Today’s post comes from guest author Tom Domer from The Domer Law Firm.
A headline article noted the following: “Virginia Court: Waiter’s choking on quesadilla did not arise out of employment.” The Virginia Court of Appeals ruled a waiter who was injured while working attempting to swallow a piece of quesadilla too big for his esophagus cannot collect worker’s compensation benefits. The injury caused an esophageal perforation and collapsed lung. The Court, however, found the injury was not as a result of an actual risk of employment. The claimant worked as a host and waiter at a local T.G.I. Friday’s restaurant and part of his work responsibilities was to make food recommendations. T.G.I. Friday’s conducted food tasting demonstration programs to introduce menu items to its staff so the staff could describe the taste to customers and recommend these items. The tastings were provided free to the employees and while the employees were on the clock. T.G.I.Friday’s required attendance but no employee was forced to eat anything they did not want to eat. The Worker’s Comp Commission found that since the worker was not required to taste anything, the injury did not arise out of an actual risk of his employment.
A causal connection must exist between employment and the risk of harm, demonstrating it would be more probable that the injury would not have occurred under normal circumstances of every day life outside the employment situation.
The Wisconsin Worker’s Compensation Division and courts would likely have come to a different result. The very first case I ever tried in the 1970s concerned a firefighter who broke a tooth on a cherry pit while eating dinner at the fire house. To be compensable in Wisconsin, the accident or disease causing an injury must arise out of the employee’s employment. While the “course of employment” deals with the time, space, and intent, “arising out of employment” is related to the origin or cause of the accident so the risk of a particular accident might have been contemplated by a reasonable person when entering the particular employment. Establishing a causal connection between the injury and employment is an essential element of compensability. A causal connection must Continue reading
Have conditions really improved for workers since the deadly 1911 Triangle Waist Co. fire?
One hundred and forty six garment workers died on March 26, 1911 in a fire that was New York’s deadliest workplace disaster until the attack on the World Trade Center 100 years later. Fire doors were locked. Trapped workers either jumped to their deaths from the 9th and 10th floors, or were consumed by the flames of the Asch Building (renamed the Brown Building and now owned by New York University) at Washington Place and Greene St. near Greenwich Village. Over 20,000 people walked in the funeral procession to honor those workers who lost their lives, many of them young immigrant women who barely spoke English.
Over the last 100 years, although workplace safety regulations were created to prevent such disasters, they still occur.
In the book Triangle: The Fire That Changed America. (Grove Press, 2003) by David Von Drehle, the horrific workplace conditions of 1911 were described on page 3:
…the 146 deaths at the Triangle Waist Company were sensational, but they were not unusual. Death was an almost routine workplace hazard in those days. By one estimate, one hundred or more Americans died on the job every day in the booming industrial years around 1911. Mines collapsed on them, ships sank under them, pots of molten steel spilled over their heads, locomotives smashed into them, exposed machinery grabbed them by the arm or leg or hair and pulled them in… workplace safety was scarcely regulated, and workers’ compensation was considered newfangled or even socialist.
Over the last 100 years, although workplace safety regulations were created to prevent such disasters, they still occur. Continue reading
Have you heard the story about the woman who ordered some hot coffee from McDonald’s, spilled it on her lap, burned herself, and sued McDonald’s for millions of dollars? Ridiculous, right? It’s the poster story for so-called “frivolous law suits.”
McDonald’s had already received and ignored over 700 reports that their coffee had burned customers.
Well, would you still think the story was ridiculous if you knew these facts?
- Stella Liebeck, 79 years old at the time, wasn’t driving when the coffee spilled – she was sitting in the passenger seat of a parked car.
- She suffered 3rd degree burns from the coffee and required 2 years of painful surgeries and skin grafts.
- Properly brewed coffee NEVER reaches a temperature where it is capable of causing burns like the ones Ms. Liebeck suffered. McDonalds kept their coffee at 185 degrees, which causes severe burns in 3-7 seconds. Home brewed coffee never gets above 150 degrees, which would not cause these kinds of burns.
- Even before Ms. Liebeck was injured, McDonald’s had already received and ignored over 700 reports that their coffee had burned customers.
- Ms. Liebeck’s initial request was that McDonald’s pay $20K, the amount of her medical treatment that Medicare would not cover. McDonald’s offered her just $800.
- After a trial, a jury of 12 ordinary people decided that McDonald’s blatant of disregard for hundreds of complaints about their coffee warranted an award (and penalty) of 2 days’ worth of coffee sales, which in 1994 was $2.7 million.
- The jury’s award was appealed by McDonald’s and reduced, and then further reduced to less than $600,000 after McDonald’s mounted a multi-year legal battle against Ms. Liebeck.
- As part of Ms. Liebeck’s settlement with McDonald’s, she was forced to sign a gag order, which prevented her from speaking about the case or the settlement. McDonald’s told its version of story to the press, while she was legally unable to defend herself or tell her side.
Hot Coffee, Susan Saladoff’s gripping and moving new documentary tells the story of Stella Liebeck and other regular Americans like her who have used the U.S. judicial system to fight for justice. It also tells the story of how corporate interests are, bit by bit, taking our right to trial by jury away. (video after the break)