Recovery Beyond Worker's Comp.
Submitted November, 2001
After most industrial accidents insurance compensates their victims with worker's compensation paying medical bills and wages. There is no tort liability of the employer even if he is guilty of negligence.
If the accident is due to a defect in a machine, such as inadequate safety provisions, that machine's manufacturer may be liable for a product liability lawsuit. It is a function of an expert witness to determine if such defect exists.
Numerous codes specify safety in machines. Among them are:
- Code of Federal Regulations, Title 29, Part 1910, Occupation Safety And Health Standards (OSHA)
- National Electrical Safety Code
- National Electrical Code
- Numerous codes of the engineering societies and local communities
However strict conformance with codes is not sufficient to eliminate liability for dangerous machines.
Many industrial accidents result from a worker s effort to do a good deed beyond performing his assigned duties. Examples are clearing a jam in a machine and evading a safety device to increase productivity or reduce the worker s fatigue.
In my collection of anecdotes are the man who by-passed four concentric safety devices to reach into a molding press - and lost his hand, a woman who climbed through a gap in a machine guard to clear a jam - and was crushed, and an untrained man who tried to repair a machine - and was struck in the face by a spring powered lever.
Safety devices themselves may fail or be tampered with and should be tested regularly, preferably automatically as part of a machine's operating cycle. Workers may tamper with a safety device for their own convenience, so the machine's cycle should verify that the device is operating properly.
Warning labels are attached to machines, materials, and locations. But who reads them and even of those, how many obey them? Do you? Warning labels are a poor substitute for physical safety devices and practices. For example, dynamite could be sold over the counter with a warning label attached; instead it is sold only to those with a license to buy. Similarly, prescription drugs.
Training is a step better than written labels, but employees are not all humbly obedient. Permit me an anecdote: My machine shop foreman came to me in frustration because he could not persuade his men to wear safety glasses. I called a meeting and announced that ...we will no longer insist on safety glasses. You provide the eyes and we will provide the insurance. (Please do not send me criticisms of my legality.) Within an hour a machinist came into my office with a pair of cracked safety glasses in one shaking hand and a quarter inch bolt in the other. Gee, Larry, thanks. Thanks, Larry and walked out.
Workers do not want to be hurt and intend to be careful when they disobey their instructions, but repetitive work eight hours a day has a numbing effect on such care. Boredom cripples unless a tireless safety device is on duty.
It is the duty of a machine's manufacturer (and installation contractor) to anticipate unauthorized behavior and provide means to prevent it from causing injury. Failure in this duty is a tort.
Although the essence of workmen's compensation is to relieve employers of negligence liability, there are exceptions in which the employer acts or fails to act in a way he knows creates a danger and in other special cases involving presses, the most dangerous class of machines.
Copyright © 2002 Lawrence Kamm.All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.