Monthly Archives: September 2008

Neck deep in ballot initiatives — Part I

Fuck the presidential election. The outcome is a foregone conclusion. Our electorate is stuffed with barely sentient shitheads who genuinely believe that presidents are in charge of social matters and that presidential elections must therefore turn exclusively on a handful of largely meaningless social issues — gay marriage, gun rahts, abortion, public displays of religious faith, etc. — and harebrained patriotism. The current “debate,” such as it is, proceeds along entirely retarded and Republican-favoring lines (OMG Hussein called Sarah Palin a pig in lipstick !!1!one!eleven!!!). Add to that the facts that Obama is African American and we’re still in large part a nation of racist pricks.

Bottom line: John McCain’s ascendancy is inevitable. That means we remain in a perpetual state of war and within a very few years experience economic collapse on a scale that’ll make what happened in post-WWI Germany look like the tearful demise of a six-year-old’s sidewalk lemonade stand by comparison.

On the plus side, we’ll get to find out first hand who was right about life in the state of nature, Thomas Hobbes or John Locke. My money’s on Hobbes.

Let’s discuss something else, then. This being a presidential election year and all, we Coloradans will once again be awash in ballot initiatives and referendums aimed at amending the state constitution or adding to the Colorado Revised Statutes. Eighteen — count ’em, EIGHTEEN — such measures will appear on ballots statewide. The Colorado Independent, f/k/a Colorado Confidential, tells us that the ballot will be the longest our state has seen since citizen initiatives came to pass in 1912.

The text and current “Blue Book” analysis of each measure is available here. This is the first of what I hope to be a series of entries on the initiatives and referendums we’ll be asked to vote on come November.

Today we’re talkin’ Amendment 57, a proposal that can only be described as revolutionary. Workers’ compensation laws, the granddaddy of all tort “reform,” swept the nation in the early 1910s. Workers’ compensation statutes prohibit workers from suing their employers to recover money damages for injuries occuring in the course and scope of employment. Some states have an exception to the general rule under which the employee may sue for injuries resulting from especially egregious misconduct, usually designated an “intentional tort,” but Colorado doesn’t even have that. With but a couple of exceptions, workers’ compensation immunity is absolute in this here state.

Employees lost their right to sue but gained workers’ compensation benefits, a sort of no-fault insurance intended to compensate the employee for economic losses arising from work-related injuries. Workers’ compensation benefits in Colorado include medical expenses, lost income (up to a point), vocational rehab and disability compensation. There’s no recovery of other compensatory damages (pain and suffering, for instance) or punitive damages.

Amendment 57 would add a new section ( designated C.R.S. 8-2-124) to the state labor code¬† imposing on each employer a duty to “provide a safe and healthy workplace for its employees.” That’s no great shakes in and of itself. Most states have safe workplace statutes. They just don’t create any enforceable rights thanks to workers’ comp immunity provisions.

The revolutionary part lies in subsection (2) of the proposed statute. I can barely believe what my goddamn eyes are telling me up in hyah. If Amendment 57 passes, employees injured on the job will still be able to collect their workers’ comp benefits. They’ll also be able to sue their employers in district and recover full tort damages, including exemplary damages, if the employer failed “to comply with its obligations under this section”, i.e., its duty to provide a safe and healthy workplace. The employee is entitled to a jury trial trial upon request made in accordance with the rules of civil procedure. The only limitation on recovery is that the employee can’t collect in the civil action damages for which he got compensated through the workers’ compensation system.

I’d expect to be grinning from ear to ear and punching the clown like it owes me money over the prospect of something like Amendment 57 becoming law.¬† I must be getting old, though, because reflection seems to be tempering my enthusiasm.

One of the great lies that tort “reform” vermin love telling is that a civil justice system in which injured people get a fair shake keeps new businesses from moving into a state and causes existing businesses to move out. In Amendment 57’s case, though, it might just hold true. It’s not at all difficult to imagine the imposition of new and potentially limitless liabilities over and above existing workers’ compensation costs driving businesses away. Workers’ compensation immunity has been the reality for close to a century. It’s too deeply engrained in the American economic fabric to be removed without serious ill effects.

Moreover, there’s a veritable butload of questions. The statute doesn’t set any liability standard. In other words, it doesn’t say whether the employee must prove that the employer failed to provide a safe workplace intentionally, willfully and wantonly, recklessly or even negligently. Does that imply a strict liability standard?

Further, Amendment 57 says nothing about defenses. Would our existing comparative negligence, assumption of risk and pro rata liability/nonparty fault statutes apply to civil actions brought under subsection (2)? If not, Amendment 57 arguably imposes not just strict liability but absolute liability.

And what about the statutory cap on recovery of noneconomic damages? Amendment 57 doesn’t conclusively address the issue, but the language of subjection (2) strongly suggests that the cap would not apply at all. If that’s true, is Amendment 57 subject to being shot down on equal protection grounds for providing extraordinarily favorable treatment to one particular class of injured people?

Finally, as a practical matter, how much additional recovery for injured employees would Amendment 57 actually provide? I doubt that employers’ commercial general liability coverage would extend to Amendment 57 liability, and I don’t see insurance companies scrambling to create new coverage just for this. So, then, employees who succeed in court will be left trying to collect their judgment from the employer’s assets. As often as not, that particular war isn’t worth waging.

The above musings are probably academic anyway, as it’s difficult to imagine Amendment 57 actually passing.