Representation of Injured Workers in Civil Court Actions

At The McGrath Firm a primary focus of our practice is the representation of workers and their families who have been injured or killed in the course of their employment. Mark McGrath has successfully representing workers and their families for over 15 years and has recovered tens of millions of dollars on their behalf. We would consider it a great honor to represent you if you or a loved one has been injured or killed while working.

In North Carolina injured workers have two avenues for recovery when they are injured on the job, actions for workers’ compensation to be brought before the North Carolina Industrial Commission, and civil suits filed in North Carolina courts against parties other than the employer. We do not represent clients in workers’ compensation cases. We happily refer our clients who have valid workers’ compensation claims to attorneys specializing in that area of law. We focus our practice on the representation of clients who have valid claims against individuals and businesses other than their employer. These claims are known as third party claims.

Effect of workers’ compensation laws on third party claims
The North Carolina Workers’ Compensation Act (the “Act”) represents a compromise. The Act provide benefits to injured workers regardless of employer fault, but in exchange workers are barred from pursuing civil lawsuits against employers and co-employees in court. This is known as the “exclusivity” rule. It provides that workers may not, except in rare circumstances, sue their employer or co- employees in court to recover civil damages.

Typically, injured workers who are injured on the job are eligible for benefits under the Act. The Act provides limited remedies including death benefits, disability benefits, and payments for medical expenses. Recovery is not allowed for other damages such as emotional and physical pain and suffering. Such damages are recoverable in a civil court action.

Although many workers don’t realize it, they may have a cause of action against a person, business or governmental entity other than the employer. There are also two very narrow circumstances that will allow you to seek civil damages from your employer or co-employee.

Actions against employers.
North Carolina courts have created a very narrow exception to the employer immunity provided by the Act. In the case of Woodson v. Rowland the North Carolina supreme court held that injured workers could proceed directly against the employer when the employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to the employees. Unfortunately, since Woodson was decided courts have almost universally held that the conduct of the employer at issue fails to meet the standard articulated by Woodson. Most of these cases have been dismissed early in the proceedings, long before the case reached trial. Still, Woodson claims should be pursued against the employer whenever the facts of a given case meet this difficult standard.

Actions against co-employees
Claims against co-employees are similarly difficult. Generally speaking, claims against co-employees are barred by the Act. The North Carolina courts have, however, created a narrow exception to this rule.

The leading case is Pleasant v. Johnson. In that case the state supreme court held that suits could proceed against co-employees when the conduct of the co-employee constituted willful, wanton and reckless negligence. While this standard is less stringent than Woodson, it still sets a high bar for plaintiffs who are seeking recovery against co-employees. In a recent case, however, the North Carolina court of appeals held that where a supervisor ordered an unqualified worker to work on energized power lines, a suit could be maintained against the supervisor under Pleasant.

Although direct claims against the employer and co-employees are very difficult, we have the knowledge, perseverance and experience to give such claims every chance of succeeding on the merits. If you wish to pursue such claims, please contact us for a free consultation and case evaluation.

Actions against third parties
The prospects are much brighter for claims against third parties. A third party is any person or entity other than a co-employee or employer of the injured worker. Claims can be maintained against third parties without running afoul of the exclusivity provisions of the Act.

This can be a trickier exercise than it might first appear. For example, assume that a worker is injured on the job while working at a national fast food restaurant. The worker may identify his employer as the national chain. Most workers at establishments like these, however, are actually employed by local franchisees or subsidiaries of a larger corporate entity. The businesses are typically separate and legally distinct companies. Accordingly, if the facts establish an independent duty owed by the third party to the injured worker, claims can be pursued against that person or entity without violating the Act.

