Presentation Summary

In today's world, the Safety Professional must do more than simply attempt to prevent accidents. Legally effective prevention also requires techniques and practices that will prevent or reduce the lawsuits that seem to follow every accident. This session will address both the personal responsibilities and liabilities of the Safety Professional; and the duties and tasks necessary to limit employer liability.

From the legal viewpoint, it will highlight the identification of hazards, effective communication and training, and the significantly expanded requirements of downstream notification. The session will transform the legal traps surrounding hazard identification, risk, and notification - into real world actions and programs the Safety Professional can implement to minimize legal risk in the event of a subsequent accident.

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). O

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