A Haul Road, A Paper Trial, And A Casino Parking Lot!

There  are  many  roads to litigation.  Some are on  asphalt  and
others are on paper!  Some never leave the parking lot.

In  the asphalt category, a worker was killed on the job when his
brakes  failed  while driving on a heavily loaded  truck  down  a
steep  haul  road.  The decedent's family filed a wrongful  death
action  against  the  employer rather than proceeding  under  the
Worker's  Compensation  Act.  The family argued  that  since  the
company's   truck   and  haul  roads  were  so  chronically   and
deliberately left unmaintained and unsafe, the company's  conduct
constitutes  an utter disregard for the life and  safety  of  its
employees.   On this basis, the family argued that  their  rights
should not be limited to the recovery provided for under worker's
compensation.

In analyzing the situation, the Court of Appeal described the so-
called  "compensation  bargain"  afforded  employees  under   the
worker's compensation laws.

As  a  general rule, the right to recover compensation under  the
Worker's  Compensation  Act is the exclusive  remedy  against  an
employer  for  injury  or death of an employee.   The  basis  for
exclusivity is the "compensation bargain"

                "pursuant to which the employer assumes
          liability  for industrial personal injury  or
          death without regard to fault in exchange for
          limitations on the amount of that  liability.
          The employee is afforded relatively swift and
          certain  payment  of  benefits  to  cure   or
          relieve  the  effects  of  industrial  injury
          without   having  to  prove  fault  but,   in
          exchange, gives up the wider range of damages
          potentially available in tort."

The  Court notes that there are essentially three classifications
of injuries arising in the course of employment:

      (1)   Injuries  caused  by employer negligence  or  without
employer fault that are compensated at the normal rate under  the
Worker's Compensation Act;

      (2)   Injuries resulting from the employer's  "serious  and
willful  misconduct" for which a 50% increase in compensation  is
afforded the employee; and

      (3)  Intentional employer conduct "which bring the employer
beyond  the  boundaries of a compensation bargain,  for  which  a
civil action may be brought.

In  this situation, the Court held that the worker's compensation
remedy was the exclusive remedy and observed:  "It is an expected
part  of  the  compensation bargain that industrial  injury  will
result  from  an  employer's  violation  of  health  and  safety,
environmental and similar regulations."

On  the  paper  road to litigation, a loving husband  signed  his
wife's  name as well as his own to a promissory note and a  trust
deed  upon the family residence and had both signatures notarized
by a notary for his friend's company.

In  this  situation, the litigation trail found its  way  to  the
notary who, among other matters, was held accountable for damages
attributable to negligent affliction of emotional distress.

In  another recent case, the litigation trail passed through  the
parking  lot of a casino operated by the Cabazon band of  Mission
Indians.

In  this situation, the plaintiff and his wife visited the casino
to "eat supper and play bingo".  The Court observes:

                "As the couple left the casino to go to
          their car after the bingo game, a fight broke
          out   among  the  other  patrons.    Although
          plaintiff was not a participant in the fight,
          he  was knocked off his feet by the fighters,
          breaking his hip and shattering his elbow."

The  Court  of Appeal determined that the plaintiff's action  was
barred  by a doctrine known as "sovereign immunity".  As a matter
of  Federal law, an Indian tribe may be sued only where  Congress
has  authorized  the suit or the tribe has waived  its  immunity.
The Court also noted that:

               "It appears to be settled that a tribe's
          sovereign   immunity  is   not   limited   to
          governmental  activities,  but   extends   to
          commercial activities as well, and  that  the
          immunity applies to tort claims."

The  moral  of the story?  The admonition of, "Follow the  yellow
brick  road!"  is  guaranteed to result in success  only  in  the
movies!

[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1999-2002