Since the enactment of the first state workers’ compensation laws one hundred years ago, exclusive remedy provisions within state acts have been a core component of the workers’ compensation “bargain.” Under the terms of that bargain, in exchange for modest but assured benefits, injured employees give up their common-law right to sue the employer for damages for any injury covered by the act.
The exclusive remedy doctrine has been remarkably resilient over the past ten decades. There have, of course, been a number of attempts to chip away at its edges. One such attempt, which enjoyed some modest success in California and Ohio from 1977 to 1983, is the dual “capacity” or dual “persona” theory of liability: that an employer may become a “third person,” subject to suit by the injured employee, if it possesses a second “capacity” or “persona” that is sufficiently independent from and unrelated to its status as the employer. For example, where an health care provider employer treats the employee as it would any private patent, a number of decisions have allowed a malpractice action to proceed for alleged negligence in the provision of that service. Generally, however, injured employees have enjoyed very little success in bringing dual capacity or dual persona tort suits against employers. The lack of success hasn’t prevented employees from occasionally dusting off the theory and attempting it anew.
In a recent case from Pennsylvania, Soto v. Nabisco, Inc., 2011 PA Super 249, 2011 Pa. Super. LEXIS 3753 (Nov. 21, 2011), a state appellate court refused to allow a tort action to proceed where the injured worker contended the employer possessed a distinct and separate “persona”–it had acquired all property and equipment owned by the worker’s previous employer through a merger and the employee contended the employer could, therefore, be liable in tort for a machine’s faulty design and operation.
The worker initially began his employment with Nabisco in 1999-2000. In July 2001, Nabisco merged into Kraft and ceased to exist as a separate company. As a result of that merger, the worker became a Kraft employee. After the merger, the worker severely injured his arm and hands while operating a Ritz Cracker Cutting Machine. He sued his employer, Kraft, in tort. The employer demurred, relying upon the exclusive remedy of the Workers’ Compensation Act as a bar to tort recovery.
The worker argued that the “dual persona” doctrine applied to his case, that although the employer would be the ultimate payor, if it had a distinct and separate role as the acquirer of the former company’s business assets. The trial court disagreed and the worker appealed.
The worker argued that federal courts in Pennsylvania have held that, under the “dual persona” doctrine, an employee could recover against his employer, who was also the successor in interest to the manufacturer of a defective product.
The appellate court observed that the Pennsylvania Supreme Court had applied the “dual capacity” doctrine in only one case, Tatrai v. Presbyterian Univ. Hosp., 497 Pa. 247, 439 A.2d 1162 (1982), a case involving a hospital employee who became ill at work and sought treatment at her employer’s emergency room. There the supreme court reasoned that the employee, at the time of her injury in the ER, was in the same position as any other member of the public receiving medical treatment because the ER was open to the general public. The Tatrai court held that the hospital owed the employee the same duty of care it owed to the public and, therefore, the hospital was not immune from the employee’s tort suit.
The appellate court contrasted the “dual perona” doctrine with the “dual capacity” doctrine, noting that under the former, the question was not one of “activity;” it’s one of “identity.” The court noted that the “dual persona” doctrine was narrower, or more “conservative,” than the “dual capacity” doctrine.
The court observed that after the merger, the worker continued to work in the same essential capacity as before, only as an employee of Kraft. Essentially the only thing that changed was that his paycheck now came from Kraft. The cutting machine had been manufacturered exclusively for Nabisco, was used only by Nabisco–then Kraft–employees, and was not available to the public. The appellate court finally observed that the Pennsylvania courts had accepted the dual “capacity” doctrine on only one occasion (in Tatrai) and had never accepted the “dual persona” doctrine. The court concluded that the dual persona doctrine was designed to preserve, not expand liability. If Nabisco, as the employer, would have no third-party liability, then Kraft, as the successor employer, should have no liability. The worker’s only remedy was under Pennsylvania’s WCA.