A case Mark McGrath handled several years ago provides a good illustration of this principle. A young woman was murdered while she was working for a national payday lending company. Let’s call it Payday Loans, Inc. Her actual employer was Payday Loans of North Carolina, an entity that did little more than process the payroll for workers in North Carolina. The case came to Mark to evaluate it for a potential third party claim. The file contained a fair amount of investigative material that bore the name of an entity other than the employer. During discovery we determined that this separate entity was a corporate relative of Payday Loans of North Carolina. We were also able to determine that this legally distinct third party was responsible for providing security to Payday Loans establishments across the country. Since it was a legally separate entity we were able to proceed against it with a third party claim. Since we were able to establish that the third party entity provided inadequate security where the murder occurred, we were able to achieve a successful settlement on behalf of the victim’s family.

Common Third Party Scenarios



Corporate Layering
When reviewing files to identify potential third-party claims, we try to keep common third-party fact patterns in mind. One of the most common claim scenarios is we have come to call the “corporate relative” case.

It is important to keep in mind that the exclusivity bar of the Act protects only the specific corporate entity (the actual w-2 employer) that employs the claimant. As long as the third party claim alleges an independent duty owed by a corporate relative (for example parent corporations, sister corporations, subsidiaries, franchisors and franchisees), a civil action can proceed against that third party. For example, one court held that a premises liability claim could proceed against the owner of the facility where the plaintiff worked, even if the plaintiff’s employer was a wholly-owned subsidiary of the facility owner.

In order for a corporate relative to be liable, claimants must identify an independent duty owed by that entity to the claimant. The liability cannot be established through principles of agency. For instance, an action alleging that a corporate relative controlled the operations of the employer and was therefore liable for the employer’s negligence under principles of agency will fail by operation of the Act.

In evaluating these cases we will analyze how the businesses operated on a day to day basis. For example, did a given corporate relative assume the duties of the employer? Was this relationship formalized in any way, typically by contract? If not, did the corporate relative assume the duties of the employer by an established course of conduct? If the answer to these questions is yes, claims may be pursued against the non-employer corporate relative.

Construction Accidents


Construction work is dangerous work. Construction accident settings provide fertile ground for third party actions. Given the number of companies, contractors and laborers on a given site, third party liability might be the rule rather than the exception.

In most cases, careful analysis of the parties and the various contracts governing their duties and responsibilities is the key to success. A recent case handled by Mark McGrath illustrates this point. A worker fell through an unguarded opening in a floor during a building project and suffered a serious injury. The contract documents indicated that another contractor on the project was responsible for guarding openings during construction. Based on these contractual provisions, the worker successfully recovered against the contractor that was contractually obligated to guard floor openings.

A variety of statutes, codes, rules and regulations will also impact liability in a construction accident cases. These include, for example, comprehensive and complex OSHA regulations that govern the performance of work on a construction project. Mark has the knowledge and experience to navigate and apply these laws in the cases that he handles.

Who is responsible for construction accidents?


Construction site owners
When an owner hires a general contractor to perform work on his property, the owner owes a duty of reasonable care to the contractor and his employees. The duty of due care includes an obligation to exercise reasonable care to furnish reasonable protection against hidden dangers known to the owner and not to the contractor or his employees. The duty requires a property owner to make a reasonable inspection of the property to identify hidden dangers. Violation of this duty is negligence.

Liability can also be imposed against an owner when the work performed by the contractor involves an inherently dangerous activity. If the work is inherently dangerous the owner will be found to have a non-delegable duty to provide a safe workplace to workers on the project.

An owner can also be held liable for the violation of duties that it has assumed by contract. For example, if an owner retains the duty to supervise the worksite and address unsafe practices it may be sued by workers on the site for negligence. The same rule applies if the owner assumes this duty through a course of conduct outside of the contractual relationships. For example, if the owner develops a practice of inspecting the worksite and reporting unsafe work practices he may be found liable for negligently discharging those duties.

The owner may also be legally responsible for injuries on the site if he controls the details of the general contractor’s work.

General contractors
A general contractor is generally not responsible for injuries suffered on the job by employees of subcontractors. General contractors can be held liable for injuries suffered on the worksite when they arise from an inherently dangerous activity.

