Perhaps the most common liability claim associated with a lifting injury is that the nonsubscriber employer simply did not provide adequate assistance, specifically staff, to assist the injured worker with lifting whatever it was he or she was required to lift.  The law governing such claims, however, is more narrowly defined than many plaintiffs’ lawyers believe.  Drake v. Wilson N. Jones Medical Center, a relatively recent opinion from the Dallas Court of Appeals, summarizes the settled law in this area:

“An employer has a non-delegable duty to provide a safe place to work and adequate help in a work assignment.  See Heritage Manor, Inc. v. Tidball, 724 S.W.2d 952, 955 (Tex. App. – San Antonio 1987, no writ).  However, “[t]he employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance.”  W. Union Tel. Co. v. Coker, 146 Tex. 190, 193, 204 S.W.2d 977, 979 (1947).  See Great Atl. & Pac. Tea Co. v. Evans, 142 Tex. 1, 4-5, 175 S.W.2d 249, 251 (1943) (employer not negligent where not reasonably foreseeable employee doing work without assistance would suffer injury); Fields v. Burlison Packing Co., 405 S.W.2d 105, 107-08 (Tex. Civ. App.—Fort Worth 1996, writ ref’d n.r.e.) (worker made no effort to determine whether employer or fellow employees could or would help her and employer should be given opportunity to respond to employee’s request for assistance).  “The law does not require an employer to assign to each employee an assistant when the duties or work assignments of such employee may only occasionally require assistance and such assistance when needed is available.”  Id. at 108.  An employer is not liable when sufficient help is nearby and available and the employee does the work alone without seeking or asking for assistance.”  Id. at 111.  See also Shumake v. Great Atl. & Pac. Tea Co., 255 S.W.2d 949, 951-52 (Tex. Civ. App. – Dallas 1953, writ ref’d n.r.e.).”

Essentially, in most instances, an employer can negate liability by showing assistance was available but not sought.

Practically speaking, this is a potential avenue to summary judgment.  Often, obtaining an admission from the plaintiff that assistance was available and unrequested is not difficult. Either because the plaintiff has not been sufficiently prepared or perhaps because his counsel is unaware of how damaging such admissions are to the client’s claims, many plaintiffs can be led to directly admit these facts.  Even if a plaintiff claims to have asked one or more fellow employees for help without success, it may be possible to get him to either admit he could easily have gone further, called a manager, used the store’s intercom system, or otherwise made a meaningful effort to obtain assistance.

Of course, plaintiffs often instinctively deny all responsibility for their own injury and may attempt to justify their failure to seek assistance with such excuses as “I was in a hurry,” or “I was the only one in my department,” or “my co-worker was busy.”  Courts, however, are reluctant to accept such excuses at face value or to rely upon them to find the defendant liable. This was true in Drake. Fields v. Burlison is another excellent case addressing similar excuses and finding no evidence that the employer was liable.

In short, the law requires that assistance be “available.”  It does not require that the assistance be adjacent to or even in the same department as the plaintiff.  The plaintiff is obliged to make some effort to obtain assistance that is not in his or her immediate vicinity.  In an age where most large retail stores have intercom systems and employees occasionally have access to wireless radios, it is unlikely that a plaintiff truly exhausted reasonable methods of seeking assistance.

Part III of this series will address back belt claims.

Practice tips: Always inquire about who was in the area even in other departments. This can be done in the context of asking about potential witnesses to the accident. Then follow up with questions about whether the injured employee sought assistance from the persons identified by the claimant. In the event such a claim is lititaged, be sure to pull time records for the day of the accident. Typically, it will be easy to use such records to establish that there were a number of other employees who could have assisted the claimant.