clips, single or double wraps, etc.)?
Roof Geometry: What is the shape of the roof (hip roof, flat roof, etc.)?
Opening Protection: How are openings, such as windows, doors and skylights protected against flying debris (shutters, hurricane glass, etc.)?

Mitigations features must meet very specific guidelines to qualify for credits. For example, the availability of a wind mitigation credit can depend on the size, spacing and number of nails used in the roof deck or roof-to-wall attachment. Credits will not be awarded unless there is strict compliance with applicable building codes, laws, regulations or standards.

The first step to getting a wind mitigation credit is to get the home inspected. Wind mitigation inspections, which typically cost less than $250 and take about an hour, are often done by licensed building inspectors, contractors, architects and engineers. However, since state laws and specific insurance company requirements may dictate who is qualified to perform wind mitigation inspections, be sure to confirm licenses and check references before hiring an inspector.

Those who do not qualify for one or more wind mitigation credits should consider the cost of hardening their homes and the anticipated savings. Since the amount of wind mitigation credit typically depends on various factors, including state laws and specific insurance company requirements, the assistance of a qualified insurance agent may be needed to estimate premium savings. If the math does not justify retrofitting, homeowners should keep wind mitigation credits in mind the next time general repairs are being done, such as roof and window repair or replacement.

If you would like to learn more about wind mitigation credits or windstorm insurance, contact us.

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Florida’s New Transitory Foreign Substance Law: Altering the Landscape in Slip-and-Falls?

Whether you operate an amusement park, a restaurant, or a grocery store, the thought of a customer slipping and falling on the premises can cause an unsettling, if brief, feeling of panic in proprietors who invite the public onto their premises for the purpose of doing business. Since a slip-and-fall case can easily result in a significant judgment for damages, business owners are right to be concerned. However, while business establishments should remain proactive in preventing a dangerous condition on the premises, a new Florida law defining the scope of liability for transitory foreign substances may operate to protect against successful slip-and-fall lawsuits.

In order to understand the ramifications of the new Florida law, a brief history of transitory foreign substance liability is helpful. Prior to 2001, when a person slipped and fell on a transitory foreign substance, such as food, water, or grease, the injured person had to prove that the business had actual or constructive knowledge of the dangerous condition and that the condition existed for such a length of time that in the exercise of ordinary care, the premises owner should have known of it and taken action to remedy it.

In 2001, the Florida Supreme Court rendered its opinion in Owens v. Publix Supermarkets, Inc., and changed the standard of proof in slip-and-fall cases. The Court found that premises liability cases involving transitory foreign substances are appropriate cases for shifting the burden to the premises owner or operator to establish that it exercised reasonable care under the circumstances, thereby eliminating the specific requirement that the customer prove that the store had constructive knowledge of the transitory foreign substance. Thus, under this new standard, the existence of a foreign substance on the floor of a business premises that caused a customer to fall is not a safe condition, and the existence of that unsafe condition creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition.

Unhappy with this ruling, the Florida legislature adopted Florida Statute section 768.0710 in 2002. This statute recognized that a business owner owes a duty of reasonable care to its customers to maintain the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage. However, rather than force the premises owner to prove that it acted reasonably, the statute required the plaintiff to prove that: the business owed a duty to the plaintiff; the business acted negligently by failing to exercise reasonable care; and the failure to exercise reasonable care by the business was the cause of the loss, injury, or damage. By enacting this statute, the legislature effectively overruled the Florida Supreme Court’s decision in Owens.

However, remaining dissatisfied with the manner in which Florida courts were dealing with transitory foreign substance liability cases, the Florida legislature repealed section 768.0710 in 2010, and enacted Florida Statute section 768.0755. According to the legislature, the purpose of this new transitory foreign substance statute is to approximate the law with respect to slip-and-fall suits as it existed before the Court’s Owens decision.

Effective July 1, 2010, the newly-enacted section 768.0755, entitled “Premises liability for transitory foreign substances in a business establishment,” provides that if a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that:

the business establishment had actual or constructive knowledge of the dangerous condition; and
the establishment should have taken action to remedy it.

