There have always been severe weather events (remember Noah?). Those who live in places blessed with a minimum of such challenges may rejoice, but for many, there are persistent fears of hurricanes, volcanos, tsunamis, tornados, wildfires, earthquakes, floods, and more. It is a dangerous world in which we live. According to CRED (Centre for Research on Epidemiology of Disasters), the averages between 1994 and 2013 included 218 million people in the world "affected by natural disasters" annually and about 68,000 lost lives. Those numbers assist us with the breadth of the threat, but they do not necessarily prepare us for when the postman rings.
Some such disasters are preceded by warnings. Hurricanes nowadays are usually fairly well predicted in both strength and path. Often the warnings are disregarded by the brave (or not so smart), but they are there nonetheless. On the other end of the scale are the earthquakes, which are utterly unpredictable. And other examples offer some degree of potential forewarning somewhere in between. Tornados offer perhaps some potential for warning, but if it comes it is likely to be in terms of minutes, rather than the days we get for hurricanes. In one recent example, a meteorologist interrupted his television broadcast in Washington to phone his children with such a warning, according to USA Today.
In the working world, such natural events are a part of our daily risks. Such events may come while we are at work, may interfere with our ability to work, may cause damage that thereafter impairs our ability to reach work. In December 2021, tornados came to call in Kentucky, and their impact was severe, unexpected, and in some instances tragic. Anytime there is loss of life, we struggle with the challenges of comprehension and acceptance. When the impact occurs during work hours, then workers' compensation often becomes an added consideration. Some allege that in the December storms there were hours of warning, but it is less than clear whether that refers to warnings of potential severe weather or warnings of the specific of a tornado in a specific location.
Employees at a candle factory made the national news as a tornado impacted that facility in December. The Courier-Journal reported that 110 people were inside when the factory was struck on December 10, 2021 and "turned the building into a pile of twisted rubble." Nine people perished in the disaster. Questions soon turned to why the factory had remained operational in the face of the severe weather warnings. Some employees asserted that they wanted to leave but were told they would be fired if they did so, an allegation that the employer denied. Though the article linked above focused on those who died, it is probable that still others were injured. Thus the discussion of workers' compensation in its broadest context of either injury or death.
Within a few days, there were discussions of lawsuits against the employer, focused on the decisions to remain open and operational. The Courier-Journal reported in late December that "it will be virtually impossible for workers injured" in that event "to win their lawsuit against the company." Legal experts were quoted regarding "a 17-year-old Kentucky Supreme Court ruling," which they believe limits such lawsuits to instances in which the employer "intended for workers to be injured or killed."
Despite that reference to the Kentucky Supreme Court, the article goes on to explain that workers' compensation is "the exclusive remedy for workplace injuries unless management inflicts them intentionally." Thus, it is the law that provides protection from lawsuits to the employer. While the court interprets that law, it is not the court that somehow protects or fails to protect people, businesses, or others. The article's focus on the court is unfortunate in this regard and risks misinforming the public. When the press is not clear about the law, the public can suffer. See Mischaracterizing Pot Again (February 2020).
The law in Kentucky is not dissimilar to the law in many states. There is a high probability that someone injured or hurt on the job will be limited to workers' compensation as a remedy. The employer, in the vast majority of instances, is protected from civil lawsuits by the legal protections of such statutes, referred to as "exclusive liability," or "exclusive remedy." The workers' compensation statutes limit the redress available, usually defining and delimiting what damages can be recovered as well as the proof and evidence that will be required for such recovery within workers' compensation. It is appropriate to use "remedy" rather than "damages" as the recovery is almost certainly limited to some defined recovery short of the broader concept of "damages."
Thus, when a company is arguably or patently negligent, it is usually protected from a variety of legal claims and descriptions of damages (usually noted are "pain and suffering" as well as "punitive" damages, but there are more one might discuss). However, the employer yields a great deal in return for that protection. The employer is also as liable for workers' compensation in the vast majority of workplace accidents/injuries in which it was arguably or patently not negligent, not at fault, not to blame. The employer pays for many claims in which it had no fault in exchange for only paying benefits in those other claims in which it is at fault.
