EDITOR'S COLUMN, Vol. 12 No. 4 (1994)

William F. Gallagher

Workplace Safety in A Free Market:

Abolish Employer Immunity

The lead article in this issue of the Forum is Matt Shafner's "An Idea Whose Time Has Come - And Gone?" This thought-provoking essay first appeared in the April 25, 1994, Connecticut Law Tribune workers' compensation supplement, and has been on all workers' compensation practitioners' minds ever since. Matt's thesis is that workers' compensation, which originated as a humanitarian effort to assist injured workers and their families, has evolved into an excuse to provide unsafe workplaces and encourage dangerous work practices. Employers of all stripes of indifference to safety practices obtain insurance readily. Moreover, the system is fraught with roadblocks that prevent workers from getting compensation quickly. Why not let the marketplace resolve the problem? Take away employer immunity, and see how fast worker safety and safety practices become a primary consideration of the employer, who does not want to pay fair, just and reasonable compensation in a courtroom for maiming or killing his employees. The worker has medical insurance, and a supplemental wage continuation payment can be provided for easily, both of which can be credited against any future award. These payments will cover the worker's needs until such time as his common law action is disposed of. A compelling argument can be made for dismantling the entire workers' compensation system, especially with the snags and delays in the system and the onset of universal medical coverage.

The idea is no doubt ahead of its time. We are realists, and understand the improbability of this occurring. It is however an implicit recognition of the existence of unsafe workplaces and work practices that motivated the Supreme Court to carve out the "substantial certainty" exception to the exclusive remedy provisions of the Workers' Compensation Act in Suarez v. Dickmont Plastics Corporation, 229 Conn. 99 (1994).

Alfonso Suarez was injured when he attempted to clear hot molten plastic out of a molding machine. He sued his employer and alleged wilful and serious misconduct on the part of the employer by requiring the plaintiff and other employees to clean the plastic molding machine while it was in operation and refusing to allow the plaintiff and other employees to use safer cleaning methods. Summary judgment was granted because the plaintiff was unable to remove his case from the requirement that he show that the employer intended the specific injury that he sustained, as set out in Jett v. Dunlap, 179 Conn. 215, 217 (1979), and Mingachos v. CBS, Inc., 196 Conn. 91, 102 (1985). The Appellate Court affirmed the granting of summary judgment. The Supreme Court granted certification limited to the following issues:

1. Whether an individual may bring a civil action for damages

against his employer for injuries sustained at work where

such injuries were caused by work conditions intentionally

created by the employer which made the injuries substantially

certain to occur?; and

2. Whether there is a genuine issue of material fact as to

whether the employer's intentional actions created a

situation in which the employee's injuries were substantially

certain to occur?

Suarez v. Dickmont Plastics Corp., 225 Conn. 926 (1993)

The decision by Justice Katz held that there is a genuine issue of material fact as to whether the plaintiff's injury was "substantially certain" to follow from his employer's conduct so as to satisfy the narrow exception to the exclusivity provisions of the act and to allow the plaintiff to pursue his common law remedy at trial. The court further held that the plaintiff's previous collection of workers' compensation benefits did not preclude his common law remedy.

Several examples of the "substantial certainty" of injury test are set out at 229 Conn. 112-113. They include a claim where the employer was aware that the plaintiffs' contact with PCBs would injure them but nevertheless ordered them to perform their job in a manner requiring them to initiate and maintain contact with the offending substance; failing to warn a plaintiff of the risks of respiratory disease where the employer had knowledge that the plaintiff was contracting the disease on the job; requiring a worker to drive his slag-moving machine under a vessel of molten steel during a blowing process that frequently caused overflow, and which killed the employee; and failing to take appropriate measures to protect the plaintiff where a cleanup operation of a radiation spill was substantially certain to cause injury.

Other examples abound. What about the employer who requires the worker to use a grinding machine without safety glasses? or dismantle a dangerous and dilapidated building without a safety helmet? or remove items from a fast-moving conveyor belt without adequate shutoff switches and safety clothing?

We agree with the court (229 Conn. at 117) that the Suarez decision will not encourage significant additional litigation. It will, however, provide a remedy to workers who are injured and to the families of workers who are killed in the workplace because there was employer indifference to workplace safety and dangerous workplace practices. It is a small step in the right direction. We maintain, however, that the most effective inducement to workplace safety and safe work practices is the free market. Abolish the immunity and see how fast the workplace is cleaned up and made safe.