St. Mary's Law Journal


Most current workmen’s compensation schemes allow an employee to sue a third party who negligently caused their injury while still receiving workmen’s compensation benefits. It is logical, then, that when an employee is injured due to the employer’s negligence arising from a second capacity that creates obligations independent from those of an employer, the right to bring a common law action should not be denied. For instance, a doctor still owes his patients the duty of providing good medical care, regardless of whether that patient is an employee. However, the majority of courts continue to reject this “dual capacity” doctrine on the basis that the statutory scheme precludes all recovery; a disappointingly simplistic response to a complex issue. Despite the majority trend in rejecting the dual-capacity doctrine, however, there are compelling reasons for its preference. First, a third-party action should be no less viable because the duty owed springs from an extra-relational capacity of the employer rather than another third party. Further, while an employee can be said to have at least implicitly accepted the exclusive compensation scheme as it applies to his job, it’s unjust to assume this also waives liability for tortious conduct arising outside of that job. Finally, an employer who knows his tortious conduct outside the employment relationship will be protected by the exclusive remedy scheme has no incentive to correct the condition which caused the injury. For these reasons, employees should retain their right to sue at common law when their employer satisfies the dual capacity test and courts should restore the doctrine the life blood it deserves.


St. Mary's University School of Law