An employee was struck and dragged 150 feet by a road paving machine. Now he wants to sue two supervisors.
The question: Is this case an exception to the immunity from workers’ comp lawsuits normally given to supervisors?
First, a recap of how the employee was injured.
On Aug. 23, 2007, McMurry Ready Mix employee Harold Vandre was assigned to finish shoulder work along the final sections of a road paving project.
Because the paving itself had already been completed, Vandre’s co-worker, Willie Dorsey, was assigned to move the paver to a staging area where it would be picked up and transferred back to Casper, WY.
Dorsey wasn’t the usual paving machine operator, and it was a job he didn’t enjoy because he couldn’t see everything immediately in front of the machine.
The paver had an attachment on its front end known as a window elevator which created a blind spot for the operator in front and to one side of the equipment. Supervisors knew the attachment obscured the operator’s line-of-vision. However, there had never been an accident because of the blind spot.
The machine could be driven from the left or right rear. Dorsey was operating it from the left, meaning the blind spot was to the right where the shoulder of the road was located … and where Vandre was working.
Vandre was struck by the paver and dragged about 150 feet before someone realized what had happened. Vandre suffered serious injuries, including brain damage and amputation of a leg.
Dorsey tested negative for drugs and alcohol. OSHA said it wouldn’t investigate.
Vandre and his wife filed a lawsuit alleging two of his supervisors acted willfully and wantonly because they knew the attachment on the paver created a blind spot, but failed to act and merely followed the same procedures the company had used for years.
The supervisors filed a motion for summary judgment, that is, to get the lawsuit thrown out.
A Wyoming district court granted the supervisors’ motion. Vandre appealed to the Wyoming Supreme Court.
Wyoming’s Workers’ Compensation Act says supervisors, just like the companies they work for, are immune from lawsuits for injuries “unless the employees intentionally act to cause physical harm or injury to the injured employee.”
The supreme court noted that in previous cases it had equated intentional harm to “willful and wanton misconduct,” which is defined as:
“the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know, that such conduct would, in a high degree of probability, result in harm to another.”
Vandre argued the district court erred in throwing out his lawsuit because:
- the supervisors were warned that the attachment on the paver created a blind spot, and
- despite knowing about this dangerous condition, the supervisors took no action.
However, the supreme court said those two facts don’t add up to willful misconduct under Wyoming law. There was no evidence that anyone knew of a similar accident involving the paver. The risk of someone being struck was a mere possibility and not highly probable.
The Wyoming Supreme Court upheld the lower court’s decision to throw out Vandre’s lawsuit.
State workers’ comp laws were generally written to avoid the vast majority of lawsuits that would result from employees being injured in the course of work. In exchange, workers’ comp benefits cover employees’ medical expenses and wage replacement.
In this case, Vandre needed to prove that there was “a high degree of probability” that the action of the supervisors on the road crew would “result in harm” to be able to sue his supervisors.
It’s a high standard to meet, especially when there was no previous record of accidents involving the paver. Just knowing about a hazard and the possibility of injury isn’t enough to create an intentional harm exception to workers’ comp law.
What do you think about the court’s ruling? Let us know in the comments below.
(Vandre v. Kuznia and Sjulestad, WY Supreme Court, No. S-13-0020, 10/11/13)