Non-Subscriber Arguments in Work Injury Law: The Sole Proximate Cause Defense

When the Texas Legislature passed the Texas Workers' Compensation Act, which created the modern workers' compensation system, they wanted to incentivize employers to opt into the system, while still maintaining employer's right to not participate in the workers' comp system. In this incentive package, the carrot to employers was immunity from negligence lawsuits, while the stick was that the legislature forbid several defenses employers had previously been able to argue in work injury negligence lawsuits.

One of these defense was contributory negligence. In the early 1900s contributory negligence was a defense, where the employer argued that employees were partly responsible for their injuries so employers shouldn't have to pay compensation for a work injury. As the century progressed, this defense became the basis for reducing the amount of compensation that employers had to pay in work injury cases. The thinking was that if the employer was responsible for a certain portion of their injuries, it wasn't right that employers should have to pay the full cost of the damages sustained from the injury.

Stripped of many of the traditional work injury negligence defenses, unable to argue that an employee contributed to their injuries, employers were still able to argue that an employee was solely to blame for their injury.

In this article, experienced Texas work injury attorney, Michael Grossman discusses the Sole Proximate Cause Defense, what it is and how it functions in a non-subscriber work injury case.

Questions answered on this page:

• What does "sole proximate cause" mean?
• How is the "sole proximate cause" defense used by employers in a work injury case?
• How can a lawyer help me in a work injury case if my company is a non-subscriber to workers' comp coverage?

Overview of Work Injury Defenses For Non-Subscriber Companies

Under the Texas Labor Code, the most common defenses available to employers that can be used in a work injury lawsuit include:

• Pre-Existing Condition
• Employee Intoxication
• Self-Inflicted Injury
• Known Hazard
• Employee Signed a Post Injury Waiver
• Not Within Course and Scope of Employment
• Job Routine
• Sole Proximate Cause

Defining "Sole Proximate Cause"

Before digging too deeply into the Sole Proximate Cause Defense, we first have to explain what an inferential rebuttal is, as the sole proximate cause defense is considered one. An inferential rebuttal is an argument posited by the the defendant that suggests that sure, the injury happened, but that they (the defendant) had nothing to do with causing it. And, the Sole Proximate Cause rebuttal suggests that "Yes the injury happened, we the defendant had nothing to do with causing it, and ultimately the injured worker's negligence was the sole proximate cause of the injury."

To illustrate what the Sole Proximate Cause Defense is trying to do, it is important to remember the four elements an injured worker has to prove in a Texas non-subscriber work injury case:

• A duty was owed to the injured worker.
• The employer breached a duty that was owed the injured worker.
• The employer's breach caused the employee's accident
• The accident resulted in damages

As should be clear from the name, the Sole Proximate Cause Defense, attacks the third element that the plaintiff must prove, causation. In any Texas work injury case, the plaintiff must prove all four elements in order to recover damages. If even one element it undermined, it destroys the case. Whereas before the legislature outlawed the defense, an employer could argue that the employee contributed to their injuries, in an effort to reduce the amount of damages they had to pay. Now employers who wish to use that line of argument have to argue that the whole accident was caused by the employee's negligence.

This Defense in Non-Subscriber Work Injury Cases

Employers who elect to be non-subscribers are risk-takers. By not providing workers' compensation coverage, they're assuming that no injury will ever happen. Period. Now, for some employers this may seem sensible. Injuries sometimes don't seem a likely possibility in an office setting, for example (even thought they still happen more often than people think).

As such, they're opening themselves up to lawsuits and just a few defenses, as well as a lack of contributory negligence arguments--meaning that if the employer is even 1% liable for the injury, they're responsible for 100% of the compensation to be awarded. Again, these disadvantages were put in place to discourage employers from opting out. So, let's discuss how the sole proximate cause is used by these employers and how it functions in work injury cases as opposed to in traditional negligence cases.

As we discussed earlier, in general personal injury cases, the rebuttal is used to argue that it wasn't the negligence of the defendant that caused the plaintiff's injuries. The defendant is not denying that the injury happened, they're just rebutting that they had anything to to do with it. Therefore, in work injuries, sole proximate cause is a rebuttal that suggests the employee's own negligence caused the injuries and not the non-subscribing employer's negligence. Let's use another example:

• Bob the boss is Steve's non-subscribing employer. Bob tells Steve to drive the company van to a job site to deliver some lumber that is in the back of the vehicle. The wood is heavy, Steve and Bob know this, but Bob doesn't allow Steve to bring along another employee to help him move the lumber. Therefore, when Steve drops a few heavy pieces of wood onto his foot while unloading the vehicle, he can bring forward a work injury lawsuit against Bob to get compensation for his injuries. Bob may attempt to say that Steve was the sole proximate cause of his injuries because he lifted the wood, but Bob did know the wood was heavy. Like we mentioned above, if Bob the boss is 1% responsible, he's 100% on the hook. So, even though he attempted to use the sole proximate cause defense, the jury will most likely find him somewhat responsible, and therefore, fully responsible.

   

From the example, it is clear that Sole Proximate Cause is generally a 'Hail Mary' for the defense. The likelihood of it succeeding before a jury is extremely remote, but in the really unlikely event that a jury agrees with the Sole Proximate Cause defense, that pretty much torpedoes a work injury case.

Our Non-Subscriber Work Injury Attorneys Know How to Debunk the Sole Proximate Cause Defense

In over 25 years of fighting to get injured Texas workers the compensation they deserve, the attorneys of Grossman Law Offices have seen the Sole Proximate Cause Defense time and again. It is generally only dangerous for an attorney who doesn't see it coming and doesn't make they effort they should to ensure that the jury understands that an injured worker's injuries were caused by their employer's negligence. However, given the stakes if the defense succeeds, it is something that every plaintiff's attorney has to be aware of and ready to rebut.

Call our attorneys at Grossman Law Offices, based in Dallas, TX, to talk about your work injury, and we'll help you understand how work injury law affects you: (855) 326-0000.

Related Articles for Further Reading:

• Expert Witnesses Play A Major Role In Work Injury Lawsuits
• Overview Of The Elements In Work Injury Cases
• How Much Are My Texas Non-Subscriber Injuries Worth?