Injustice-This Law Needs to Change

Texas law does not allow a person to recover if she is killed on the job, even when her employer knows she will be killed.

If an employer has worker’s compensation insurance and an employee suffers an injury on the job, then the employee’s medical bills and salary is paid by worker’s compensation insurance. In return, the employee cannot sue the employer for causing the employee’s injuries.

However, there is one exception-if an employee dies as a result of the gross negligence of her employer, then the employee’s wife and children can sue the employer. In other words, the employee’s wife and children have the legal right to sue the employer only if the employer was grossly negligent in causing the employee’s death. To prove gross negligence, the employee must satisfy a two prong test. First, the employee must show that the act or omission, when viewed objectively by the employer, involved an extreme degree of risk and the probability of potential harm to others. Under the second prong, the employee must establish that the employer had actual, subjective awareness of that risk, but proceeded anyway with conscious indifference to the rights, safety, or welfare of others-the employer knew of the danger and didn’t care.

But there is another Texas law that trumps the above exception. This horrible law states that the employee cannot recover for gross negligence against the employer if the death arises from a criminal act performed by another. For instance, the employee cannot sue the employer for gross negligence when her death was caused by a shooting, stabbing, etc.

As reported in the news every day, deaths occur at many stores, convenience stores, restaurants, etc during business hours. On occasions, someone enters the stores and robs the store and kills the employee. On other occasions, an employee is being threatened by someone until she is killed. The above Texas law does not allow these employees to sue their employers even when the employers know the employees will be killed.

The Firm recently reviewed a case where our hands were tied. An employee named “Jane” was being harassed and threatened by “Joe”-he was not an employee. For six months, Joe constantly called the store that Jane worked at and stated he would kill Jane. Joe called Jane’s co-workers and stated he would kill Jane. The co-workers reported this to Jane’s supervisors. Joe would show up at the store and watch Jane for hours. Jane’s employer knew of this too. Jane obtained a restraining order as the threats continued daily. Joe violated the restraining order and would show up at the store and would say he was going to kill Jane. Jane’s employer knew of this too. Jane pleaded with her employer to be moved to another store or provide security at the store. The employer did not help. One day, Joe proceeded to purposely crash his vehicle into one of Jane’s co-worker’s vehicle. The employer still did not do anything. Finally, Joe did what he said he would do along-Joe killed Jane. Joe entered the store. Jane quickly called her mom and screamed for help. Joe then grabbed Jane and stabbed her numerous times. Jane’s mom heard the entire ordeal; mom actually heard her daughter being killed. After the police arrived, Joe killed himself.

The Firm spoke with Jane’s family and we researched Texas law. Sadly, Jane’s family could not recover for Jane’s death.

The employer had worker’s compensation insurance. The employer was grossly negligent because it knew for six months that Jane would be killed but it did nothing-it knew of the danger but it did not care. However, Jane’s death was caused by Joe’s criminal act. Because her death was caused by a criminal act, Jane’s family could not sue her employer for its gross negligence.

This is injustice.