Tag Archives: negligence

The hidden legal hazards of icy side streets

Posted on by
Icy residential streets in Lincoln caused problems last week for commuters and workers alike. (Photo via Google Images and 1011now.com)

I usually flip through the FM dial on my drive into work in the morning. Last Tuesday, I flipped to Lincoln Top 40 mainstay, KFRX, and heard a delivery driver talk about the hazards he encountered on Lincoln’s icy side streets.

Icy side streets, plagued Lincoln from Air Park to Vintage Heights until last Wednesday. But this hazard can create other kinds of hazards for workers who are forced to navigate slick side streets.

While icy residential streets may seem like a preventable hazard, the law gives cities like Lincoln little incentive to clear side streets.

Hidden hazards of slick streets for delivery drivers

When the roads are bad and weather conditions are cold, most people don’t like leaving the house. With the advent of online shopping and food delivery apps, consumers can order food, shop online, and stay inside.

But someone needs to deliver what is ordered online. Those delivery drivers who bring those goods are at an increased risk of injury and property damage due to icy side streets.

Assuming a delivery driver is an employee, injuries from icy roads incurred in the course and scope of employment should be covered by workers’ compensation.

But many delivery drivers are classified as independent contractors. Most if not all, delivery people, should be employees for the sake of workers’ compensation. But workers don’t always know their rights and often intimidated by employers. As a result, misclassified delivery drivers may end being stuck with the costs of their own work injury.

Third party claims for icy driveways and sidewalks, but not icy streets

If the injury is the fault of someone else, an independent contractor can bring a negligence claim. Even a worker covered by workers’ compensation claim can bring a so-called third-party claim if another party besides them or their employer is at fault for their injury.

But not all negligence related to icy conditions is legally actionable. Yes, a delivery driver can sue a homeowner who doesn’t remove snow for negligence. But thanks to sovereign immunity, it’s difficult if not almost impossible to sue a city for not clearing icy side streets.

Kings don’t need to plow their subjects side streets

Sovereign immunity is a legal fiction borrowed from English law that you can’t sue the king for his wrongs. The Declaration of Independence, George Washington, the Battle of Yorktown and all that other good stuff aside, American governments decided to adopt this British doctrine. (After all, it’s good to be king)

In Nebraska, the Political Subdivisions Tort Claims Act (PSTCA) dictates how and for what conduct political subdivisions can be sued. Political subdivisions, like cities, can’t be sued for decisions made by policy makers. These functions are called discretionary functions. Lincoln Transportation and Utilities Director Tom Casady, a former Lincoln police chief and longtime city hall fixture, used exactly that language in explaining (or excusing) why the City of Lincoln waited until Wednesday to plow side streets.

In addition, just for belt and suspenders to use a legal term, political subdivisions can’t be sued about snow and ice removals on public roads.

Strong-mayor systems and sovereign immunity

Lincoln (and Omaha) are governed under so-called strong mayor systems which means appointed officials within the executive branch are given broad leeway to make policy decisions. This probably gives Lincoln officials another layer of legal protection against litigation over poor street conditions.

Solutions for slick side streets?

A combination of warmer weather, more snow and probably some public outcry lead Lincoln to plow side streets. A more long-term solution for slick side streets in Lincoln could lie with the City Council voting more money for snow and ice removal. The Legislature could also modify the PSTCA to allow cities to be sued over snow removal. Either scenario seems unlikely at present.

Ultimately residents could band together to clear side streets on their own through homeowners and neighborhood associations. I don’t like that option in the long run or big picture because it would tend to favor wealthier neighborhoods and would undermine confidence in government in general and city government in particular.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Uncategorized and tagged , , , , , .

Mold on the job: not just workers’ compensation

Posted on by

Mold doesn’t have to be this obvious to be harmful in the workplace.

Teaching is not thought of as a hazardous job, but 120 teachers in Stamford, Connecticut have filed workers compensation claims due to mold exposure that effects half of the buildings in their district.

Mold is a relatively common hazard for white collar employees. When mold infests a building, it is common to have many employees affected. Mold is sometimes visible other times it can be hidden in insulation. Mold exposure is typically thought of leading to hayfever like allergic symptoms, but it can also lead to symptoms like chronic fatigue, irritable bowel syndrome and weight gain. About 25 percent of people are especially sensitive to mold and that sensitivity can be tested for by doctors.

In Nebraska, an employee just needs to show that an occupational factor or factors were a contributing factor to the injury. An employee exposed to mold in Nebraska should be able to collect workers’ compensation benefits for mold exposure even if they had pre-existing allergies or mold sensitivity. But other states have more stringent causation standards, so it could be harder to receive workers’ compensation benefits for mold exposure in those states.

The mass mold exposure by teachers in Stamford, Connecticut raises many interesting legal issues outside of workers’ compensation.

