Under workers compensation law, an employer who carries workers compensation insurance cannot be sued for personal injury following a workplace accident. Under the exclusive remedy provision of workers compensation law, the only recourse an injured worker has for an injury that results from the carelessness or ordinary negligence of an employer is through workers compensation.

While workers compensation can provide important benefits, including wage loss benefits and medical care, it does not provide the level of compensation that may be available in an ordinary personal injury action. Thus, when an employee is injured at work it makes sense to evaluate whether there is a possible third party, a party other than the employer, who may be liable for the injury.

Product Liability Claims

As many work injuries result from the operation of equipment and machinery, one possible avenue of recovery is against the company that is responsible for the design, sale, installation, and maintenance of the equipment that causes injury to an employee. Claims based on the theory that a machine or other product is unreasonably dangerous are known as product liability claims.

A cause of action alleging that a product is defective or unreasonably dangerous may be based upon three possible theories of liability:

• Strict Liability: Under strict liability, the manufacturer of a product may be held liable for injuries that result from the use of a product that is determined to be unreasonably dangerous. Depending upon state law, sometimes the company that distributes or sells such a product may share liability with the manufacturer.

• Negligence: A negligence claim is based upon a manufacturer's duty to produce a safe product, and alleges that the manufacturer owed a duty of care to the end user, knew or should have known about a problem with the product, failed to identify or correct the problem in violation of its duty of care, and that as a result of the breach of duty a worker was injured through the use or foreseeable misuse of the product.

• Breach of Warranty: A warranty claim will normally be based upon an implied warranty of fitness for use, and allege that a product was not safe to be used as intended.

As workers compensation laws vary significantly between states, it's important that a workplace product liability claim be evaluated by a lawyer. Factors that may affect liability include state law, the statute of limitations, and the facts of how the injury occurred.

Depending upon the full facts of the case and the extent of an employer's neglect of worker safety, again depending upon state law, it may also be possible to build a case for personal injury from the employer based upon a theory of gross negligence.

Dangerous Product Design

Liability may fall upon the manufacturer of machinery or equipment for aspects of its design that render equipment unsafe, or inadequately safe. For example, a circular saw should be designed so that it cannot easily be accidentally activated, with appropriate protective guards to minimize the chance of accidental contact with the saw blade or of objects or debris being ejected into the face of a user.

Design should also take into consideration the probability that equipment will be misused, or may be used without the proper safety guards and mechanisms in place. It is well-known that employees will often short-cut safety measures when they're using, performing maintenance tasks, or cleaning potentially dangerous machinery.

• The design should take into consideration foreseeable misuse, and when possible it may be appropriate to build safeguards into equipment such as designing the equipment so that it cannot be operated if safety equipment and guards are not in place.
• For some machinery, a self-test can be built into the product such that a basic safety check is run every time the product is activated.

Design should follow relevant safety codes, including federal occupational and health standards promulgated by the Occupational Safety and Health Administration (OSHA), the National Electrical Code, the National Electric Safety Code, and other applicable engineering and design standards. Compliance with safety codes reduces the chance of producing a dangerous product but, of itself, is not sufficient to eliminate the possibility of a product liability claim.

When a problem that is reasonably foreseeable is not detected during the design and manufacturing process, or is detected but ignored, the manufacturer may be liable for injuries that later result.

Manufacturing Defects

Even when properly designed, mistakes may occur during the manufacturing process that render machinery and equipment to be dangerous to use.

For example, the door handle of a walk-in freezer should be constructed so that a person inside the freezer cannot be locked inside if the door is accidentally closed while the person is inside. The simplest solution is to omit a latch from the freezer door.

If a company designs a freezer with a latch or locking door, and the mechanism fails because a defective component cracks due to exposure to cold, the manufacturer may be liable to an employee who becomes locked inside and suffers injury from the cold temperature.

Duty to Warn

A manufacturer has the duty to warn the people who uses its products of dangers associated with those products.

Although sometimes risks are obvious, or the risk is from a simple tool such as a ladder for which any duty to warn is minimal, a failure to provide adequate warning may result in liability.

For some machinery and equipment, the use of warning labels may be adequate. However, for more complex or dangerous equipment, the mere attachment of a warning label may not adequately inform a casual user of the risks associated with the use or misuse of a machine. Further, at times a warning label itself may be misleading, resulting in confusion about how to safely use the equipment.

Maintenance and Training

Although employers should train their employees to use equipment safely, inadequate training won't take an employee's injury claim against an employer outside of workers' comp. An employer's failure to properly maintain machinery and other equipment, failure to train employees on the safe use and operation of equipment, and failure to provide proper supervision of employees who use potentially dangerous equipment, will not create a claim against an employer outside of workers' compensation.

However, when a third party is responsible for maintenance or training, such a failure may support a negligence claim against that party. For example:

• If a supplier or contractor is responsible to maintain the equipment for the employer, but does not exercise proper care when conducting safety inspections and maintenance, it may be liable for injuries that result from its failure to properly perform those tasks.
• If the third party is paid to provide training to workers but fails to provide adequate training, the third party may be liable for injuries that result from the operation of equipment or machinery by inadequately trained workers.

Compensation Beyond Workers Comp

When a worker is able to bring a personal injury or wrongful death action against a third party, the employee will be able to pursue damages that potentially include the full value of lost past and future wages, medical and rehabilitation costs in excess of those provided through workers' compensation, and compensation pain and suffering.

If a worker is killed, the worker's estate may pursue a wrongful death action, which has a potential to return a damages award far in excess of the death benefits available through workers compensation.