Additionally, the statute provides that a plaintiff may prove constructive knowledge by circumstantial evidence showing that:

the dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; OR
the condition occurred with regularity and was therefore foreseeable.

Although this new statute may operate to make it more difficult for an injured customer to successfully sue a business establishment for a slip-and-fall incident, owners and operators of business establishments must still observe their duty to prevent dangerous conditions from occurring. The new statute by no means alleviates a business establishment from its duties in this regard. Moreover, the statute’s constructive knowledge provision could allow a plaintiff to prevail in a slip-and-fall case if the business owner or operator fails to routinely inspect the premises for hazardous conditions.

The lack of any judicial opinions applying this new statute makes it impossible to predict the precise manner in which it will impact the law of transitory foreign substances. Nevertheless, the law clearly preserves a claimant’s right to sue for damages resulting from a slip-and-fall, as well as a business establishment’s duty of care in this regard. Regardless of whether this new law is seen as a victory for business owners and an obstacle for plaintiffs, those who operate business establishments wherein people are invited onto the premises would be wise to continue their preventative efforts as though the law had not changed. Reducing your commitment to maintaining a safe business establishment would be shortsighted, and it could serve to transform the cause of those moments of panic from imagined to real.

For more information about managing the risks associated with slip-and-fall liability, contact us.

“Have a Nice Trip, See You Next Fall”: Why Food Service Establishments Aren’t Laughing

The classic routine in which a hapless person “slips on a banana peel” has been a staple of comedy guaranteed to elicit laughter from an audience. Unfortunately, there is nothing funny about watching a similar scene unfold in real life, especially when the person falling down is a patron being seated for dinner or picking up food from a take-out counter.

Transitory foreign substances – banana peels, if you will – pose a significant risk to patrons in the front of the house and are a leading cause of slips and falls. Unlike other businesses, food service establishments play host to many conditions that exponentially increase the risk of slips and falls, including constant food and beverage service, hurried service personnel, and inattentive patrons. Although it is unlikely that a banana peel will be the culprit, the presence of slippery conditions should place all food service establishments on high alert for potential slip-and-fall situations.

A patron injured in a slip-and-fall accident will often file a negligence lawsuit against a food service establishment, and it is not uncommon for a successful plaintiff to obtain a judgment in excess of $100,000. Given such significant risk exposure, food service establishments must know their duties under the law with regard to protecting their patrons from hazardous conditions, as well as take the steps necessary to protect their bottom line from adverse judgments.

Slip-and-fall cases are traditionally based on the duty that a possessor of land owes to a business visitor who is invited to enter the premises for the purpose of conducting business with the possessor of the land. Legally speaking, such a person is considered an invitee, and, under common law, a possessor of land owes a legal duty to protect invitees from hazardous conditions.

Although each state’s common law may have its own peculiarities with respect to defining the precise duty a possessor of land has to protect its invitees, the general duty can be restated in the following manner:

A possessor of land (in this case, a food service establishment) is subject to liability for physical harm caused to his invitees (patrons) by a condition on the land only if:

he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees; and
he should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
he fails to exercise reasonable care to protect them against the danger.

In the context of a transitory foreign substance, such as a spilled beverage or a spot of grease that has not been cleaned up properly, it is fair to assume that in many cases, the substance will create an unreasonable risk to patrons that they would not discover unless it is brought to their attention, thereby typically satisfying the second element. Similarly, if the establishment were to fail to clean up the slippery substance, or otherwise fail to warn patrons of the dangerous condition despite knowing of its existence, it is fair to say that the third element would also be satisfied.

That leaves the first element: whether the food service establishment knows of, or by the exercise of reasonable care would discover, the dangerous condition. In most cases, food service establishments have a policy of cleaning up slippery surfaces immediately after discovering the condition. Therefore, determining whether an establishment cleaned up a known transitory foreign substance is usually not a matter of significant debate. Yet, should a food service establishment be shown not to have a practice of cleaning up slippery surfaces upon discovery, it may find itself in quite a lot of trouble.

