Employers Beware: The Worker's Compensation Act does not bar personal injury claims related to damages caused by your office building

On June 17, 2009, the Louisiana Court of Appeal for the Fourth Circuit determined that employees could recover in tort against their employer for injuries alleged to have been caused by the workplace.   The case, Watters, vs. Department of Social Services, involved the now infamous Plaza Tower Office Building located at 1001 Howard Avenue in New Orleans, Louisiana that was leased almost entirely by the State of Louisiana. Following numerous media reports in the Fall of 2001 concerning the potential existence of “toxic mold” in the Plaza Tower, a class action was filed on behalf of all State employees who were assigned to work in the Plaza Tower from September 1996 to February 2002. The Plaintiffs alleged that they had complained of, among other things, water leaks, defective elevators, the presence of unknown toxic substances, and safety hazards. They further claimed that, during their occupancy of the building, they suffered excessive illnesses, including sinus and allergy problems, debilitating headaches, skin irritation, watery eyes, and fatigue. In addition to suing the building’s owner, the Plaintiffs also sued the State – their employer – on the grounds that the State had breached its duty to provide a safe work place. In response to the suit, the State sought the protections of the Louisiana Worker’s Compensation Act (pdf) and to have the matter dismissed on those grounds, arguing that the Statute shielded it from tort liability. Although the Court recognized that the duty to provide a safe workplace was a specific statutory provision contained within the Worker’s Compensation Act, it nonetheless concluded that the duty could also sound in tort.   Relying on its decision in Ruffin v. Poland Enterprises, L.L.C., the Court refused to apply the Worker’s Compensation bar and, instead, concluded that the clerical employees' claims against their state employer for exposure to mold in the workplace fell outside the scope of protections afforded by the Workers' Compensation Act.  The court reasoned that such exposures were not: a work related accident; an occupational disease; or, peculiar to or characteristic of clerical employment.

Take-Away: The existence of hazardous conditions in the workplace – unless the hazardous condition is associated with the general nature of the work performed– can form the basis of tort liability against employers for failing to provide a safe workplace.