Sunday, June 17, 2018

We'll Head em off at the Pass!

Every kid grows up wanting at some moment to be a superhero, policeman, fireman, or astronaut. These were the standby responses when I was a kid. A few would wander off the reservation with doctor, nurse, teacher or athlete. That is all likely due to perspective and exposure. We perhaps better understand or desire what we can see? 

As an aside, several years ago, there was an entertaining parody in which kids expressed their various desires to "claw my way up to middle management," or "be a yes man," or "have a brown nose," or "be replaced on a whim." The numerous video is worth watching even if you decide to quit reading the rest of the post. 

The "what I wanna be" thought came to me when I read a recent California decision regarding exclusive remedy. Exclusive remedy is one of the quid pro quo of workers' compensation in America. The idea of workers' compensation is that an injured worker will receive a more rapid and more certain treatment, income replacement, and hopefully recovery through this alternative to tort litigation and damages. Like it or not, elect it or not, when you go to work in most states you agree to accept workers' compensation as a substitute for tort damages. 

A potential result is that many maladies, injuries and conditions are covered and treated in workers' compensation, without the risks and challenges of the tort system. A recent Florida jury verdict illustrates that. A man in St. Lucie County was apparently drinking and listening to music in his garage. When police were summoned for the noise, they say that this man had a gun in his hand when he suggested they leave him alone. There is dispute about that gun-in-hand accusation. But, there seems no disagreement that he had been drinking and was perhaps even impaired. 

He allegedly shut the door in the police officer's faces to return to his music. An officer shot three or four times through the door. The man was later found dead inside with an unloaded pistol in his pocket. A jury in the tort claim awarded his survivors $4.00, but attributed 99% of the fault to the dead man (called "comparative negligence," this fault of the dead man reduces his damages). ultimately, the family will receive four cents. The tort system can be unpredictable. The news will conjecture and opine on why the jury reached that decision, but the fact is that is the decision. No appellate court can figure out how or why a jury does what it does, but comp judges have to "show their work" in decisions and appellate courts can calculate and recalculate benefits under statutory provisions.  

Certainly, tort damages may be more lucrative than workers' compensation. Most workers' compensation does not really compensate for family impacts (loss of consortium), or non-tangible (pain and suffering), or even behavior correcting (punitive) damages. But, tort damages are also harder to predict (see above), and getting a case to trial in civil courts can take years. And, if you are suing the state, you may find that damages are limited by something called "sovereign immunity." It protects many states. In Florida, there has been recent news about our process requiring legislative approval for damage claim payments beyond the amount of $200,000. Yes, someone suing Florida may see their damages capped at $200,000. Workers' compensation benefits may have category limitations, but there is no such overarching cap. 

Workers' compensation benefits are admittedly not usually as significant as tort damages, but they are usually delivered much more rapidly, most of the time without any litigation whatever. A Florida state database reflects that between January 1, 2017 through December 31, 2017 there were 54,143 "lost time" accidents in Florida. During the same period only 30,448 new cases entered litigation in Florida workers' compensation. That means, ignoring all the "medical only" and "first aid" injuries that occurred, at most only about 56% of claims entered litigation. 

That comparison is an illustration. It is a flawed illustration because many claims that are "new" to the litigation process are not related to dates of accident in the year they occur (date of accident year), but are filed later. But, conceding that flaw, and acknowledging that many injuries are not "lost time," a large amount of injured workers appear to receive benefits without even resorting to litigation. Certainly, that might also occur in the tort system (claim or allegation that is settled in a lump-sum without trial). But workers' compensation appears to deliver on the "more certain" and "more rapid" promises. And, workers' compensation is not eliminated or reduced if the worker is him or herself negligent (comparative negligence). 

Which returns me to what you wanted to be when you grow up, and the California case of Gund v. County of Trinity. A deputy received a dispatch that resulted from a 911 call. The caller whispered she needed help, and the 911 operator could not reestablish contact when the call was interrupted. So the deputy did what any law enforcement officer would, he placed a call to the caller's neighbors and asked them to look in on the caller (sarcasm). 

Some police agency employees might instead have driven to the house and checked on the citizen him or herself. This officer told the Gunds that he was "hours away," however. Googlemaps says that Kettenpom airstrip, where the call originated, is about 2.5 hours from the county seat in Weaverville, 97 miles distant in rural California. 

