In a recent case, a plaintiff sued his Georgia employer claiming that it was liable for a brain injury suffered by him when a coworker’s potato cannon exploded. The plaintiff was working on a railroad track installation and maintenance crew, which worked out of Kansas, not Georgia. In 2010, his crew finished its work for the day and came back to the yard. When the group returned, some employees went to a machine shop to visit the foreman and other mechanics. They drank beer.
That evening, the facility’s branch manager stopped by and spoke to them. He didn’t ask anyone to stop drinking or tell those not on the clock to leave. Before leaving, however, he called another shop foreman and asked him to ensure the off-duty workers left. The shop foreman did not.
An hour later, the crew got a potato cannon built a few days before using the employer’s materials. They put the cannon on top of a trailer and looked for materials to fire. The cannon was packed with gun powder and metal. The plaintiff’s coworker lit the fuse with a sparkler. He and the rest of the group, except for the plaintiff, hid inside the shop. The plaintiff climbed on a fire escape and recorded what was happening with a video recorder. The cannon exploded instead of firing projectiles, and shrapnel hit the plaintiff in the head.
The plaintiff sued, claiming the employer was liable under respondeat superior, negligent supervision, and section 317 of the Restatement (Second) of Torts. The employer filed a motion for summary judgment. The trial court granted summary judgment in favor of the employer, using Kansas law.
The plaintiff appealed, arguing that there were issues of fact still remaining. An employer could be held responsible for the negligent actions of its employees if they are acting within the course and scope of the employer’s authority. The test was not whether specific conduct was expressly forbidden by an employer, but rather that the conduct should have been foreseen based on the kind of employment and duties.
The trial court, in granting the motion, had acknowledged that two supervisors knew about the potato cannon and that another supervisor had asked one of the supervisors to have workers leave the yard. The trial court had found there was no duty to prevent the employee from being harmed. However, the appellate court looked to Kansas law, which was that an employer has a duty not to expose a worker to a peril that the employer can guard against by using reasonable care. Here, there were issues of fact about whether it was a breach of duty not to order off-the-clock employees to stop drinking and stop trying to detonate an explosive device.
Similarly, under the Restatement (Second) of Torts § 317 a “master” (employer) has a duty to exercise reasonable care to control a servant (worker) while acting outside the scope of employment to prevent him from intentionally hurting “others” or creating risk. This rule applies only if the worker is privileged to be on the premises as a worker and is using the employer’s chattel, and the employer has reason to know he can control the worker and knows it is necessary to exercise that control.
In this case, the trial court had found that the Restatement didn’t apply to a case like this arising out of coworker injury, where the plaintiff was both a servant and the “other” that needed protection from the servant. The appellate court found this interpretation strained.
The appellate court ruled that nothing in section § 317 prevented a plaintiff from pursuing relief when he had contributed to his own harm. There was no Kansas law specifically discussing a duty of an employer to protect one coworker from another, but other jurisdictions had found this duty. The court reversed.
If you are hurt due to somebody else’s negligence, you may be able to recover compensation for some of your losses, even if you are partially at fault. Experienced Atlanta personal injury attorney Terrence R. Bethune can evaluate your case and fight for any compensation you may deserve. Contact us at 404-875-7800 or via our online form.
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