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Showing posts with label worker compensation. Show all posts
Showing posts with label worker compensation. Show all posts

Tuesday, December 28, 2021

Police officer delivering lunch was on the job for worker comp but not for statutory immunity, court rules

Pixabay by Ronald Plett (license)
A personal injury claim against a police officer's automobile insurer highlights the different scope of what it means to be "on the job" for purposes of statutory immunity and worker compensation.

In a case the Massachusetts Supreme Judicial Court (SJC) decided in late October, Raynham, Mass., police officers on mandatory firearms training on public property in 2017 organized takeout for lunch for a paid break.  Returning to the training site in his personal truck with the takeout, one officer drove the gravel path "faster than [he] should have," braked, and slid into and injured another officer seated at a picnic table.

The plaintiff-officer was permitted to claim state worker compensation, because he was injured on the job.  The defendant-driver's insurer meanwhile claimed immunity under the Massachusetts Tort Claims Act, because the insured acted "within the scope of his ... employment."  The SJC denied the insurer of the defense.

The common law test for "vicarious liability, respondeat superior, and agency," the court explained, is "whether the act was in furtherance of the employer's work," and the same test informs the invocation of statutory immunity.  That analysis comprises three factors in Massachusetts law: "(1) 'whether the conduct in question is of the kind the employee is hired to perform'; (2) 'whether it occurs within authorized time and space limits'; and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'"

Only the middle factor favored the insurer, the court opined, so the analysis on balance disfavored immunity.

Worker compensation and common law master-servant doctrine are indistinguishable as a practical matter in many cases, when an employee suffers injury doing the employer's bidding.  Doctrines in both veins rely on "scope" or "course of employment" tests.

But even when the language is the same, the tests differ, and in some cases, the difference matters.  Worker compensation tests only loosely for a causal connection between employment injury, thus famously allowing a traveling salesman to recover when his overnight motel was destroyed by a tornado.  Vicarious liability, and thus, Massachusetts immunity, requires a closer causal nexus between the employee's specific pursuit and the injury that results.

In this analysis, the defendant-driver's lunchtime carelessness, for which he was suspended for five days, was not a "frolic" as escapes worker compensation coverage, but, at the same time, was not in furtherance of the employer's work, so qualified for neither vicarious liability nor statutory immunity.

The case is Berry v. Commerce Insurance Co., No. SJC-13089 (Mass. Oct. 25, 2021).  Justice Dalila Wendlandt wrote the unanimous court opinion.

Tuesday, August 27, 2019

Minhaj: With tort impunity, cruise lines externalize risk, costs to workers, passengers, environment

One of my favorite comedians—saw him perform Homecoming King at intimate Cherry Lane in NYC in 2016—Hasan Minhaj (self-described "second brown John Oliver") has taken on the wide range of problems associated with cruise lines' foreign flagging and legal impunity at sea, threatening the safety and well-being of passengers with legal impacts including virtual immunity from tort liability.  (Patriot Act s4e04.)


Instrumental in this deplorable state of affairs for our part, in U.S. law, is the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 30301–30308.  On its face the act simply invites maritime wrongful death actions into U.S. courts.  However, the act's "shortcomings" have been documented in legal scholarship for a long time; the devil is in the details, specifically, damages, which are limited by § 30303 to "fair compensation for the pecuniary loss sustained."  Note, "pecuniary," not the familial wrongful death intangibles recoverable in domestic tort law, and maybe zero for, say, an elderly retired person.  Minhaj reports that attempts to amend the law have been torpedoed in Congress.

But DOHSA is just one piece of the big, messy picture of maritime liability, or non-liability, for cruise lines.  Most civil wrongs involving passengers are sexual assaults, which can come under the lax, overwhelmed, or de facto non-existent jurisdiction of the vessel's flag home.  Same for the abusive conditions to which cruise ship workers are subject, from working hours that would never be tolerated on land, on through to the minuscule compensations available for debilitating injury, such as loss of limb.  And all that's to say nothing of the devastating environmental impact of cruise ship polluting and dumping that occurs beyond the reach of regulators.

Minhaj aptly paints the ugly picture of what happens when an industry escapes the norm-setting and deterrence mechanisms of domestic tort law.  As he suggests, the relatively affordable cost of a cruise as a vacation optionand I confess, I've gone, I've loved it, and I'd like to go againis born disproportionately by an oppressed workforce, injured passengers, and the voiceless marine environment.