New Mexico Injury Attorney Blog

The New Mexico Court of Appeals case, Chairez v. James Hamilton Construction Co., discussed in my prior post also addressed issues related to exclusive remedy of worker's compensation for employees injured on the job. Most states have statutes similar to New Mexico limiting an injured worker's claims against a negligent employer to worker's compensation. As was the case in Chairez, there are exceptions for injuries caused as the result of the negligence of a third party.

In Chairez, the deceased plaintiff's estate (plaintiff) sued the manufacturer for a defective rock crusher under product liability law. The defendant's motion for summary judgment due to modification of the equipment by the plaintiff's employer was denied. It was clear that the employer's modification of the rock crusher by removing a critical safety feature was negligent and contributed to the death of the plaintiff.

Due to New Mexico's exclusive worker's compensation remedy against the employer, plaintiff was unable to bring a claim against the employer despite the employer's obvious negligence, and arguable recklessness. The court cited the seminal 2001 New Mexico Supreme Court case on the issue of Delgado v. Phelps Dodge Chino in support of its discussion.

The Court laid out the requirements set forth in Delgado for the waiver of worker's compensation protection by an employer. Delgado holds that an employee can bring an action against the employer for work related injuries in very rare situations. The court in Chairez stated the Delgado factors as; "(1) he or she can establish that the employer engaged in an intentional act or omission without just cause that is reasonably expected to result in the injury to the worker; (2) the employer expected the intentional act or omission to result in the injury; and (3) the intentional act or omission proximately caused the injury."

Thus, the hurdle for getting past worker's compensation exclusivity is very high. In Chairez, the plaintiff was unable to clear this hurdle despite the obvious negligence of the employer in removing the safety features from the rock crusher.

Unfortunately, New Mexico like most states, provides far greater protection for the employer than the injured employee. The statute is drafted as if it is meant to protect employees. In reality, it is there to protect employers. The result is that countless workers each year in New Mexico and in other states are gravely injured or killed by the negligence and/or recklessness of their employers. The root of the behavior is often economic as in Chairez where the safety mechanism was removed so that the rock crusher could be cleaned faster to minimize down time.

Worse still, workers or their surviving families receive only nominal awards from for their damages. They receive pennies on the dollar for their lost wages which may be permanent and total. They receive only trivial awards for the rather cynically and miserly computation of their impairment ratings for permanent injuries. They do receive medical costs, past and future, associated with the injury. If the insurance companies can find a way around this, they do. The injured employee receives no other compensation for pain and suffering, loss of consortium, loss of enjoyment of life, loss of household services or any other losses.

In the end, society pays through Social Security, Medicaid, Medicare and other governmental programs. Thus, taxpayers are left to cover losses that should rightfully be paid by the businesses that caused them.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The New Mexico Court of Appeals addressed for the first time in under New Mexico law whether modifications to a product by the user provides a complete defense to a product liability claim. The court in Chairez v. James Hamilton Construction Co. held that it did not and that a seller could be held strictly liable under product liability law for injuries caused by the product when the modifications to the product were foreseeable.

The case involved the modification of a rock crushing machine. The user, the deceased plaintiff's employer, had removed a metal plate covering a flywheel to facilitate removing debris and obstructions in the machine that occurred during operation. The metal plate was a safety feature designed to prevent users from being caught in the flywheel and crushed by the machine. This is in fact what happened to the deceased plaintiff. In addition, the deceased had been removing a jam while the machine was operational despite clear warnings in the user's manual against such behavior.

The plaintiff was prevented from bringing a claim against the clearly negligent employer due to the exclusive worker's compensation remedy under New Mexico law. The plaintiff did bring an action against the defendant manufacturer under a product liability theory. The defendant argued that the modifications to the machine provided a complete defense to the product liability claim. The defendant filed a motion for summary judgment on this ground. The district court granted the defendant's motion and dismissed the claims.

A number of states do indeed hold that alteration or modification of a product by an end user does provide a complete defense. However, as noted by the Court in Chairez, "Most states will not absolve a manufacturer or seller from liability as the result of an alteration or modification that was reasonably foreseeable." The court stated that New Mexico would follow the majority position.

The defendant had further argued that the modification was not foreseeable as a matter of law The court again disagreed holding that the issue of the foreseeability of the modification was an issue that should be left to the jury. The New Mexico Court of Appeals therefore reversed the district court's grant of summary judgment. The court was careful to add that it was by no means suggesting that the modification was foreseeable. Instead, the court reiterated that this was a question of fact best determined by a jury.

Likewise, the issue of the comparative negligence of the employer would need to be addressed by the jury. Assuming the jury did award damages to the plaintiff, the total amount of the award would then be reduced by the percentage of fault attributed to the employer. Unfortunately, the deceased plaintiff would be out of luck for this portion of the damage award due to the exclusive workers compensation remedy against the employer.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

Construction accidents can be devastating. They are generally far more serious than other workplace injuries. Often times, unlike run of the mill workplace accidents, construction accidents result in permanent injuries and even death.

Workers compensation laws, including those in New Mexico, presumably drafted to protect workers instead generally place a grossly inadequate cap on the amount and types of damages that can be recovered for a workplace accident. The statutes are really for the protection of the employer, not for the employee. Workers compensation statutes protect the employer from any claims of negligence though the cause of workplace accidents is often the result of unsafe work environments, inadequate training, unsafe and unqualified co-workers, dangerous and poorly maintained equipment and a hosts of other preventable causes. In essence, the employer is shielded from any liability for the worker's injuries and damages except in the most extreme cases of recklessness.

In order for an injured worker to recover for what in a construction accident could be catastrophic injuries or death, the worker must identify a third party beyond the employer that is responsible for the accident.

In a recent case in Texas, the attorney did just that. The case is very interesting for a number of reasons not the least of which was the $11 million jury verdict in favor of the deceased construction worker. Perhaps, more interesting from a legal perspective, was the plaintiff attorney's ability to tie liability to the employer's parent company escaping the limitations of the worker's compensation statutes.

Because the deceased plaintiff's estate was barred from suing his employer, the attorney ingeniously argued that the defendant's (Gulf Marine Fabricators) parent company (Gulf Island Fabrication) was responsible for the plaintiff's death. The attorney did admit to the jury that there was some fault lying with the employer, but argued that the parent company carried the bulk of liability for the crane accident which resulted in the plaintiff being crushed to death. The jury assigned only 15 percent liability to the employer. The remaining 85% liability accounted for the $11 million wrongful death jury verdict.

The plaintiff's attorney was able to show that the parent company and not the employer controlled the crane operations. The parent company controlled every aspect of the crane operations from hiring and firing to daily operations. Oddly, but by necessity, the defense attempted to place all the blame on the employer, a related company, to gain the protective shield of the workers compensations statutes.

The fact that a defense attorney would attempt to place blame on a company related to his own client clearly illustrates the reality that workers compensation statutes should really be called employer protection statutes. These statutes have sad and tragic consequences for workers and their families. Neither the worker nor his or her family will recover anything close to actual damages in cases of serious injuries or wrongful death. It takes little imagination to envision the economic harm, let alone the pain and suffering, that occurs when a worker is permanently injured or killed.

Unfortunately, the workers compensation statutes are here to stay. As such, if you or a loved one are injured or killed on the job, it is important that all possible causes of the accident be determined. It may very well be that the workers compensation statutes can be avoided by identifying third party liability for the accident. Or as the ingenious lawyer in this case was able to do, tie the liability to a related corporate entity not protected by the worker compensation statutes.

www.CollinsAttorneys.com