We have told all of our clients you are bonkers not to start to implement and enforce drug and alcohol free workplace rules. The risks in the states KC&A covers, Illinois, Wisconsin, Indiana and Michigan are much too high—one serious injury from one drunk is potentially explosive in costs. Now we have recently learned of the following Longshore WC ruling where injuries caused by the actions of a drunk/drug abuser might lead to even heightened liability under the concept of intentional tort.
In Holmes v. Pacarini USA, et. als, Plaintiff Holmes was employed by Defendant Pacarini USA, Inc. and was performing longshore work in the Port of New Orleans when a fellow employee ran into her with a forklift and pinned her to a load of iron. Before he ran into Holmes with the forklift, the driver was apparently drinking alcoholic beverages and smoking marijuana cigarettes laced with crack.
As a result of the incident, Holmes suffered a laceration of her right leg, an avulsion fracture of the mid left foot and permanent scarring; she also missed several weeks from work. Holmes filed an LHWCA petition for damages against her employer, Pacarini and two of its employees.
At the close of discovery, Pacarini filed a motion for summary judgment, arguing Plaintiff Holmes’ tort claims were barred by the exclusive remedy provisions of the LHWCA. This legislative proviso is similar to Section 5 of the Illinois WC Act.
The trial court agreed and it granted Pacarini's motion for summary judgment. Holmes appealed, arguing the LHWCA provides employees an exception allowing her to sue her employer for an intentional act caused by a co-worker and the co-worker’s action of intentionally imbibing alcohol and illegal drugs which leads to injury was an "intentional act." Please note if your organization doesn’t proscribe such activities, it is harder to argue the employee was acting outside the scope of their employment. And on the other side, if the injured worker can point to the fact many workers are routinely impaired from alcohol and drugs in your workplace, it may be much easy to prove the inebriated worker’s intentional acts were part and parcel of their work for you because you might be said to “adopt” or approve such actions.
The appellate court began by acknowledging, under most circumstances, when a longshoreperson is injured while on the job, the employer's liability is limited to compensation benefits under the LHWCA. However, the court went on to note it had recognized an exception to the general rule and held an intentional tort was not subject to the exclusive remedy provision of the LHWCA.
The issue of whether intoxication of a longshoreman falls under the “intentional act” exception to the LHWCA had never been addressed by the appellate court. The court held the actions of the worker to intentionally ingest illegal drugs and alcohol and then getting on a forklift and injuring another employee created a material issue of fact as to whether or not the conduct of the intoxicated employee rises to the level of an intentional tort.
Accordingly, the trial court's granting of the employer Pacarini’s motion for summary judgment was reversed and the matter was remanded to the trial court for further proceedings.
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