Tuesday, February 14, 2017

Co-employee duty found from removing a ladder that was not fully extended.

Bierman v Kimmie Violette
ED 100946
Feb. 14, 2017

The court of appeals reverses a dismissal of a claim against a co-employee and found the allegations support an independent duty of care distinct from the employer's duty to create a safe workplace.

The claim alleges the employee used a ladder to enter a loft space, and when the co-employee returned the  12 foot ladder it was not fully extended resulting in the injury.  Claimant filed a claim within the post-reform gap regarding co-employee immunity. 

The issue if a duty was owed to a co-employee is a question of law.  The duty to lock and secure the ladder was the "root of the harm" independent of the duty to provide a safe work place, assuming the facts alleged were true.  The consideration of OSHA standards was irrelevant to the determination regarding the adequacy of the pleadings to withstand a motion to dismiss.

The case involved a 2009 accident at Espino's Bar resulting in alleged injuries to the finger, elbow and shoulder.