Worksite Injury Issue #2 --- Apportioning Fault

Brooks Schuelke

Contributor

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Texas is a comparative fault state.  That generally means that each defendant is only liable for its proportionate share of damages (though there are several exceptions).  I'll use our example of the L&O worker killed by the forklift as an example.

Let's assume that the forklift was driven by an employee of the general contractor, that there is no worker's comp insurance, and that the worker's family is awarded $100,000.00.  The jury will be asked to apportion fault between the driver of the forklift and the deceased, and the damages will be awarded based on that percentage.  If the jury finds that the forklift driver was 60% responsible and the deceased 40% responsible, then the driver's family would be awarded $60,000.00.

However, things can be different in a construction accident case.  One situation can occur when an employee is suing his own company and that company does not have worker's compensation insurance.  One penalty the worker's compensation system provides is that non-subscribing employers are denied their defense of comparative responsibility.  Thus, if the worker can show that the employer is 1% responsible for his injuries, then the employer is responsible for all the damages.  Assume this time that the driver of the forklift was also an employee of L&O and that L&O was not a subscriber to the worker's compensation system.  If the jury was again to find that the family was entitled to $100,000.00 and that the forklift driver was 60% responsible and the deceased 40% responsible, then the worker's family would be entitled to the full $100,000.00.

A third situation that is also common in worksite injury cases occurs when the worker's employer has worker's comp and is partly to blame, but other parties also have some liability.  Let's say that the driver of the forklift worked for the general contractor, but the general contractor successfully argues that L&O, the worker's employer, didn't train the worker properly and so contributed to the incident.  And suppose the jury buys this argument and puts 50% of the fault on the general contractor, 30% on the deceased, and 20% on L&O.  In this case, any damage award would be reduced by 30% for the deceased's own responsibility, and because the claims against L&O are not recoverable due to its worker's comp insurance, those damages aren't recoverable either. 

So that's the second question.  Once you have figured out whether worker's compensation insurance is available, the attorney should evalute the potential comparative responsibility scenarios.