Employer Liability after Worker’s Family Exposed to Toxic Substances

Your husband works at a factory and becomes ill. During his treatment, the doctor discovers that his illness is work related after he was exposed to toxic substances. His employer’s workers compensation program picks up the expenses for his treatment. Unfortunately, you begin to notice the same symptoms in the rest of your family. As the symptoms get worse, you wonder, “If my husband was poisoned at work by being exposed to a toxic substance, and my child and I became ill when my husband came home, is my husband's employer liable for our injuries?” If you or your child’s illness was actually caused by exposure to the same chemicals, then your husband’s employer may be liable for a toxic tort negligence claim.

Your first step is to determine that your husband’s employer failed to exercise due care. In order to establish that the employer is liable for negligence, you must prove that the employer failed to exercise due care to prevent foreseeable harm. “Due care” is that degree of care that a company handling this toxic substance should have reasonably taken to avoid exposure to the employees, their families, or other members of the public. Once you prove that the company breached their duty of due care by failing to take reasonable precautions to avoid exposure to the toxic substance, you then have to prove that the breach of that duty of due care was the actual and proximate cause of your injuries.

“Actual cause” means but for the company's failure to take precautions would your husband, you and your child have been exposed to the toxic substance? If the answer is no, you have established actual cause. You will also need to establish proximate cause. Proximate cause means were there any unforeseeable intervening events that would relieve the employer of liability? If the answer is also no, then the employer is liable for negligence for the injuries caused by exposure to the toxic substance.

The company might assert the defense of assumption of the risk, which means that your husband recognized and understood the danger and voluntarily chose to encounter it. For example, if your husband violated procedures for handling the toxic substance and that resulted in his exposure. Did he have a work uniform or other clothes that he was supposed to leave at the plant instead of wearing those clothes when he came home, thereby exposing his family to the toxic substance?

The response to the employer’s defensive theory is countered by showing that your husband complied with company regulations for handling the toxic substance, but the exposure occurred anyway. Other factors that can help refute an “assumption of risk” defense include:

  • Other employees experiencing similar symptoms;
  • Other families being diagnosed with the same illnesses;
  • Handbooks or safety guidelines written by the company that your husband complied with;
  • Excessive chemical injuries noted in OSHA, or workplace illness, logs;
  • The company has a track record of employees being exposed to this particular substance, or other substances.

If other employees were also exposed to the toxic substance and they now have similar claims of exposure to the toxic substance, a court may determine that a class action is appropriate. A class action may be appropriate when there are numerous claimants with similar claims.

When you, your husband and your child complete your medical treatment and are released by the doctor, obtain each person's medical report and medical bills. The medical reports will document the nature and extent of the injuries and will determine the amount of compensation to seek for pain and suffering. Compensation for pain and suffering is an amount in addition to the medical bills. Your claim and your husband's claim should include the medical bills, any wage loss and compensation for pain and suffering. Since your husband was injured on the job, it would be advisable for him to speak with a workers' compensation attorney. A workers' compensation claim is filed instead of filing a personal injury lawsuit. Some states do not allow employees to file negligence claims, but instead limit their relief to a worker’s compensation claim.

Your claim and your child's claims would be personal injury claims since you are not employed by your husband's employer. Your child's claim would also include the medical bills and compensation for pain and suffering. If your child is a minor, you will need to be appointed guardian ad litem to sue on behalf of your child because a minor cannot sue on his or her own behalf. If the case is not settled, your personal injury lawsuit for negligence must be filed prior to the expiration of the statute of limitations or you will lose your rights forever in the matter.

In addition to your general civil remedies, you may want to contact state and federal workplace safety agencies. For example, since this case involves the exposure to a toxic substance at a place of employment, contact the Occupational Safety and Health Administration (OSHA). They have the authority to conduct workplace safety inspections and review injury logs. They can also impose fines on employers who do not provide a safe working environment.

Because a “family” claim may overlap several areas of law, you should consult an attorney that knows personal injury and workers compensation laws. They will be able to advise you which civil and administrative options are best for your situation and when to exercise those rights.