The stickiest issue, then, is usually the determination of whether the food service establishment should have discovered the dangerous condition before it caused injury to a patron. In turn, this issue raises another: a possessor of land’s duty to inspect the premises. Generally speaking, the possessor of land must act reasonably to inspect the premises to discover dangerous conditions. Precisely what is considered reasonable in any given situation depends on the circumstances.

For example, consider a crowded restaurant/bar packed with people on a weekend evening. It may be reasonably assumed that its restrooms will receive significant traffic, thus increasing the likelihood of wet or slippery floors. If a patron were to slip and fall in the restroom, the establishment would have a difficult time defending its position if the restrooms had not been inspected or cleaned since opening for business earlier that day because such a lapse would likely not be considered the exercise of reasonable care to discover dangerous conditions. Conversely, an establishment that takes seriously its duty to protect its patrons would likely implement a policy of inspecting the restrooms several times during the night, with more frequent inspections during the busiest hours.

A food service establishment’s duty to protect its patrons, including the duty to reasonably inspect the premises, may also be found in a state’s statutes. For example, Florida’s statute provides that “the person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition… which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.” Louisiana has a similar statute requiring reasonable efforts to keep the premises free of any hazardous conditions. Both of these statutes implicitly require reasonable inspections to discover dangerous conditions as soon as is reasonably possible.

According to common law or in some instances state statutes, a food service establishment is required to remove a dangerous transitory foreign substance immediately upon discovery, or at least place adequate signs warning patrons of the dangerous condition. Such long-standing requirements have been widely acknowledged, if not always followed. Of equal importance, though often overlooked, however, is the duty to inspect the premises to discover dangerous conditions before an injury occurs. It is in precisely this circumstance that many owners find that they have failed in their duty, and, consequently, where juries typically decide that a judgment in favor of the injured patron is warranted. For operators of food establishments, when it comes to transitory foreign substances, what you don’t know can actually hurt you.

“Slippery When Wet”: Preventing Falls in Food Service Establishments

When asked to identify workplace hazards, people tend to recall extreme situations, such as collapsed mines or chemical explosions – incidents that make front-page headlines. Yet statistics show that employees face the greatest risk from falls, which can occur in any workplace – including yours.

According to the Bureau of Labor Statistics’ (BLS) Injuries, Illnesses, and Fatalities program, falls make up a significant percentage of nonfatal injuries in the workplace. Since 2003, the BLS has recorded approximately one quarter of a million nonfatal injuries per year that have resulted from employee falls in the workplace. In 2006, the BLS reported 151,750 nonfatal injuries from employee falls that caused them to miss work. Additionally, the BLS reported almost 800 employees died in 2006 due to a workplace fall.

Although falls can occur almost anywhere, some workplaces, by their very nature, pose a greater risk of falls than others. Food service establishments certainly fall within this category, particularly in back-of-the-house areas such as kitchens and storage rooms. Many of the risk factors for falls are found in food service establishments: frequent spills, slippery floors, and hurrying employees.

The good news is that the risk of falls in food service establishments can be significantly reduced, if not eliminated, by implementing a slip prevention program that includes the following elements:

