3rd Circuit Ruling Regarding Workplace Injury – Part 3 of Series

Though Mr. Herbert’s primary argument was that he was outside the scope of his employment, he argued in the alternative that, even if the injury occurred within the scope of employment, the Defendants committed an intentional tort. Such a tort is the only recourse available to defeat a workers’ compensation defense when the injury occurs within the scope of employment. When making an intentional tort claim one must prove that the act that resulted in the injury was intentional. An intentional act requires the actor to either consciously desire the physical result of the act or know that the result is substantially certain to occur from his conduct. “Substantially” in this context requires more than a probability that an injury will occur and “certain” alludes to inevitability. Negligent, reckless, or wanton action is not enough to satisfy an intentional tort. These high standards make it difficult to succeed in a suit for intentional tort within the workplace.

Mr. Herbert was unable to succeed in his alternative argument because no proof was provided that either Industrial or GMI desired to harm Mr. Herbert or that the companies were substantially certain that the injury would occur from the companies’ acts. The court concluded that there was no evidence to prove that safety modifications made to the helicopter were an intentional cause of the injury. Neither the Plaintiff nor the Defendants felt that the safety harness used was unsafe, which defeated any claim that the Defendants knowingly acted to cause harm to Mr. Herbert.

In addition to the intentional tort, Mr. Herbert also claimed that the Defendants were responsible for spoliation of evidence. Spoliation of evidence is an intentional tort that impairs a party’s ability to prove a claim due to negligent or intentional destruction of evidence. In essence, the ability to make a claim for spoliation of evidence protects not only the claimant’s rights to suit, but also the court’s ability to provide justice. The key question in these claims is whether or not the defendant had a duty to preserve the evidence for the plaintiff. A duty of preservation may arise through contract, statute, special relationship, agreement, or an already acted upon undertaking to preserve the evidence. Because spoliation of evidence can be satisfied by an act under a negligence standard, this claim is easier to succeed on than one for any other intentional tort.

For the above reason, the trial court’s ruling in favor of the Defendants in the Herbert case was reversed on appeal. The 3rd circuit found that defendant Richards did not seek out a missing piece of lanyard and a carabineer attached to Mr. Herbert’s safety harness that fell out of the helicopter with Mr. Herbert. Though it is indeterminable whether or not Mr. Richards failed to seek out the missing safety components in an attempt to sabotage Mr. Herbert’s claim, a question of fact remained that required the issue to be remanded.

When an injury occurs in the workplace, it is important to consider whether or not the injury was a product of the employment. If not, then you may sue your employer for a variety of torts. However, even if the injury happened while within the scope of employment, a suit may lie if the tort was intentional. When within the scope of employment, this is the only way to defeat workers’ compensation tort immunity.

Though the above article may be helpful in deciding a course of legal action, it should not in any way replace the advice of a practicing attorney. If you have questions about your personal injury claim, please contact the Berniard Law Firm.

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