In Hassan v. Rock, a plaintiff appealed from a judgment awarding him $212,136.64 in damages because he didn’t think the trial court should have reduced the award by his proportionate responsibility for the accident. The defendant had hired the plaintiff as a day laborer to clear brush out of an empty lot that belonged to the defendant’s friend. The defendant used a Bobcat loader, and the plaintiff crouched under the bucket. The bucket fell and hurt the plaintiff.
The plaintiff sued the defendant for negligence and gross negligence. The plaintiff objected to submitting proportionate responsibility questions to the jury, claiming that proportionate responsibility didn’t apply because the defendant was his employer but didn’t have workers’ compensation insurance as required under Tex. Lab. Code § 406.033(a)(1).
Nonetheless, the trial court submitted the questions related to the plaintiff’s responsibility for getting injured to the jury. The jury found that the defendant was 57% responsible and the plaintiff was 43% responsible. The plaintiff moved to disregard the jury’s answers to the proportionate responsibility questions. The trial court denied the motion and rendered a judgment reducing the plaintiff’s damages award by 43%. The plaintiff appealed.
The plaintiff argued that the trial court abused its discretion by submitting these questions to the jury because the defense of proportionate responsibility was barred by the Workers’ Compensation Act. He also argued that the trial court should have disregarded jury findings about his negligence. Section 406.033 of the Workers’ Compensation Act provides that if an employer isn’t covered by workers’ compensation insurance and an employee has to bring a civil suit for damages to recover compensation, the employer can’t defend on the grounds of contributory negligence.
On appeal, the defendant argued that the plaintiff hadn’t established he was an employee as defined by the Workers’ Compensation Act, and even if he could his employment was incidental to a personal residence and therefore could be excluded. The court assumed, without deciding, the plaintiff didn’t need to plead that the law prevented the defendant from arguing a proportionate responsibility defense. Instead, it looked first at whether the plaintiff was an employee under the Workers’ Compensation Act.
It explained that the law defines an employee as a person in the service of someone else under a contract of hire. However, certain people are excluded from the definition of employee, including those whose employment isn’t in the course and scope of the employer’s business. In this case, the plaintiff wasn’t employed in the usual course and scope of the defendant’s business, and as such the plaintiff hadn’t established he was an employee for whom workers’ compensation insurance needed to be procured.
The court concluded that, since the defendant was a retired eye doctor and didn’t operate a brush-clearing business, the plaintiff wasn’t employed in the usual course and scope of the defendant’s business. The defendant testified he was a retired eye doctor, and the court didn’t see evidence suggesting the defendant ran a brush-clearing business. The defendant hired the plaintiff to help him with a favor to a friend. The court concluded that the defendant was entitled to assert a proportionate responsibility defense.
Work injuries can have devastating consequences. If you or your loved one suffers a serious injury while working at a construction site or other location, the experienced San Antonio work injury attorneys at Carabin Shaw may be able to help you recover from the person or entity responsible. Call our office for more information at 1-800-862-1260.
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