Safety and OSHA News

Can UPS driver sue, on top of workers’ comp, for lifting injury?

A UPS driver received workers’ comp benefits for an injury he suffered from lifting a heavy box that he says wasn’t marked with the correct weight. Can he sue the customer who sent the box, too? 

UPS delivery driver Stephen Moore was injured when he lifted a box at William Jessup University. Moore says the box was marked 48 pounds or less. He estimates it actually weighed 70-80 pounds.

Employees of UPS were trained to test the weight of a package before lifting it and not to lift packages weighing more than 70 pounds. UPS employees were supposed to roll heavy packages onto hand trucks and then roll the packages from the hand trucks into delivery trucks. A driver may also request assistance from other UPS personnel to move heavy packages.

UPS customers are required to attach warning labels to packages weighing more than 70 pounds, but labels were sometimes incorrect.

On Jan. 29, 2010, Moore was delivering a package to the university. After doing so, he saw 24 boxes stacked in the UPS pickup area of the university’s mail room. The boxes were all about the same size and shape – about the size of a photocopy-paper box. All the boxes were labeled, and they all said they weighed 48 pounds.

Moore lifted four boxes onto his hand truck without any trouble. When he lifted the fifth box, he felt pain in his wrist, shoulder and neck. Moore estimated the fifth box weighed 70 to 80 pounds. If the shipping label had said it weighed that much, Moore says he would have slid the box instead of lifting it.

He received all available workers’ comp benefits for his injuries. Most of his medical bills were paid by the workers’ comp insurer. When doctors said his condition had stabilized, they calculated his cumulative disability rating to be 5%.

Moore sued the university for negligence. The university sought to get the case thrown out on the ground that it didn’t owe a duty to protect Moore from injuries arising from lifting heavy boxes, which was an inherent risk of his job. The university said it also didn’t increase the risk inherent in Moore’s job.

The trial court granted the university’s request to throw out Moore’s lawsuit. He appealed.

Duty of care

Moore argued the trial court erred in throwing out his lawsuit because the university increased his risk of injury.

The university’s argument relied on what’s known as the firefighter’s rule: It’s unfair to charge an employer with a duty of care to prevent injury to the employee arising from the very condition or hazard the employer has contracted with the employee to confront.

Example involving police officers: A member of the public whose misconduct requires police intervention doesn’t owe a duty of care to the responding police officer.

In a case involving a tow truck driver who was injured while assisting a car owner on the side of a highway: The car owner doesn’t owe a duty of care to the tow truck driver.

On the other hand, the firefighter’s rule doesn’t bar a firefighter from suing the owners of a chemical plant who negligently or intentionally misinformed the firefighter about chemicals present at the scene of an emergency.

So, which is it in this case?

The appeals court concluded the risk of injury from lifting heavy boxes that may be labeled with inaccurate weights was inherent to Moore’s job as a UPS delivery driver, and the university didn’t owe a duty to protect Moore from that risk. The court also ruled the university didn’t increase the risk of harm to Moore.

For that reason, the appeals court agreed to throw out Moore’s lawsuit against the university.

(Stephen Moore v. William Jessup University, Court of Appeal of CA, Third Appellate District, No. SCV0030282, 12/18/15)

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