Babcock Business Advisor
March 2, 2005 - Vol. 2 No. 001

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Employer not vicariously liable for employee’s negligence that resulted in alleged on-the-job injury to unborn child

Generally, employers are vicariously liable for the damage their employees cause while exercising the functions for which they are employed. This responsibility attaches even when the injury is to an employee’s child.  But, the employer’s responsibility attaches only when the employer might have prevented the act that caused the damage and did not do so.

About two weeks ago, the Louisiana First Circuit, applying these principles in Cox v. Gaylord Container Corporation, 2003-0692 (La. App. 1 Cir. 2/16/05), _____ So.2d _____, ruled the employer was not vicariously liable for the employee’s negligence that resulted in an alleged on-the-job injury to plaintiff-employee Laura Cox’s unborn child.

The case arose when Laura Cox, a pregnant employee of Gaylord Container Corporation, sustained injuries on the job when she ran a forklift she was driving into a steel I-beam. At the time of the accident, Laura was taken to the hospital, examined in the emergency room and released the same day. She gave birth to a girl four months after the accident. The child was born with cerebral palsy.

Ms. Cox filed suit on her child’s behalf against Gaylord alleging the child’s neurological damage was a result of the accident.

In affirming the trial court’s judgment in favor of Gaylord (dismissing the employer from the case), the court found Louisiana law does not extend strict liability to situations where an employer is powerless and without control to prevent acts causing damage.

If Gaylord took measures to prevent the act that caused the damage, it would violate federal law by discriminating against Ms. Cox because of her pregnancy. The Pregnancy Discrimination Act prevents an employer from treating a pregnant women different from other employees. The act specifically requires employers to treat pregnant women the same for “all employment-related purposes . . . as other persons not so affected.”

Thus, Gaylord had no choice but to keep Ms. Cox working. And even though there was no evidence Ms. Cox requested light duty or asked to be moved to another assignment, Gaylord could not have required her to do so.  Therefore, based upon the evidence and the law, Gaylord had no way to protect itself from the child being negligently injured prenatally by her mother while her mother was on the job.

New Attorneys at the Firm

Mark D. Plaisance - Mr. Plaisance, concentrates his practice in the areas of appellate practice, complex litigation, municipality law, criminal law and general civil litigation.  He has handled scores of appeals in both state and federal court. He has argued cases before the Louisiana First Circuit Court of Appeal, Third Circuit Court of Appeal, Fifth Circuit Court of Appeal and the United States Federal Fifth Circuit Court of Appeal on such topics as desegregation law, school building ownership law, medical malpractice law and personal injury law... Click here for more...

Drew Bernard - Drew Bernard attended Catholic High School in Baton Rouge before obtaining a finance degree from Louisiana State University.  After graduating from the L.S.U. Paul M. Hebert Law Center and being admitted to practice in 2002 he served as the law clerk to Judge Anthony J. Marabella, Jr. in the 19^th Judicial District Court in Baton Rouge.  Click here for more... (Sorry, Drew says he's too busy to get a photograph taken.)

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