Can worker sue his employer for loading dock injury?

Did this employer intentionally create a dangerous working condition that made the worker’s injuries “substantially certain” to occur? 

Quintino DiNino Jr. worked for FedEx as a materials handler. He was injured at work when he fell into a gap between the truck that he was unloading and the loading dock.

The trucks were equipped with airlift roller conveyor systems that made it impossible for the trucks to back up flush to the loading docks. This created a gap between the edge of the loading dock and the rear of the trucks.

While moving a container off the truck, DiNino fell into the gap. The container rolled onto and crushed his right leg, fracturing his tibia and fibula. DiNino also suffered extensive degloving of the soft tissue in his lower right leg, requiring skin grafting to repair. DiNino received workers’ comp benefits.

But he also sued FedEx and a co-worker who was the truck driver.

Usually, if an employee receives workers’ comp for an injury, he’s prohibited from suing his employer and any co-worker involved in the incident. There are exceptions, and DiNino tried to use two of them in his lawsuit.

DiNino alleged FedEx knew about the safety hazard posed by the gap between trucks and the loading dock. Citing the “substantial certainty” exception, DiNino argued FedEx’s failure to make sure the loading dock with the gap was safe “created a substantial certainty that [he] would be injured.”

According to DiNino’s lawsuit, the truck driver “failed to properly position his truck in the loading dock by stopping the truck too far away from the edge of the loading dock and thereby leaving an unsafe space or gap between the rear of the truck and the loading dock.” Exceptions are sometimes allowed to the workers’ comp exclusive remedy when the incident involves operation of a motor vehicle.

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