Challenges of collective action in the workplace

The first issue is the question of collective action when 120 employees are injured by a common hazard. The teachers are fortunate to be represented by a union. A union can be helpful in accommodating work injuries and helping employees gather information that can prove their workers compensation case. In a case of mold exposure, it is important to gather information about mold levels so doctors have sufficient foundation to relate symptoms to mold exposure. A union is helpful in getting such information.

But public sector unions are under attack by recent and upcoming Supreme Court litigation.  The National Labor Relations Act (NLRA) gives nonunion employees some right to act in a group or collective manner about the terms and conditions of their employment. But that right may have been limited by the Epic case decided by the Supreme Court at the end of the 2018 case.

Fortunately claiming workers compensation is a protected activity in most states. That means employees facing a common cause of injury would be protected from retaliation for pursuing workers compensation claims. Some states, like Nebraska, also have whistleblower statutes that would protect employees from reporting hazardous work conditions.

In cases where many people have suffered a common harm, they can file a collective or class action case. I don’t know if Connecticut allows for such claims in workers compensation. But a collective or class case in workers’ compensation could be a simpler and less epxenseive to handle workers’ compensation cases involving mass mold exposure.

Third party claims

Collective or class litigation is generally allowed in cases of mass negligence. Fault usually doesn’t matter in workers compensation, but if a third party is at fault for a work injury the employee (and in Nebraska the employer as well) can sue that third party. A third-party case usually gives an employer some right of subrogation that allows them to be repaid some of what they paid the employee in workers’ compensation benefits.

In a case of mass mold exposure employees and employers could be looking to sue a landlord or builder for negligent construction or maintenance. But if s third party didn’t cause the injury, employees are stuck with defined workers compensation benefits and employers have no hope of being repaid for workers compensation benefits they paid to employees.

The downside to s third party claim is that they usually require more expense to prove negligence. In my experience handling individual mold exposure workers compensation cases, the value of the claims usually would not justify the expense of third-party litigation. But if enough employees are joined in a case, it would make sense economically to pursue a negligence case.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in employment law, Nebraska, third party claims, Workers' Compensation and tagged , , , , , , , .

Workers’ Compensation Claim May Lead to Other Claims, Too

Posted on by

Two recent incidents involving truckers and grain-processing plant workers in Nebraska make clear that work injuries don’t always just involve workers’ compensation claims. Workers’ compensation claims can lead to claims of negligence by third parties and/or develop into claims against employers for retaliating against employees.

The fundamental idea of workers’ compensation is that an employee can be compensated by the employer, regardless of fault, for a work injury. In exchange, the employee agrees to damages that are capped by law. However, if an injury is the fault of someone besides the employer, then that party can be sued for negligence. Such an incident may have happened in Lincoln earlier this week. One person was in critical condition at the hospital after he was hit while unloading a parked semi-trailer, according to this article.

“… the driver of a Freightliner full-sized delivery van reversed out of the loading dock area of Hy-Vee. As he backed up, he checked his mirrors but didn’t see another man unloading a parked semi-trailer, who was also delivering product to the store, Officer Katie Flood said.”

It appears that Mr. Scott L. Johnson, the 51-year-old Lincoln man who was hit, was the driver of the semi and was pinned between the van and his rig.

“He was out of surgery and in critical condition at Bryan West Campus Monday night, Capt. Bob Farber said.”

The incident at the Hy-Vee loading dock in southeast Lincoln just illustrates the danger posed to truckers and workers who load and unload trucks and rail cars. This danger was highlighted by the Occupational Safety and Health Administration’s proposed fines to sanction a firm in Alliance, Nebraska, for unsafe conditions in a grain processing plant. OSHA’s Local Emphasis Program for Grain Handling hazards led to the inspection, where investigators found 17 violations and proposed $61,000 in fines.

Violations included “fall hazards up to 15 feet while accessing the tops of rail cars and from ladderway openings and platforms lacking guardrails and open-sided work platforms …”; “grain dust explosion hazards …”; “personal protective equipment needs were not evaluated …”; and “lack of an occupational noise monitoring program including audiometric testing, noise monitoring and fitting and correct use of hearing protection …” were found, among other concerns.

“New Alliance handles and processes Great Northern and Pinto dry edible beans at locations in Alliance, Bridgeport, Gering, Hemingford and Mirage Flats. The company is a division of Alliance-based Western Cooperative Company known as WESTCO,” according to this news release.

An employee who reports an injury from an unsafe condition might also be opposing potentially illegal conduct by an employer and could have a claim beyond just a work-injury claim. These claims can often arise when employers discipline or terminate employees if they are believed to have been at fault for an injury. If you are being blamed for a work injury by your company, that shouldn’t stop you from filing a workers’ compensation claim, because fault shouldn’t matter in a workers’ compensation case. If you are being blamed for an injury, you might also be able to pursue a retaliation case.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , , .