Okla. Supreme: Tort Reform Law Allows Lawsuit Against Employer

Jerry Harwood couldn’t collect workers’ compensation benefits after he was paralyzed when he was struck by a car while trying to cross US Route 66 after leaving his workplace.

But a split decision by the Oklahoma Supreme Court on Wednesday gives him a chance to gain compensation for his injury by suing his employer.

In a 5-4 decision, the high court ruled that the same 2013 reform law that made Harwood ineligible for workers’ compensation had opened a door that allowed him to pursue a lawsuit.

“This is the policy decision expressly chosen by the Legislature when it eliminated parking lot, and other similar, injuries from coming within the ‘course and scope of employment,'” the majority opinion, written by Justice Yvonne Kauger says.

Harwood’s attorney, John L. Harlan, said he warned state workers’ compensation commissioners when they denied his client’s claim.

“I told them that you don’t realize what you’re doing,” he said. “You are setting the employer up for tort liability.”

Harwood was struck by a car driven by Patrick Thom McLauglan while crossing the four lanes of Route 66 in Sapulpa after finishing his shift at the Ardagh Group glass container factory at about 11:30 p.m. on July 16, 2016.Typically, the crosswalk that employees use to reach their designated parking lot across the highway is illuminated by streetlights and protected by a traffic signal, but those were not functioning on the night of the accident because of a power outage.

Harwood filed a workers’ compensation claim, but the Workers’ Compensation Commission denied it because he had already clocked out before the accident. The statute adopted in 2013, part of a large package of reforms designed to save costs, excluded from the course of employment any injuries occurring in a parking lot or other common area adjacent to an employer’s place of business before or after an employee’s work shift.

The Oklahoma Court of Civil Appeals affirmed the decision.

So Harwood filed a lawsuit against Ardagh and McLaughlan in Creek County District Court. The court granted the employer’s motion to dismiss it as a defendant, finding that Harwood had failed to state a claim upon which relief could be granted. The Court of Civil Appeals affirmed that decision, but the Supreme Court agreed to review the case this January.

Harlan argued that Ardagh had assumed responsibility for the safety of the crosswalk. He said the company had sent an email to all employees directing them to use the crosswalk to enter their workplace. The company had built railings along a walkway that led employees from the fenced parking lot to the crosswalk, which was protected by a traffic signal. Asdagh had built strobe lights to illuminate the crosswalk when the traffic signal wasn’t functioning.

The Supreme Court majority cited decisions dating back to 1965 that held if an organization assumes responsibility for ensuring safety the organization also assumes liability to exercise reasonable care. The court said the decision to dismiss Harwood’s lawsuit was “premature,” but offered no prediction on whether he will prevail.

“The courthouse doors are open to the employee,” the majority opinion says. “Whether or not the actions of the employer were the proximate cause of the injury to the appellant is one for the jury to decide.”

Chief Justice Richard Darby and Justices James E. Edmondson, Doug Combs and Noma Gurich concurred with the decision.

Justices Kane, Winchester, Rowe and Kuehn dissented.Kane and Kuehn said in a separate opinion that the city of Sapulpa, not Ardagh, controlled the crosswalk.

“While the conditions at the crosswalk were allegedly problematic, they were no more under the control of the employer than they were of the employee,” they said. “As a result, the employee’s remedy for injuries sustained is one in negligence against the motorist who hit him as he crossed the public street using the crosswalk — not against his employer for negligence.”

Harlan said he is confident that he will be able to prove that Ardagh assumed responsibility for the safety of the crosswalk, and the resulting damage award will be far more than Harwood would have received through a workers’ compensation claim.

He said Asplagh assigned supervisors to act as crossing guards during shift changes because they knew that motorists on the busy highway frequently ran the four-way stop sign that had been erected to guard the crossing. The crossing guards were gone, however, by the time Harwood tried to cross the highway that night because he had stayed late to take a shower after his shift in the “hot room,” an area of the plant were glass is heated and shaped, Harlan said.

According to the lawsuit, the company has sent a memo to employees warning them that crossing the lawsuit was “the most dangerous part of their jobs.”

“They knew that this was dangerous as heck,” Harlan said.