Tallman v. City of Hurricane

ZIMMERMAN, Justice,

concurring:

¶28 I concur in the majority opinion because it seems compelled by the Restatement provisions relied upon. When viewed in a larger light, however, there is a certain absurdity to today’s classic end-run of the workers compensation statute’s ban on employees suing employers for injuries on the job. The death of the employee here was apparently caused because his employer, Progressive, did not fulfill its tort obligation to its employee to provide a safe workplace, and Progressive did not fulfill its contractual obligation to Haukos to provide shoring in the trenches that Haukos dug. Yet the defendant sent back for trial on the question of its negligence is Haukos, the party expressly relieved by contract from providing shoring, and the party I assume was induced to bid less for the job because of this contractual provision. After today’s decision, one can assume that Haukos and other similarly situated subcontractors will never again be lured into a contract in which the general contractor agrees to see that safety measures are taken. For Haukos, however, that lesson has been learned late.¹

1 . I assume that the question still remains as to whether Progressive may have to indemnify Hau-kos for failing to provide the shoring, thus completing the circle of avoidance of the workers compensation statute’s limitation on employee tort actions against employers.