General contractors can also be legally responsible for accidents when they contractually assume duties for ensuring workplace safety and when they voluntarily assume a duty for ensuring safety.

General contractors can also be found liable for injuries to a subcontractor’s employee when the general contractor retains control over the details of the subcontractor’s work or where they negligently hire or retain the subcontractor.

Subcontractors
Subcontractors are liable for the negligence that their employees commit on the site. For example, if a subcontractor creates a hazard on the site that causes a worker’s injuries, the subcontractor will be held liable for that injury.

Architects, Construction and design professionals
Although no North Carolina court has yet addressed the issue, courts in other jurisdictions have held architects, supervising engineers and other design professionals liable for injuries suffered as a result of designer negligence. The cases have tended to find liability when the designer has assumed by contract or conduct the duty to supervise the work on the project and ensure that the project work is being safely performed.

Industrial accidents
Industrial mishaps frequently arise when owners of industrial plants have dangerous conditions in their plant such as defective or poorly maintained equipment. The types of industrial accidents include releases of hazardous substances, gases and chemicals, electrical accidents, explosions and fires.

Defective or improperly maintained equipment inside the facility at issue is a frequent cause of worker injury. In one industrial accident case Mark McGrath represented two electricians who were severely injured when a piece of improperly maintained electrical equipment caused a major arc flash which in turn triggered an aluminum dust explosion. Both men survived but suffered horrific and debilitating injuries. In another case Mark represented a worker who suffered traumatic amputation of his arm while attempting to repair a defective conveyor belt system. He recovered large settlements in both cases.

In these kinds of cases the owner is responsible for identifying and remedying dangerous conditions in their facilities. Failure to do so will expose owners to liability for injuries caused by the condition. Others may be liable at well. Any contractor or person working in the facility performing dangerous work is responsible for injuries suffered by workers in the facility. For example, if the employee of a subcontractor negligently assembles piping containing a hazardous substance, the subcontractor will be liable to any workers injured by the release of the substance.

Industrial explosions and fires can be especially deadly. Industrial explosions can be caused by a number of factors. Allowing combustible dusts or gases to accumulate in a facility can trigger a serious explosion causing severe injuries and death to workers in the plant. Faulty wiring and negligently maintained electrical equipment can also trigger an explosion.

Workplace violence.
OSHA defines workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

In workplace violence cases third party actions can be asserted against a host of responsible parties. If the violence is committed by a co-employee, the victim will be able to assert claims against the co-employee. Depending on the facts of a given case, claims may also be asserted against any person or entity other than the victim’s employer. For example, civil actions can be asserted against the owner of the property where the violence occurred (if the owner is not the employer), franchisors, parent corporations and other companies corporately related to the employer in some way.

Job-related automobile and trucking accidents
Automobile accidents are the leading cause of workplace injuries and fatalities. When a worker is injured while she is working, she can pursue an action against the negligent driver who caused her injuries without running afoul of the Act.

Mark McGrath much of his professional time representing workers who have suffered serious job-related injuries. Mark has spoken at seminars about third party claims and has written and published numerous articles about issues arising during third party litigation. Mark McGrath has 17 years of experience of representing injured workers against responsible third parties in civil suits. He has collected many millions of dollars on behalf of injured workers and their families for serious workplace injuries. Before his representation of injured workers, Mark defended large businesses and insurance companies against such claims. He knows how these types of businesses work, what their strategy is toward handling worker injury cases, and perhaps most importantly, knows how to persuade and negotiate with them to obtain maximum compensation for your work injury. Mark is also compassionate, feeling deeply the pain and hardship that accompany being the victim of a debilitating injury. Rest assured, we care deeply about what you have suffered through.

At The McGrath Firm we are kind and compassionate, but we will fight tirelessly and aggressively to obtain justice for our injured clients. It would be Mark’s privilege to represent you in connection with your workplace injury case. Please contact us now for a free consultation and case evaluation.