Ruling on fetus injury shows how far liability can go in workplace
Court says child can sue for exposure while in womb
A recent court case from California provides a vivid reminder of just how far an employer’s liability can extend for unsafe conditions in the workplace. Not only are employees and customers of concern, but so is a fetus carried by any of the workers.
The California Supreme Court ruled in October that children can sue their mothers’ employer for injuries caused by exposure to unsafe work conditions during pregnancy.1 The unanimous decision reversed a previous ruling that said only the mother could receive compensation for workplace injuries under workers’ compensation laws a rule that had been in place for 10 years.
Employers always have been liable for injuries to workers and customers or other nonemployees visiting the work site, but the worker’s fetus has posed special problems for the court system. Many states, such as California, have taken the position that the fetus has no justifiable way to receive compensation because it is inseparable from the mother. Since the mother is covered by workers’ compensation laws, that means damages can be recovered only for injuries to the mother herself and only through the workers’ compensation system. In California and many other states, the employee cannot sue the employer in civil court for the injury, a fact unchanged by the new ruling.
Court considered fetus a separate individual
California law now says that the fetus is, in effect, separate from the mother. That means the child can sue for damages just as if he or she were a customer visiting the workplace, explains Paige Leslie Wickland, JD, a partner with Fancher and Wickland in San Francisco. Wickland successfully appealed the case before the California Supreme Court, after the trial court rejected the child’s claim.
"This ruling changed the law in California, but it is in accord with every other state that has published appellate decisions on this issue," she explains. "This ruling says employers can’t discriminate against women by ducking a negligence lawsuit if they have, in fact, been negligent in injuring the fetus."
The lawsuit now returns to the trial court for litigation. The case involved an employee of Michaels Stores, a national chain of arts and crafts suppliers. Naomi Snyder was several months pregnant when she coordinated craft classes at the Modesto, CA, store. After the company hired a janitorial company in 1993 to buff the floors at night with a propane-powered buffing machine, a faulty machine and poor ventilation apparently caused accumulation of carbon monoxide in the store one night. Snyder and 20 other customers and employees were treated the next day for nausea, headaches, and breathing difficulties.
Snyder later alleged that her daughter, now three years old, suffered permanent brain damage, cerebral palsy, and other disabilities as a result of the carbon monoxide exposure. The employer denied responsibility, and a trial court dismissed the lawsuit on the basis of a 1989 ruling that fetal injury cases were not allowed against the mother’s employer. The decision was appealed, and the California Supreme Court decided the earlier ruling was incorrect and the child could sue the mother’s employer.
The decision opens a can of worms for employers, warns Robert Naeve, JD, an attorney in Irvine, CA, who represented the employer. Now that the court has said employers can be targeted by the children of employees, the number of potential claims seems limitless. Especially since such cases often are not filed until years after the exposure when symptoms are apparent in the growing children, employers could conceivably face a rash of such lawsuits, he says.
But on the other hand, one California observer says he does not expect any tremendous fallout from the case. Jeffrey Berman, JD, is a labor lawyer and a partner with Poskauer, Rose, LLP in Los Angeles. He represents the Employers Group, a group of 5,000 California employers who had urged the Supreme Court to rule in favor of the employer in this case.
Berman notes the impact of the California ruling is limited to states with similar workers’ compensation laws. In California, employers and employees have struck a bargain that prevents workers from suing for damages beyond the workers’ compensation system, while employers have in turn given up the right to deny workers’ compensation to employees who were negligent or otherwise responsible for their own injuries. For states that already allow workers to sue the employer outside of the workers’ compensation system, the California ruling probably will not change anything, Berman says.
With states that have a setup similar to California’s, the ruling might be more influential. But even then, the state would not have to follow the lead of the California Supreme Court. In any case, Berman downplays the significance of the ruling by noting that fetal injury cases are just not very common.
"The number of fetal injury cases you have on the job now is smaller by far than the number you would have seen in decades past," he says. "Now we have significant amounts of employee protection legislation that allows people unable to work to take time off with a guarantee that they will get their jobs back."
Not the same as toxic workplace lawsuits
Wickland also points out that the Snyder case is different from cases that involve toxic workplaces, in which workers are exposed to hazards harmful to a fetus no matter what precautions are taken. In past years, battery manufacturers have faced the dilemma of what to do with pregnant workers who cannot be protected from teratogenic exposure.
Some employers tried to restrict women from those jobs unless they could prove they were sterile, but that was found to be unlawful discrimination. So in that situation, Wickland says it is most likely a court would not find an employer liable for fetal injuries if it were clear the woman understood the danger and insisted on working in that position while pregnant.
"But in this case, you had a more garden variety negligence," she explains. "This was an entirely preventable injury, so the issue is essentially the same as if a customer were injured by some unnecessary exposure in the workplace. The mother can be injured, and she has a system that compensates her for her own injury. But the baby she’s carrying now can be compensated separately from the mother."
The bottom line for employers and occupational health professionals is that the California Supreme Court ruling may extend the limits of liability for unsafe workplaces.
In addition to the way in which employers always have been responsible for injuries at work, now they might be responsible for such devastating injuries as cerebral palsy and lifelong brain damage. And in comparison to other types of civil lawsuits, any claim involving a permanently disabled child is likely to generate great sympathy from a jury and result in a substantial award of damages.
For that reason, Berman says employers and occupational health professionals would be well advised to watch for dangerous scenarios involving pregnant women or even those who might be pregnant.
"You need to be aware of an employee who may be working too far into the pregnancy or working in a job that exposes her and the fetus to hazards," he suggests.
"Those people should be urged to get a medical evaluation and have a physician decide the best way to proceed. The employer has to be more proactive, more aggressive in preventing the injuries or at least educating the worker about situations in which injury to fetus could be unavoidable."
Reference
1. Snyder v. Michaels Stores, 16 Cal. Fourth 991.
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