Many injuries can occur on a farm. If a farming operation hires employees, the owner must take into consideration the attendant risk that an employee may be injured. An employer should (and must in some circumstances--see occupation health/safety) take affirmative measures to ensure a safe workplace. When prevention fails, employers may be liable for an employee's injury, or when an employee commits a tort (an injury or wrong) against a fellow employee or third party. This section discusses the employer's liability exposure from an injured employee. The next section (see employee liability) describes the employer's potential liability arising from a situation in which the employee injured a third party.
If an employee of a direct farm business is injured, the injured employee can seek compensation in one of two ways--a claim under the Illinois Workers' Compensation Act or a common law action for tort. An employee may not seek both compensation from workers' compensation insurance and damages through tort. Collier v. Wagner Castings Co., 81 Ill.2d 229, 241 (1980).
Workers' Compensation
Most businesses in Illinois must participate in the state's workers' compensation program as provided by the Illinois Workers' Compensation Act. Participation in the workers' compensation program precludes liability under the tort rules discussed above. However, the insurance mandates in this program may be quite costly. Although an "agricultural enterprise" is exempt from participating in the workers' compensation program if it employs less than 400 working days of agricultural labor per quarter in any quarter in the preceding year, excluding family members (820 ILCS § 305/3(19)), agricultural operations can elect voluntarily to participate in the state workers' compensation program. Due to the cost, however, most agricultural operations do not participate in the state program if they qualify for the exemption.
It is unclear, however, the extent to which some aspects of a direct farm marketing operation would fall under the "agricultural enterprise" exception. If a court held that the direct farm business was liable for an employee's claim and that the operation was required to carry workers' compensation insurance, and the operation had not maintained workers' compensation insurance, the direct farm business would be liable for the workers' compensation benefits. Moreover, it is likely that the operation's general insurance policy would not cover such a liability. Therefore, if any of the operation's employees engage in activities that would not qualify as a traditional farming activity (e.g., processing food), or if the employee's time is divided between agricultural and non-agricultural activities, the direct farm business should consult an attorney to determine the applicability of the Illinois Workers' Compensation Act and whether the entity must comply with the mandatory insurance requirements.
If an employee of a direct farm business contracts a disease arising out of his/her employment, or a disease that becomes aggravated and disabling as a result of the exposure of the employment, he/she may seek compensation from the employer under the provisions of the Illinois Workers' Occupational Disease Act. The same ability of the employer to elect insurance and the same exemptions for agricultural enterprises as found in the Workers' Compensation Act apply to the Occupational Disease Act.
Tort Liability
In cases where employers are not required to maintain workers' compensation coverage (see discussion above), Illinois common law tort principles will determine an employer's liability for an employee's on-the-job injuries. Although an employer is responsible for maintaining a reasonable safe workplace (including tools and other machinery), an employer is not always liable for an employee's injury. Rather, an employer's negligent or intentional act must lead to the injury. Whether or not an employer's negligence leads to an employee's injury is decided on a case-by-case basis. To avoid negligence, an employer must use the standard of care to protect his/her employees from workplace injury that an ordinary, prudent and reasonable person would under the circumstances. Tort liability rules obligate an employer to protect against reasonably foreseeable injuries, not every injury that may occur. An employer is liable for defects of dangers that he/she reasonably should have had knowledge of. An employer must use the same standard of care in discovering workplace dangers and must warn employees of workplace hazards the employer knows or should know of.
Two principles, however, may limit the liability exposure of the employer--assumption of the risk and contributory negligence.
Employees may assume the risk attendant to their position. Assumption of the risk is based on the implied or express agreement between the employer and employee that the employee will assume the risk of injury in performing the tasks necessary to accomplish the job. An employee only may assume known risks, and such risks do not include the risk of the employer's negligence. That is, the employer still has the duty to reasonably maintain a safe workplace.
Contributory negligence limits liability if the jury determines that the injured employee's negligence contributed to the injury. If the employee's negligence is more than 50% of the proximate cause of his/her injury, the employee will not be able to recover damages from the employer. 735 ILCS 5/2-1116. If the employee's negligence is not more than 50% of the proximate cause of his/her injury, the employee's award is reduced proportionally by the amount the employee's negligence contributed to his/her injury. Id.
It is important to note than an employer's business insurance policy may cover the tort liability stemming from an employee injury suit arising from employer negligence. This may not be the case, however, for workers' compensation claims discussed above.
Continue to Employee Liability 