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Work comp cases may yield product liability claims

There are many situations in which an attorney may maximize a client’s recovery from injuries on the job by examining whether a broader liability theory can be found. Attorneys need not limit a claim to the workers’ compensation system, particularly when there may be a viable personal-injury case for the injured party while keeping the workers’ comp claim intact.

Our firm has litigated auto product-defect cases for more than 30 years, but we also have handled cases in which product defects were responsible for on-the-job-injuries. We have seen such cases stem from industrial equipment, dollies, warehouse vehicles, mobile warehouse storage-shelving units, forklifts and scissor lifts, and an array of machines in the workplace.

As attorneys, we become focused on looking for the aspects of a case that align with our specialty; this may cause us to overlook crossover cases with work comp and product defect or negligence components. Here are a few ways to spot a case that goes beyond worker’s comp litigation and can be filed separately, bringing substantial additional recovery for your client.

Heavy machinery

In a 2011 Illinois case, we represented a man who had been crushed by heavy machinery on the job. There was a work comp case, but separately we settled for a significant sum with the manufacturer of the equipment, Kasto Machinenbau GMBH & Co.

In this industrial accident, our 28-year old client was a service technician doing maintenance and repairs on an automatic storage and retrieval system for steel products. He was conducting an inspection in a storage bay when a nearby gantry crane moved a large container toward him. The container struck our client and pinned his head against an I-beam, killing him. We showed that defects in the design of this particular bay allowed a person to enter an aisle without shutting down the operations of the crane in the nearby aisle.

During the litigation we also uncovered the fact that a critical, remote-control safety device that workers could carry was never made known to our client or to his co-workers prior to the accident.

Multi-employer worksite

Large industrial workplaces often have many different projects underway when more than one employer and/or trade are working in close proximity to one another. A client’s injuries may have been caused by the negligent actions of a party other than their employer. The client will have a viable work comp case because they were injured on the job, as well as a crossover cause against the at-fault party.


Another potential basis for a crossover case: delivery jobs or other situations in which the worker is “off-site.” We have seen significant damages come from slippery surfaces, allowing claims against property owners who were negligent in de-icing sidewalks or even mopping the floor.

Spotting auto product-defect cases

Any accident that involves paralysis, death, loss of limb or brain damage should be analyzed for possible product-liability claims. Automobiles have made great strides in safety, but thousands of vehicles still are being driven on the job with hidden defects. Among the types of defects that can be found in an auto accident:

Restraint-system defects. A second collision can take place when the passenger hits the interior of the vehicle, or in cases of ejection, experiences impact outside the vehicle. Seat-belt injuries can occur when a defective seat belt provides inadequate protection for a passenger. The restraint system in the vehicle in your case may be defective if:

  • An occupant who was believed to have been belted is found unbelted after the accident.
  • A belted occupant makes contact with the vehicle interior, resulting in injury.
  • The occupant is ejected out of the vehicle or the restraint of the seat belt, but the seat-belt buckle is latched.
  • Webbing of the seat belt is loose or torn after the accident.
  • Door-mounted seat belts in the vehicle were ineffective when the door of the vehicle opened.
  • The belt is a lap or shoulder belt only.


Roof crush. Rather than making roofs stronger, auto manufacturers rely on inadequate government standards that fail to require them to conduct dynamic rollover tests on their roofs. A roof is part of the structural support of a vehicle and is key to auto safety. When a roof crushes substantially during an accident from a failure of its side rails, headers or support pillars, catastrophic injuries can occur. Often, this decreased survival space results in the occupant’s head striking the vehicle, causing death, paralysis or brain damage. There may be a roof-crush case if the roof has deformed or crushed or opened over the occupant’s head by deforming sideways.

Seat defects. There are several possible defects related to the seat in a vehicle, including seat-back failure; seat-track failure, inadequate head rests or the lack of headrests. Generally speaking, a seat-back failure can interfere with the car’s restraint system, allowing occupants to strike rear seat objects in a rear-impact collision because they are not properly restrained. In some circumstances, occupants may be ejected from the vehicle when they have slid out from under the safety restraints.

Rollover and stability issues. Sport Utility and other tall, narrow vehicles are prone to rollover. A vehicle should not roll over because of friction forces alone. We have settled many cases with manufacturers of 15-passenger vans, as those roll over with great frequency. A sign for a good stability case is found if the vehicle rolls over and tire marks on the roadway end abruptly.

Defective tires. Tire-tread separation can be caused by bonding problems or introduction of contaminants, under-vulcanization, use of old ingredients or improperly sized components — or something as simple as air being trapped between a tire’s layers — during manufacturing.  Detreading of defective tires can result in single- or multi-vehicle accidents, or even rollovers.  There may be a tire-defect case if an accident was caused by the failure of a tire, leading to loss of control of the vehicle.

Defective airbags. Airbags that deploy at excessive speeds can cause head or neck injuries or other broken bones. Late-deploying airbags can fail to protect an occupant from contact with the interior of the vehicle.

Cab guards and underride protection. Cab guards are required as front-end structures on 18-wheelers that pull flatbeds, trailers and log trailers; they should prevent shifting cargo from making contact with the cab of heavy trucks. Many welding requirements established by national organizations are not followed by cab-guard manufacturers.

Underride guards extend below the rear of the trailer to prevent an auto from riding under the trailer when rear-ended. Many heavy trucks and/or trailers are defectively designed in that the vehicles don’t have proper under-ride devices. When appropriate underride guards are in place, vehicles are prevented from riding under these trailers and severe injuries that may occur in foreseeable rear-end collisions are substantially reduced. If a car submarines under a truck, or if the car is “guillotined” by the under-ride guard, this may be a defect case to bring against the truck and the trucking company in the wreck.


In a product-liability claim, the most important steps are to immediately preserve the product and any other potential evidence. If the product is inadvertently destroyed before trial, you may lose possible claims for product defects. Whether the injuries were caused by a multiple-employer worksite, heavy machinery on the job or a defective automobile, there may be a larger claim that doesn’t affect work comp eligibility and will help maximize the recovery for your client.

Bob Langdon

Bob Langdon

Bob Langdon is a partner in the North Kansas City office of Langdon & Emison. He is a Fellow in the International Academy of Trial Lawyers and a Leaders Forum member of the American Association for Justice.

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