While the objective of every safety professional is the prevention of accidents, the well-rounded professional must unfortunately prepare for and when required, effectively execute, major accident investigations. However, often overlooked in the rush to investigation and evaluate an accident incident, are the actions a safety professional can perform that ultimately create or exacerbate legal liability where none previously existed.

Since employer and third party liability for injury and harm is based upon a combination of legal concepts, regulatory requirements, and case law, the effective safety professional must understand both the legal obligations and responsibilities of accident investigation, and the use of experts in any resulting litigation. Moreover, the safety professional must be aware of and sensitive to, both the benefits and risk of being classified as a safety or accident "expert" and conduct the accident investigation accordingly.

The goal of every safety professional engaged in accident investigation must be to maximize the investigative effectiveness while minimizing inadvertent actions that create liability.

I. Accident Liability: A Legal Overview.

From the general legal perspective, a "tort claim" results from injuries or harm to an individual by a third party. The injured party must prove the third party had a duty to prevent the injury or harm, a breach of that duty, the breach was the legal causation and causation in fact, and a resultant injury or harm.

Legal Principles of Accident Liability: the Employer.

Employer Liability: Worker's Compensation Limitations. Worker Compensation laws were enacted in most states to provide an injured worker with immediate compensation for a job related injury without having to seek redress in the courts. The trade off was that the worker was generally forbidden by the Workers' Compensation statute from bringing suit against his employer - absent certain acts such as gross negligence - for the alleged injury. However, these laws are under attack.

Terry Smothers worked as a mechanic for a trucking firm performing lube work; which resulted in exposure to acid mist and fumes. He develops respiratory problems files a Workers' Compensation claim with Oregon, which the Oregon Board turns down. He then files suit against his employer, Gresham Transfer, Inc., for negligence. Trial Court and Appellate Court both dismiss his claim because the Workers' Compensation statute is the exclusive remedy. The Oregon Supreme Court determines the State Constitution's "remedy clause" protects common law rights of action for injury. Since the Workers' Compensation statute prevents an injured party's means of redress for injuries for which a common law cause of action exists, that prohibition is unconstitutional. The Oregon Supreme Court allows the suit to proceed. It is unclear whether this decision will only apply to Workers' Compensation claims that are refused, or to all claims. (Smothers v. Gresham Transfer, Inc., 23 P.3d 333, Or.2001).

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