Immunity From Third Party Actions

When a worker is injured during the course of his employment, he may sometimes seek a common law recovery from the third party whose action or inaction caused the injury. Depending upon the jurisdiction, immunity from such a third party action may be extended to the employer or co-employees.

In some states, immunity is only extended to the employer, leaving the worker with the ability to seek a recovery from his negligent co-workers. In other states, although co-workers are immune from third party actions sounding in negligence, the injured worker can still seek a recovery based on gross negligence or an intentional tort. It has been argued in support of co-worker liability that employers and employees are not "third persons" within the meaning of the workers' compensation statute thus immunity from third party actions is inapplicable as to them. It has also been argued that an individual's status as an "employee" does not morally confer upon him immunity for his own negligent acts and the damages that result therefrom.

Those states subscribing to the policy of co-worker immunity require that the co-worker's act be done in the course of his employment for immunity to attach. Some states identify an act "done in the course of employment" pursuant to the workers' compensation standard. Other states use the vicarious liability standard to determine if the co-worker was acting in the course of his employment.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.