Despite the best precautions and the most careful workers, accidents happen in the workplace. If you are injured in a workplace accident, you may consider suing your employer. After all, you were hurt while on the job, so they should pay for it, right?
In most cases, they already do. Employers in almost all states pay into a workers’ compensation fund for this very purpose. While there is a process and a bureaucracy to work through, it is still faster than a lawsuit. Perhaps more importantly, it preempts private lawsuits in almost all circumstances.
The exception to this is for an intentional tort lawsuit. In some situations, an injury is so clearly the employer’s fault that an injured worker may go beyond workers’ compensation and sue the employer directly. This situation is rare, and despite the impression headlines may leave, most such lawsuits do not succeed. Whether employers get pressured into settling the claims is another matter, but not one for this article.
For an intentional tort lawsuit to succeed, a plaintiff must show more than a mistake or negligence by the employer, in legal terms. While a showing that the employer intended for the injury to occur is not needed, the level of culpability required for a lawsuit to succeed is high enough that, in most cases, workers’ compensation will be the only remedy.
Is Your Case the Right Case?
Three main concerns go into determining whether your case should go forward. The first one, callous as it may sound, is whether your injury is bad enough. Will you be out of commission for a few weeks or even a few months? It’s best to look into workers’ compensation. You may still want to consult an attorney, of course, as the procedure might be a bit daunting. A personal injury lawsuit, on the other hand, will likely not be worth the trouble.
If you are unsure whether your injury is bad enough, ask a lawyer. Plaintiff-side personal injury lawyers, particularly those that work mainly on contingent fees, will not take most cases that do not have the potential for a high reward. A 60-year-old worker with a broken leg is not worth as much as a 30-year-old employee with cancer that can be tied to workplace chemicals. These people will tell you up front whether you have a good chance of succeeding and getting enough to make up for the fact that, in all likelihood, you will be looking for another job once you are healthy.
Is Your Employer Likely to be Liable?
Next, consider the conduct that led to your injury. If what happened is mostly your fault, you will lose. In many states, if the danger that led to the accident is “open and obvious,” i.e., one you should have seen coming, you will lose. If your employer and your supervisor did not know of the condition that led to the injury, you will lose.
To prevail, the condition must be one that the employer or your direct supervisor knew about before you got hurt. The employer must have also made you do the dangerous task anyway, despite the known risk.
In most cases, this is a difficult to show. Employers don’t want their employees to be hurt, so intentional tort is a bit of a misnomer. Intentionally putting an employee in a known danger that leads to a substantial injury is enough, provided you can show it. If not, or if it is a close case, you may want to go the workers’ compensation route.
Money, Money, Money
Finally, you need to be able to afford to chase any potential payout and be prepared for the possibility of losing. If you are already out of work for life, you don’t need to worry about losing any more paychecks. Further, you may be waiting a while for the lawsuit to get to trial. You have to be able to live on your savings or some other amount available to you. You also need to pay your attorney.
In most cases, workers’ compensation is the only route available to compensate you for a workplace injury. If you are hurt badly enough and have money to keep you afloat before a trial, a direct lawsuit is an option. Take the time to carefully assess your situation before trying to get the big money of a potential jury payout.