Slip-Resistant Flooring: Slips and falls occur most often when an individual loses traction on a slick floor. The degree of traction afforded by a particular flooring surface can be measured by calculating the surface’s coefficient of friction. A higher coefficient of friction means more traction. Based on a study performed by the University of Michigan, the Occupational Safety and Health Administration (OSHA) noted that a coefficient of friction of 0.5 is recommended as a baseline for effective slip resistance. However, according to OSHA, a higher coefficient of friction may be necessary in certain workplaces. Thus, a food service establishment should consider installing flooring surfaces that provide the highest possible coefficient of friction for that workplace
Floor Coverings Made of Non-Slip Materials: Non-slip matting or floor coverings should be placed in all areas that routinely get wet. Areas exposed to oily or greasy substances, such as the floor around stoves and deep fryers, may require special matting specifically designed to maintain a high coefficient of friction even when these areas become greasy. Establishments that cannot afford to install slip-resistant flooring can use non-slip matting or floor coverings that provide better traction. And even workplaces that have slip-resistant flooring should use non-slip matting in areas regularly exposed to water or other slick substances.
An Appropriate Footwear Policy: Food service establishments should require that staff members wear slip-resistant shoes that provide a high coefficient of friction. The appropriate slip-resistant footwear may depend on the type of flooring surface in the establishment, so employers should determine which type of footwear is most suited to their workplace and make it a part of an employee’s required uniform.
Clean, Dry Walking Surfaces: OSHA regulations regarding walking surfaces require that employers keep floors clean and dry at all times, which can be accomplished by having in place a procedure for regular cleaning and drying of wet walkways. Additionally, an establishment’s maintenance policy should require the immediate cleanup of all spills. Employees must be trained in the proper methods of cleaning slick or oily surfaces and should be provided with the proper cleaning materials, such as warm water, brushes, wet/dry vacuum cleaners, and degreasing solvents.
Prominently Placed Warning Signs: In the hurried environment of a commercial kitchen, immediate cleanup may not always be possible. In such instances, signs that warn patrons and employees of wet floors or dangerous conditions should be used.
Sensible Service Policies: Anyone who has ever worked in a food service establishment knows that customers want their food immediately. However, harried employees under pressure to serve food and beverages quickly are at a significantly higher risk of falling themselves or of inadvertently increasing the risk of fall for others by spilling food or beverages they are carrying. Establishments must make sure that service policies encourage employees not to sacrifice safety for speed.
Consistent Rule Enforcement: It’s a given that anti-slip policies will protect employees and patrons only if rules are consistently enforced. Non-slip matting is useless if it is not properly placed, cleaned, and maintained. Warning signs serve no purpose if they are not placed when and where they are needed or if they have been left out so long that they are routinely ignored. And if employees are not reprimanded for wearing the wrong shoes, then a safe footwear policy becomes meaningless. Maintaining a safe workplace requires vigilance. Employees who repeatedly fail to abide by the rules created to protect them must be retrained, and, when necessary, appropriately disciplined

Workplace slips and falls can have dire consequences, resulting in serious, even fatal, injuries to employees, as well as damage to employers in the form of increased employee turnover, declines in productivity, and increased workers’ compensation costs. When employers make a coordinated and consistent effort to reduce the risk of slips and falls in the workplace, the benefits to both employees and the business itself exceed the costs associated with implementing fall prevention practices.

The “Intentional Act” Exclusion: A Chink in the Armor of Workers” Compensation Statutes

In addition to increased productivity, the Industrial Revolution brought with it the unwanted consequence of increased workplace injuries. The explosive growth in industry made the workplace increasingly dangerous, and the frequency and severity of workplace injuries soared. As the number of injured workers increased, so too did the number of lawsuits against employers. The result was an inefficient, time-consuming, and costly judicial process that did little to address the problems encountered by employers and their injured employees.

The State of Washington echoed these sentiments in its workers’ compensation statutes by noting that “the common law system governing the remedy of workers against employers for injuries received in employment is inconsistent with modern industrial conditions. In practice, it proves to be economically unwise and unfair…The remedy of the worker has been uncertain, slow and inadequate. Injuries in such works, formerly occasional, have become frequent and inevitable.”

In response to a judicial system that no longer met the needs of those it sought to serve, states began enacting workers’ compensation laws in the early 1900s. The dual goals of providing for injured employees and of reducing employer/employee litigation served as the foundation for many of today’s workers’ compensation statutes.

States achieved these goals by opting for a legislatively mandated allocation of risk that employed a two-pronged approach: compelling employers to provide for injured employees outside of the traditional tort system, and prohibiting injured employees from suing their employers for workplace injuries. Employers and employees were forced to accept this statutory compromise known as the “compensation bargain,” an arrangement based on a mutual renunciation of common law rights and defenses by employers and employees alike.

On one hand, employees enjoy the benefit of what is essentially a no-fault workers’ compensation system that offers prompt medical attention and benefits regardless of any fault on the part of the employee. Consequently, employers are prohibited from asserting any defenses against the injured employee seeking compensation, effectively making employers strictly liable for injuries suffered by their employees.

