Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
|A Haul Road, A Paper Trial, And A Casino Parking Lot!|
A Haul Road, A Paper Trial, And A Casino Parking Lot!
There are many roads to litigation. Some are on asphalt and others are on paper! Some never leave the parking lot. In the asphalt category, a worker was killed on the job when his brakes failed while driving on a heavily loaded truck down a steep haul road. The decedent's family filed a wrongful death action against the employer rather than proceeding under the Worker's Compensation Act. The family argued that since the company's truck and haul roads were so chronically and deliberately left unmaintained and unsafe, the company's conduct constitutes an utter disregard for the life and safety of its employees. On this basis, the family argued that their rights should not be limited to the recovery provided for under worker's compensation. In analyzing the situation, the Court of Appeal described the so- called "compensation bargain" afforded employees under the worker's compensation laws. As a general rule, the right to recover compensation under the Worker's Compensation Act is the exclusive remedy against an employer for injury or death of an employee. The basis for exclusivity is the "compensation bargain" "pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort." The Court notes that there are essentially three classifications of injuries arising in the course of employment: (1) Injuries caused by employer negligence or without employer fault that are compensated at the normal rate under the Worker's Compensation Act; (2) Injuries resulting from the employer's "serious and willful misconduct" for which a 50% increase in compensation is afforded the employee; and (3) Intentional employer conduct "which bring the employer beyond the boundaries of a compensation bargain, for which a civil action may be brought. In this situation, the Court held that the worker's compensation remedy was the exclusive remedy and observed: "It is an expected part of the compensation bargain that industrial injury will result from an employer's violation of health and safety, environmental and similar regulations." On the paper road to litigation, a loving husband signed his wife's name as well as his own to a promissory note and a trust deed upon the family residence and had both signatures notarized by a notary for his friend's company. In this situation, the litigation trail found its way to the notary who, among other matters, was held accountable for damages attributable to negligent affliction of emotional distress. In another recent case, the litigation trail passed through the parking lot of a casino operated by the Cabazon band of Mission Indians. In this situation, the plaintiff and his wife visited the casino to "eat supper and play bingo". The Court observes: "As the couple left the casino to go to their car after the bingo game, a fight broke out among the other patrons. Although plaintiff was not a participant in the fight, he was knocked off his feet by the fighters, breaking his hip and shattering his elbow." The Court of Appeal determined that the plaintiff's action was barred by a doctrine known as "sovereign immunity". As a matter of Federal law, an Indian tribe may be sued only where Congress has authorized the suit or the tribe has waived its immunity. The Court also noted that: "It appears to be settled that a tribe's sovereign immunity is not limited to governmental activities, but extends to commercial activities as well, and that the immunity applies to tort claims." The moral of the story? The admonition of, "Follow the yellow brick road!" is guaranteed to result in success only in the movies!
[This column is intended to provide general information only and is not intended to provide specific legal advice; if you have a specific question regarding the law, you should contact an attorney of your choice. Suggestions for topics to be discussed in this column are welcome.] Reprinted from New Era Magazine Myles M. Mattenson © 1999-2002