St. Mary's Law Journal


The focus of this Article is tort suits by employees, or their families, based on personal injury or death occurring in the course and scope of the worker’s employment. If an injury does not occur in the course and scope of employment, the defendant’s status as employer becomes irrelevant; the lawsuit is a common-law tort action, and the defendant has all of the common-law defenses. In 1989 the Texas Legislature repealed the former workers’ compensation law and replaced it with the new Texas Workers’ Compensation Act. The new Act took effect on January 1, 1991. The essentially voluntary nature of the Texas workers’ compensation statute results in large numbers of employers choosing not to subscribe to the system. Consequently, tort actions against nonsubscribing employers constitute an important area of tort law in this state. The two main areas of tort liability of subscribing employers are fascinating to lawyers but ultimately are probably not very important to anyone else. Lawyers for injured employees and for the families of deceased employees keep bringing these suits when the facts warrant it, and the reported cases indicate sometimes the plaintiff gets past the summary judgment stage. But at the end of the day it is very difficult to prove gross negligence and even harder to prove intent. Whether the prospect of liability for intentional injury and for gross negligence in causing a workplace fatality makes any significant contribution to workplace safety in Texas is unknown. Nor does there seem to be any information available as to whether threat of such liability has any discernible effect on the settlement value of workers’ compensation claims.


St. Mary's University School of Law