Larson’s Spotlight on Recent Cases: No Benefits for Salmonella Poisoning From Catered Lunch

Larson's Spotlight on Course and Scope, Exclusive Remedy, and Causal Connection. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

OH: No Benefits for Salmonella Poisoning From Catered Lunch on Employer's Premises

An Ohio appellate court recently affirmed the denial of benefits to an employee who claimed she contracted salmonella poisoning from an allegedly contaminated lunch served in her employer's break room.  The employer had instituted a lunch program in which it periodically invited local caterers to sell their food to employees in the break room.  The menus were then forwarded to the employer, which advertised them via flyers and an employee newsletter. The caterers, without guidance or assistance from the employer or its employees, purchased, stored, and prepared the food at their place of business and transported the food to the employer. Once there, the caterer, without guidance or assistance, prepared the break room for food service, served the food to patrons, and collected payment from each patron. The court agreed with the trial court that the food poisoning occurred as a result of the caterer's activities; the employer exerted no control over the break room or the food preparation.  While the employer gained some small benefit from having its employees have the option of dining on the premises, there was an insufficient causal connection to bring the activity within the course and scope of employment.

See Serraino v. Fauster-Cameron, Inc., 2013 Ohio 329, 2013 Ohio App. LEXIS 296 (Feb. 4, 2013).

See generally Larson's Workers' Compensation Law, § 21.02.

NY: Pizza Shop Employee May Not Maintain Tort Action Against Co-Employee Owner of Business

An appellate court in New York recently affirmed a trial court's summary judgment order favoring the president and sole shareholder of a pizzeria business, who also individually owned the business premises, in a civil action seeking damages for injuries an employee of the pizzeria allegedly sustained when he slipped and fell while working as a "prep man."   The court reasoned that as president and sole owner of plaintiff's corporate employer, defendant was "under a duty to plaintiff, as plaintiff's co-employee, to provide plaintiff a safe place to work."  Any duty that defendant was under to plaintiff by reason of his ownership of the premises upon which plaintiff was allegedly injured was indistinguishable from the duty he owed plaintiff as his co-employee.  The exclusivity defense could be raised by the individual defendant as well as by the corporate employer.

See Ciapa v. Misso, 2013 N.Y. App. Div. LEXIS 661 (4^th Dep't, Feb. 1, 2013).

See generally Larson's Workers' Compensation Law, § 111.03.

MT: SWAT Member May Not Sue Department of Corrections for Injuries Sustained During Electric Taser Training

The Supreme Court of Montana recently affirmed a decision by a state trial court granting the Department of Corrections summary judgment in a civil action filed against it by a SWAT member who sustained injuries when he was shocked with an electric taser during a training exercise.  Noting that in Montana, to avoid the exclusivity defense, an employee must show that the employer engaged in a deliberate act to injure the employee, that in the instant case employee underwent the "tasing" at his own free will, giving full written consent to the exposure while acknowledging its potential risks, and that the employee failed to identify any evidence that the employer or its employees had actual knowledge that the employee's exposure to the taser was certain to injure him (the second requirement of Mont. Code Ann. ß 39-71-413(3)), the employee's civil action could not proceed.  His sole remedy was within the workers' compensation arena.

See Harris v. State Dep't of Corrections, 2013 MT 16, 2013 Mont. LEXIS 16 (Jan. 29, 2013).

See generally Larson's Workers' Compensation Law, § 103.03.

KY: Access to Security Codes in Store Safe Provides Causal Connection Between After Hours Murder of Convenience Store Worker and His Employment

The Court of Appeals of Kentucky recently affirmed an award of death benefits to the estate of a deceased convenience store worker whose body was found after business hours in the store's bathroom. The worker had been stabbed sixty-eight times. The ALJ found that the Estate had provided prima facie evidence that the worker was murdered in the course and scope of his employment. Accordingly, the ALJ applied the presumption set forth in KRS 342.680, which creates a rebuttable presumption of causation in instances where a worker is incapable of explaining how a workplace injury occurred.  The appellate court agreed, indicating the evidence supported a finding that because of the worker's employment and access to the security system at the convenience store, the murderers lured him into their car under the pretext of purchasing drugs, forced him to disable the alarm and open the store doors and safe, and then murdered him on his work premises. This evidence was sufficient to establish a causal connection between the worker's employment and his death.  For additional discussion, see http://www.workcompwriter.com/kentucky-convenience-store-workers-access-to-premises-and-security-codes-provides-causal-link-between-his-murder-and-the-employment/.

See JJ's Smoke Shop, Inc. v. Walker, 2013 Ky. App. LEXIS 22 (Feb. 1, 2013).

See generally Larson's Workers' Compensation Law, § 8.01.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law.

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