However, in exchange for providing this no-fault insurance, employers benefit from the statutory removal of injury-based employer/employee lawsuits from the common law tort system. An example of this is illustrated in West Virginia’s workers’ compensation statute, which provides that the “enactment of… the workers’ compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee… .”

Such a provision theoretically protects an employer from being sued by an injured employee who claims, for example, that the employer’s negligence caused the workplace injury. Recall that under the compensation bargain, the injured employee relinquishes the right to sue for potentially greater, although uncertain, damages via a common law negligence claim in exchange for the right to automatic and prompt workers’ compensation benefits.

The chosen method for removing employee injury claims from the common law was by granting employers immunity from any such lawsuits or, alternatively, by mandating that the benefits provided under a state’s workers’ compensation laws are the exclusive remedy available to an injured employee. Regardless of which method is chosen, the substance and effect are the same, and the benefits of taking such cases out of the traditional common law tort system are realized.

In describing these benefits, one state’s supreme court noted that “in return for accepting vicarious liability for all work-related injuries regardless of fault, and surrendering his traditional defenses and superior resources for litigation, the employer is allowed to treat compensation as a routine cost of doing business which can be budgeted for without fear of any substantial adverse tort judgments. Similarly, the employee trades his tort remedies for a system of compensation without contest, thus sparing him the cost, delay, and uncertainty of a claim in litigation.”

Compliance with the letter and spirit of the compensation bargain is essential to maintaining the benefits both parties enjoy. Many states, recognizing the importance of maintaining this balance, have withdrawn any immunity an employer may have been entitled to if the employer fails to obtain the necessary workers’ compensation coverage, thus freeing the injured employee from his or her obligation to abstain from suing the employer under a traditional common law theory.

However, despite the compensation bargain, injured employees, or their personal representatives in cases involving the employee’s death, have routinely tried to sue their employers by claiming that the employee’s injury or death was the result of an intentional act. If an employee’s cause of action succeeds, then his or her employer will generally lose the immunity it enjoys under the workers’ compensation laws.

This loss of immunity is consistent with the general policy against allowing an individual to insure against the consequences flowing from an intentional act. The concern is that if an individual were permitted to insure against a loss brought about by an intentional act, then there would be no incentive or deterrent to keep that individual from intentionally harming another. In other words, how effective would the prospect of incarceration be if a criminal was able to have another serve his or her prison term? Such is the reasoning that underlies the intentional act exclusion.

Although intentional act exclusions are commonly found in workers’ compensation statutes or state judicial opinions, the precise articulation and application of these provisions can vary. Some states, like Louisiana, provide that “worker’s compensation [is] an employee’s exclusive remedy for a work-related injury caused by a co-employee, except for a suit based on an intentional act…which means the same as an intentional tort.” The statute defines intent to mean that the person who acts either “consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct, or knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Simply stated, intent in Louisiana refers to the consequences of an act rather than to the act itself.

Florida uses a slightly different approach. Like Louisiana, Florida waives workers’ compensation immunity for any injury or death caused by an employer’s intentional tort. The existence of an intentional tort, which must be proven by the heightened standard of clear and convincing evidence, can be established in two ways. The first way simply requires proof that the employer deliberately intended to injure the employee. The second way requires proof that the employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee. Additionally, there must be proof that the employee was not aware of the risk because the danger was not apparent, and that the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work. This is a significant obstacle to overcoming Florida’s workers’ compensation immunity.

West Virginia’s statute makes overcoming workers’ compensation immunity similarly difficult by requiring an injured employee to prove “deliberate intention,” which is a legal term of art encompassing numerous (and effectively higher) standards of proof that the employee must meet.

The considerable hurdles that stand in the way of overcoming workers’ compensation immunity reflect one of the central aims of the compensation bargain: that workplace accidents be addressed outside of the traditional common law framework, regardless of the severity of the injuries they cause. However, the fact that an employer will not be shielded from liability for “intentionally” injuring an employee, regardless of how that term is defined in a particular state’s statute, should serve to remind employers that their employees are not disposable assets that can be casually placed in harm’s way. Employers should become familiar with the duty of care owed to employees and should abide by that duty to be assured of enjoying the benefits of the compensation bargain.