Well, the neighbors drove over to the neighbor's home and were "brutally attacked" by a "man who apparently had just" murdered the nice lady that called 911. Some news stories suggest that the nice lady or her significant other might have been involved in some drug-related transaction at the time. Each of the Gunds suffered wounds in the assault. They later filed a negligence lawsuit against the county and the sheriff corporal that called and enlisted their assistance. The trial court dismissed their claim for damages, on the grounds that their "exclusive remedy" would be workers' compensation. The appellate court affirmed that conclusion. 

And, that raises a discussion of an old English phrase "posse comitatus." This is a Common Law concept that allowed a sheriff to call upon citizens for assistance in time of need. (Our national jurisprudence is based upon and greatly influenced by English Common Law). If there was need, a citizen was expected to "raise a hue and cry," and from that came the duty by which any "male over the age of fifteen" could be called upon to aid the sheriff. This evolved, in America, to the abbreviated term "posse." And, if you never saw a movie in which they either raised a posse or "headed them off at the pass," you frankly missed out and I am sorry. 

There are hundreds of posse movies. The advertisement for The Last Posse adds the catch phrase "when six guns spoke the law - a sheriff had no friends." A sheriff might be a lone authority figure, surrounded by miles of territory. We got that as kids, watching the old westerns. But, if you had told me that it was a modern phenomenon, I would have demurred. Many of us flatlanders might be similarly surprised that a 97 mile drive would take 2 hours, but then mountains and their roads are not like that to which many of us are accustomed.



The California appellate court affirmed the trial court conclusion that the Gunds are eligible only for workers' compensation. It explained that there is specific language in the California Code that says volunteers are generally not employees or entitled to workers' compensation. But, there is a specific exception to that rule that covers "civilians assisting peace officers in active law enforcement." The Court concluded the Gunds were "clearly assisting a peace officer," and then analyzed whether that was "in active law enforcement service."

In the end, the Court concluded that their actions were in fact so. The Court resorted to the intent of the statute, which it says is to provide coverage to "a person who assumes the functions and risks of a peace officer." The Court distinguished a contrary conclusion reached in a workers' compensation proceeding in which a person was injured while training for a volunteer "mounted posse program," stating that program (performing police functions like crowd control and crime scene protection) was not "active law enforcement services," because the injured person was training at the time of that accident. Some may find that distinction dubious.

Thus, in California at least, one waives his or her rights to tort damages in some instances in which "assisting" a law enforcement official as requested. But, this is apparently dependent upon the tasks being performed when damaged. If actually "assisting in active law enforcement" or firefighting, then a member of the "posse" is benefited (entitled to workers' compensation) and burdened (not entitled to tort remedies).

That burden/benefit analysis is critical. Those who decry workers' compensation as "not enough," and long for a tort remedy should remember that workers' compensation pays even when no one is negligent. If an officer asks my help, no officer or agency involved is negligent, and I am hurt, the California statute makes sure my medical bills and lost wages are paid through workers' compensation. But, without that coverage, if I so engage and am hurt in the absence of any negligence, then is it right that I get nothing? And, even if there is officer or official negligence, would I rather have workers' compensation for life (think catastrophically, if I were paralyzed from being hit by a car), or a limited tort recovery capped by sovereign immunity, or reduced by a jury for my own negligence?

Over the years, I have had a great many express their incredulity at the concept that accepting a job waives tort rights. The "social contract" imposed statutorily as workers' compensation is something that people struggle with. I have met with many prospective clients who knew nothing of its constraints until longer after they became employed, learning of it only when injured.

But, I suspect that people might be more surprised to learn that they similarly alter their rights by answering the "hue and cry," and coming to the aid of someone at the direction of, or instead of, the police. I certainly see the Gund's point, and their desire to pursue civil damages; they feel lied to, used, and mistreated. They were volunteers, and likely never even thought of workers' compensation. But, I can also see beneficence in the state providing compensation for people in such settings, who might suffer injury and impairment while performing such assistance even through, in part, their own contributory negligence.

Workers' compensation is a benefit. It affords both employees and employers with both benefits and burdens. It is not perfect and its flaws have been illustrated both in this blog and elsewhere. But, it provides a benefit that is more certain, more rapid, and regardless of employer negligence. Its benefits and failures cannot be individually analyzed only within a particular case like the Gund's, but must be considered in the broad perspective of all employers and employees.

And, through this odd posse provision in California, maybe we will all still someday grow up to be the policeman of our childhood prognostications? If I ever do, I hope I also get the chance to head 'em off at the pass. 






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