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Torts II
St. Johns University School of Law
Villiers, Janice D.



-based on statute in individual state
-smaller employers usually purchase insurance
-larger employers usually self insure
-seeks to compensate workers for lost wages NOT pain and suffering…so they can pay medical bills

Employer Immunity:
-employee covered by WC loses right to sue employer for negligence
-normally bars action against co-employee (States like La, Tx, Wyo)
-DOES NOT extend to intentional torts
-DOES NOT extend to third parties
-Always look for a third party to sue because they don’t pay workers’ comp premiums

Possible Issues
-Injury and Scope of Employment
-If not suffered in course of employment à negligence action (Small Number of instances)
EX: Employer negligent in structuring working hours and fatigued employee injured while driving home after overnight shift…not during scope of employment, so negligence action (Harrington v. Brooks Drugs)
-If injury suffered in course of employment à no negligence action
(Be wary of where injury occurs!)

To Determine Course of Employment:
Restatement: conduct of a servant is within the scope of employment, ONLY IF:
a. it is of the kind he is employed to perform;
b. it occurs substantially within the authorized time and space limits;
c. it is actuated, at least in part, by a purpose to serve the master; and
d. if force is intentionally used by the servant against another, the use of the force is not unacceptable by the master

-Illnesses caused by on-the-job stress
-much litigated but mixed results

Employer Advantages:
-Don’t have to be as careful and safe
-Know that they wont be sued
-Much cheapers

Employee Advantages:
-Don’t need to prove negligence
-Timely recovery
-No lawyer à cheaper

Employee Disadvantages:
-Capped recovery
-No pain and suffering reward
-Unsafe workplace
-Employer liable for employee’s tort
-Victim must only prove employee’s tort and employer will be held liable
-Tort must be committed in employee’s scope of duty
-Also applies to

-work done in a public place
-construction and maintenance of principal’s buildings
-inherently or abnormally dangerous
Ex: Boxing match…hotel liable for not providing adequate post match medical even though somebody else probably responsible for it
Installation of lighting system in sports arena

Courts Examine:
-W2 or 1099
-Nature of worker’s business
-worker’s obligation to furnish equipment to perform job
-worker’s right to control progress of work except final results
-time for which worker employed
EX: Driver found to be independent contractor because could drive any route he wanted; no regular hours; own truck; paid for gas, repairs and insurance; paid by load; 1099 form not w-2; driver paid SS and income taxes; no paid holidays (Limestone Product v. McNamara)

2. Was act in the scope of duties?