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How to Distinguish between Serious
and Willful Misconduct & 3rd Party
Liability Claims

By David L. Hart, Esq.

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David L. Hart represents injured workers and plaintiffs in personal injury actions, wrongful death claims, and employment related litigation.

A prospective client who consults you after suffering a work injury may have multiple claims. Two such claims that should be carefully explored are 1) serious and willful misconduct by employers and 2) claims against negligent third parties. Before beginning analysis, it is important to understand the remedies available under the different claims.

In a claim for serious and willful misconduct, the compensation benefits increase by 50%. See Labor Code 4553. In order to prevail an employee must show:
  1. There was a violation of a safety order.
  2. The violation of the safety order was the proximate cause of the injury.
  3. The employer or the employer’s representative (a particular named person) had knowledge of the dangerous condition, or that the condition making the safety order applicable was obvious, created a probability of serious injury, and that the failure of the employer, or a representative designated by Section 4553, to correct the condition constituted a reckless disregard for the probable consequences. See Labor Code 4553.1.
Labor Code §3852 allows an employee to sue a third party
The standard of proof for serious and willful misconduct is higher than a negligence claim. Accordingly, an attorney should always be looking for third party negligence. This is especially true when an employer’s conduct may have been negligent, or even grossly negligent, but does not rise to the level of serious and willful misconduct.
See the California Supreme Court decision in Mercer-Fraser Co. v. IAC, 40 C2d 102, 18 CCC 3, 13 (1953): “It must be recognized at the outset that the statute …does not make the employer an insurer of safety and that it does not authorize the additional award upon a showing of mere negligence, or even of gross negligence….’Wilful misconduct' means something different from and more than negligence, however gross, …..involving conduct of a quasi criminal nature…”
In a third party tort liability case, an employee claims all damages available under tort law including, but not limited to, wage loss, loss of future wages and pain and suffering. A third party tort claim proceeds under general tort law. County of San Diego v Sanfax Corp. (1977) 19 Cal 3d 862. Under the workers’ compensation system, wage loss is limited to 104 weeks and capped out such that a worker who earns more than around $77,000 per year in 2011 loses money by being off work. There is no such limit in civil actions, although there is a duty to mitigate damages. On the other hand, in a tort claim there may be no or minimal insurance to pay for the wrongful conduct.

In a claim for serious and willful misconduct, an employer will almost assuredly have to pay any damages out of pocket, since an employer cannot purchase insurance to cover such claims, except for the legal defense. See Insurance Code §11661. In third party tort claims, there is frequently an insurance policy that covers negligence. It is also important to note that a claim for serious and willful misconduct, like a claim for workers’ compensation benefits, is against the employer. A claim for third party tort liability is against anyone except the employer, with rare exceptions. A claim for serious and willful misconduct must be made within a year of the injury and a claim for negligence made within two years, unless the claim is against a government entity.

Each case must be approached individually, but the following questions can assist in beginning analysis:
  1. Was the injury caused in a building owned by the employer?
  2. Was the injury caused by tools that the employer owned?
  3. Was the injury caused by tools that the employer maintained?
  4. Was the injury caused by machinery maintained by the employer or individuals employed by the employer?
  5. Was the person instructing the injured employee employed by the same company?
  6. Was the employee injured working in an area with employees and equipment from the same employer? (This assumes that injury was not caused by a condition in the premises.)
Tort damages may be higher, but there may be no or minimal insurance.
If the answer to the above questions was “yes”, the attorney should research safety orders and explore a potential serious and willful misconduct claim.

On the other hand:
  1. Was the injury caused at a place where multiple entities and individuals were performing work?
  2. Was the injury caused by a newly purchased tool or a tool with a latent defect that had been properly maintained?
  3. Was the employee injured by a defective tool?
  4. Was the person instructing the injured employee working for another person or entity?
  5. Was the injured employee injured using tools that belong to a different employer or someone working for a different employer?
  6. Was the employee injured on machinery that was maintained by an outside contractor? (Never assume that the employer that owns it always maintains equipment. This is especially true for complex machinery and assembly lines used in manufacturing.)
  7. Was the employee injured because another person or entity had negligently built or designed the premises owned by the employer?
  8. Was the employee injured by another driver while driving as part of job duties?
  9. Was the employee injured because of a dangerous condition that existed on the property owned by a person other than his employer?

If the answers to the above questions are “yes”, than an attorney should explore a claim against a third party.

By always exploring every claim at the very beginning of the attorney-client relationship, the attorney serves his client and maximizes recovery for what are often life altering injuries (and at the same time minimizes malpractice exposure). While it is easy to consider a case on paper, when a working parent loses the ability to earn a significant portion of their income whether for a finite period or the rest of their life, the results can be devastating. The best service an attorney can do to help a client through a very difficult time is to maximize the recovery to best offset the effects of the injury.

The easiest way to research safety orders is to use the Cal-OSHA search engine.

Law Office of David L. Hart
1750 Francisco Blvd #8
Pacifica, CA 94044
Phone: (650) 355-3000
Fax: (650) 355-0250