Other Articles Written by Rolando Pasquali
This article, and the others listed above, are originals written by Rolando Pasquali. Many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area
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On The Job Injuries
by Rolando Pasquali
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Like Rip Van Winkle, I rubbed my eyes, picked up my old civil procedure books, and marched back down the mountain. “My World” had, a decade before, been civil litigation. I’d given up “paper pushing” to learn the trade of the courtroom. My classroom became the criminal trial courts, where the ability to put thoughts on paper is secondary to the skill, or aptitude, for thinking on one’s feet. A paper lawyer can ponder the written word, write and re-write, reconsider and consult, until the argument crystallizes. A trial lawyer rarely gets the luxury of time. In trial, the lawyer must react, instantly, instinctively, and appropriately. Sometimes, the “right” reaction is to remain stoic, at others, the answer is indignation. The trial lawyer must quickly choose, and choose correctly, lest he watch an opportunity, and often a potential advantage, evaporate. In order to learn these skills, I traded my civil law books for a prosecutor’s badge. Now, like the long bearded legend, I blinked out at the bright light of the civil arena again, expecting past things remembered to be, for the most part, unchanged.
Like any other field, science, medicine, even our understanding of religion, law “evolves,” but unlike some other disciplines, our laws generally evolve by addition and explanation, not by upheaval. Judges call this by its Latin name: Stare Decisis, namely, that principles of law build upon each other, like blocks. Each decision of the high courts binding all lower courts in future cases. This gives a certain amount of predictability to legal proceedings. Certainly, as the needs of society change, so must the law. The principle of Stare Decisis, then, holds firm unless public policy changes or clear injustices are manifested. After ten years in the courtroom, I returned this past Spring to the Civil Arena. Like Van Winkle I sought out established legal principles, like so many old friends. Most were there. Some, like the Doctrine of Peculiar Risk, had become so limited and distorted that they might as well be gone.
Protection for Construction Workers
An often mis-understood principle of law, the Doctrine of Peculiar Risk had, since 1962, been an ardent protector of safety for construction workers. On a job-site, the Doctrine of Peculiar Risk said that if property owners, general contractors, or others knew of a peculiar danger of harm to workers, they each had to insure that workers were protected.
Some activities are so inherently dangerous that possible harm lurks at every turn. What follows are examples from actual cases in the history of California Law: (1)Sending people to work inside a 9 foot deep trench, which is neither shored up nor sloped. (2) Sending workers out on a busy street to eradicate white line markings without special precautions to prevent them from being hit by passing cars. (3) Removing tall palm trees. Famous for their deceptive weight, these behemoths simply can’t be felled without tremendous risk. If and when these giants begin falling in the wrong direction, don’t call my friend Rip Van Winkle, you’ll need the Jolly Green Giant, or a lot of luck, to avoid a disaster.
Safety Mandated by Legal Responsibility
The Doctrine of Peculiar Risk, like other principles of law, was developed to force those who own, operate, or undertake unusually dangerous activities to take extra precautions to prevent workers from being injured. The doctrine made safety a non-delegable duty. This meant that each person hiring another to do inherently dangerous work remained responsible for safety, unable to “delegate” responsibility to those whom he hired. The person hiring another company remained responsible to either require in their contract that safety precautions be taken, or, they had to actually take the precautions themselves.
One such case I personally worked with involved a roofing employee sent 2 stories above the ground on a scaffolding and without safety lines, belts, nets, or other precautions. The scaffolding plank broke. A twenty six year old husband and father fell and became paralyzed from the neck down. When they testified at their depositions, virtually everyone involved, property owner, general contractor and so forth tried to lay blame on the roofing sub-contractor. He was responsible for safety devises, they all chorused. Fortunately, this occurred in 1987, before my big sleep; and the Doctrine of Peculiar Risk still existed.
Safety, the doctrine commanded, is not a duty one can delegate if the activity involves a peculiar risk of harm to another human being. Under the Doctrine, then, everyone hiring the roofing company remained responsible for their own conduct rather than hiding behind the sub-contracted roofer’s Workmen’s Compensation policy as the employee’s “exclusive remedy.” The difference in worker remedies was dramatic. Under Workmen’s Compensation, he was entitled to medical bills, lost earnings, and a disability but nothing by way of pain and suffering. Under the Doctrine, he wasn’t forced to accept Workmen’s Compensation as his “Exclusive Remedy.” He could, and in fact ultimately was, awarded just as much as any bystander suffering the same fate.
The Doctrine’s logic was evident. By providing a financial penalty, it resulted in a clear impetus to those who can take safety measures to take them. No job-site foreman would have allowed foundation concrete to be poured until after drainage lines were installed. If the company had been equally concerned about safety, they would have prevented exposure to extreme danger until after safety precautions were in place. When safety is put on the same page with profitability, the risk of worker injuries declines precipitously. This had been California ’s logic, and its law, since five Supreme Court justices voted for it in 1962.
No more! wrote California ’s “new” Supreme Court in 1993. The doctrine of peculiar risk should no longer “extend to the employees of an independent contractor.” If the employer carries “Workmen’s Compensation,” that’s the end of it. The injured worker cannot sue the person hiring the employer, usually the property owner, no matter how blind an eye the owner turns to dangers, which his servant’s workmen are subjected to.
This sad state of legal affairs is what I returned to when I walked back into the civil arena. Old legal principles gone, I wished I really were Rip Van Winkle. I closed my eyes and imagined myself walking back up the Kaatskil Mountain, searching for one more principle. Compassion.
- by Rolando Pasquali
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