There is thus recovery from the employer in many instances in which it did no wrong balanced with the same constrained recovery even if it did. The article linked above is also dismissive of, critical of, workers' compensation. It refers to the potential recovery as "the meager benefits afforded by workers’ compensation." The suggestion is that the injured worker or her/his estate should be more robustly compensated, in this instance because of the allegation (not proof as yet) that the employer "'put profits over lives' and refused to let employees leave Dec. 10, the night of the tornado." Though this allegation was made, "a spokesman has (also) denied," and thus it remains unknown whether that allegation could (or will) be proven.
Thus, it is likely that the recovery for those injured and killed in this tragedy will be the social safety net that is workers' compensation. A solid and enduring safety net that is generally there for support and care despite the circumstances of most accidents (fault, no-fault, contributory fault, comparative fault, etc.). However, one Kentucky law firm is said to be attempting an end-run around the workers' compensation law.
Relying upon a state statute that allows "Kentuckians to bring lawsuits for violations of any state law," this lawyer is suing to try to enforce the "Kentucky Occupational Safety and Health law, which requires employers to provide a safe workplace." By not evacuating employees, or more succinctly perhaps by not allowing employees to leave (if that is proven), the attorney alleges the workplace was rendered unsafe. There are those who do not expect this approach to be successful, but until a court rules that remains to be seen. The lawyer representing the plaintiffs in the suit provided a statement proclaiming "These survivors have facts and law firmly in their favor, and that’s why this lawsuit was properly filed to fight for their rights.”
Thus, it remains to be seen whether the lawsuit will proceed or be dismissed. There is the potential that plaintiffs may enjoy "potentially enormous" benefits if successful. However, there is also the potential that in pursuing the employer in court for civil damages the plaintiffs will effectively "waive any payments from workers’ compensation." The potential exists, it seems, for such a lawsuit to present both potential benefit and harm to the plaintiff. And, according to some quoted in the article, the case would likely have to reach the Kentucky Supreme Court at some point.
They describe how a 2004 decision applied the Kentucky statute and "upheld the dismissal of a $2.7 million verdict for the family of a construction worker who died in a trench cave-in." They note that in that decision one Justice dissented and argued that the court should create a different standard, like that applied in North Carolina. There employer immunity is waived when employers "intentionally engage in misconduct, knowing it is 'substantially certain to cause serious injury or death to employees.'” Thus, there is some potential seen for the Kentucky Court to ignore its state's statutes and create some new and more relaxed standards.
NBC News published a similar story, which is more of an editorial though not labeled as such. It is worth a read; the fading of the line between news and editorial in America is a subject for another day.
While one's first inclination might be to reject the possibility of a court creating law, the fact is that the field of workers' compensation law is littered with instances in which various courts wandered from the pages of their state's statutes and created presumptions, inferences, and more "out of whole cloth." In the pandemic, we even saw governors create laws through emergency actions. See Interesting Word Choice (July 2020). Such excursions and expeditions beyond the state's laws, while not uncommon, have also periodically impacted the predictability of state law, the underwriting of risk, and the efficient operation of the concept of workers' compensation. Predictability is an important characteristic in many events; before filing a civil suit a plaintiff might want predictability regarding the potential for waiver discussed above. Parties to litigation need predictability.
The lawsuit against this particular employer will be interesting to observe. The tragedy to many lives and families will be undeniable in any event. The impact of the storms on the community is evident in the human suffering and in the announcement that this employer will not reopen the destroyed factory, according to WYMT. Many jobs are thus lost and the community changed. Thus, the impact of the storms is clear, the tragedy defined, and as Don Henley noted in The End of the Innocence (A&M, 1989), in the end, the "lawyers clean up all details."
