Two employees of the same college are leaving work for the day. While using a crosswalk across a campus road one of the employees is struck by the second employee’s car, sustaining injuries. Can the injured employee sue his colleague for damages or is his civil action barred by New York’s exclusivity provision (Workers’ Compensation Law Section 11)?
Once an employer secures coverage (or self-insures) to provide workers compensation benefits for its employees, the employee cannot sue the employer for damages sustained from an injury or death that result from the employment (exceptions apply). The Workers’ Compensation Board becomes the exclusive remedy for the injured worker. This is known as the exclusive remedy doctrine or sometimes just the “Workers’ Comp Bar” (meaning, the Workers’ Compensation Law acts as a “bar” prohibiting direct civil lawsuit against the business owners).
The exclusivity also extends to coworkers acting within the scope of the employment at the time of the accident. This co-worker immunity ends when the tortfeasor is outside the scope of the employment. For example, where plaintiff and defendant were co-employees of the same college, the defendant was found to be outside the scope of his employment, and therefore subject to an action at law, when he struck the plaintiff in a crosswalk on campus. The court reasoned that because the plaintiff and defendant had left work for the day, and the accident occurred on a roadway owned by the campus that was open to the public, the hazard was a common risk shared by the general public and therefore the defendant’s action was not subject to the exclusivity provision of the workers’ compensation law.
The facts in this example are drawn from the recent appellate decision in Siegel v. Garibaldi, 158 A.D.3d 1049 (3rd Dep’t 2018).
