T Nation

Legal Inquiry: Liability & Workers' Comp


#1

So i was talking to this guy yesterday whose father is a criminal attorney. We were discussing liability and workers compensation. He pretty much told me that the only reason insurance companies do drug testing is so they won't be liable but the company you work for is still liable. Pretty much whether or not you get hurt while under the influence you can still get paid for it, just not by the insurance company. I never thought about it but this makes sense. The company should have never allowed you to work under the influence so if you get hurt on the job while under the influence i believe that they should be liable.

What i did not understand was this:

He told me that once someone gets hurt on your property you are liable despite any circumstances. I then asked him what if i have a "no trespass" and "beware of dog" sign on the fence surrounding my property and someone jumps my fence and get bits by my dog. He said that i am still liable. I even asked him what if the person was never invited and i am at work at the time. He said that i am still liable. I called bullshit but another guy overheard our conversation and said it was true. I mean i understand if i invite someone to my home and they get hurt but if i am say... out the country and someone i have never met in my life jumps my fence and drowns in my pool i am still liable for damages?.... WTF, is there anything you cannot get sued for in this country.

Could someone with the knowledge explain this to me...thanx


#2

[quote]angus_beef wrote:

Could someone with the knowledge explain this to me…thanx[/quote]

Hi, I’ll post on this later, but here’s a quick distinction that there exists in English law (studying this at college ATM) - there is two different set of liability circumstances for the occupier to consider.

One is for trespassers, and another for visitors. Liability to trespassers, which you are interested in, in English law is governed by the Occupier’s Liability Act and the subsequent case law.

As an occupier in English law, you owe a duty of care (different than that to a visitor) to a trespasser only if certain criteria are met. This is a legal term and doesn’t mean you effectively have to make sure the trespasser is safe.

This duty of care arises if you are

1: aware of a danger in your property, are aware that someone may in certain circumstances come into contact with this danger (legally or not: imagine having a big garden in which kids sometimes sneak into, letting a big scary doberman loose while you go to work will probably be overkill)
2) if you’d be reasonably expected to provide some sort of protection in the form of a warning from this danger.

This may sound a bit crazy, but bear in mind that in English courts at least, it takes a pretty strong case for a trespasser to establish a duty of care from the occupier to himself.

It’d be interesting to see how US law contrasts to this when someone chimes in.


#3

[quote]angus_beef wrote:
I then asked him what if i have a “no trespass” and “beware of dog” sign on the fence surrounding my property and someone jumps my fence and get bits by my dog. [/quote]

Again, I don’t know how it works in the US, but in English law there is a concept of effective warning, which depending on the circumstances, can exclude liability… I’m kind of curious now so if we don’t get a US perspective I’ll do some research.


#4

Depends on the state.


#5

I think either your friend’s father needs to find a new line of work, or your friend himself has much more to learn from his dad.

Worker’s comp WILL NOT cover you if you are under the influence. Period. Your logic implies that the company has some way of constantly knowing whether or not an employee is under the influence. You also claim the employer should be liable if an employee harms himself while under the influence. If you don’t see the problems with these arguments there is no way you can have an intelligent conversation on the topic.

As for your second question, as pickitupsnake said it really depends on the state, but in everything I have read it is very difficult for a trespasser to hold a property owner liable, short of gross negligence or obvious intent to harm trespassers. Harboring a vicious animal could fall into one of these categories, so you very well could always be held liable for a dog attacking. A trespasser spraining an ankle while running through your backyard could not likely sue you, but a trespasser running through your backyard and falling in an uncovered or unblocked off footing hole while you are building a deck would be a different story.

Also keep in mind that when you see in the news a trespasser filing suit, it is just that. They have filed but have not won anything. Frequently your insurance company will settle the matter on your behalf outside of court because the settlement will cost them less than attorney fees. This is a primary reason why we need tort reform in this country.


#6

as your attorney I advise you to slit their fucking throats first, ask questions later. This applies to everything.


#7

[quote]tedro wrote:
I think either your friend’s father needs to find a new line of work, or your friend himself has much more to learn from his dad.

Worker’s comp WILL NOT cover you if you are under the influence. Period. Your logic implies that the company has some way of constantly knowing whether or not an employee is under the influence. You also claim the employer should be liable if an employee harms himself while under the influence.

If you don’t see the problems with these arguments there is no way you can have an intelligent conversation on the topic.

As for your second question, as pickitupsnake said it really depends on the state, but in everything I have read it is very difficult for a trespasser to hold a property owner liable, short of gross negligence or obvious intent to harm trespassers.

Harboring a vicious animal could fall into one of these categories, so you very well could always be held liable for a dog attacking. A trespasser spraining an ankle while running through your backyard could not likely sue you, but a trespasser running through your backyard and falling in an uncovered or unblocked off footing hole while you are building a deck would be a different story.

Also keep in mind that when you see in the news a trespasser filing suit, it is just that. They have filed but have not won anything. Frequently your insurance company will settle the matter on your behalf outside of court because the settlement will cost them less than attorney fees. This is a primary reason why we need tort reform in this country.[/quote]

Well i use to work for this company where the employees were constantly high. They would go on lunch breaks and come back with their eyes blood shot red. EVERYBODY knew what was going on but yet still the manager allowed these guys to continue working.

I remember one time one of the guys were slump over because he was so high off pills. In a situation like this i definitely believe if one of these guys got hurt at the job, they would not get workers comp from the insurance company but they will definitely get paid.

To the trespass response… What else is there for a homeowner to do? If you have a “beware of dog” sign and you keep your dog on a leash in your yard, why would you be held liable? This is a window to insurance fraud… Anyways i was just curious to how things work

x2 on the reform!