Illinois: Safety Inspectors Are Immune From Tort Liability For Negligent Inspection

An integral and important part of the workers’ compensation “bargain” is the notion that once a workers’ compensation act has become applicable, either through compulsion or election, it affords the exclusive remedy for the injury by the employee or the employee’s dependents against the employer [see Larson’s Workers’ Compensation Law § 100.01]. Under that doctrine, the employer generally enjoys immunity from suit by an injured employee for negligent inspection of machinery and/or the work premises. Such has not always been the case for insurers and others who perform safety inspections on behalf of the employer [see Larson § 114.02]. In reaction to an early line of cases that held carriers and others liable for negligent inspection, a number of states [e.g., Illinois, see 820 ILCS 305/5(a)] amended their workers’ compensation acts so as to include carriers and certain others performing inspection services within the definition of “employer.”

An Illinois appellate court, construing the state’s statutory definition of employer, recently affirmed an order granting summary judgment in favor of defendant safety inspectors in a personal injury action arising from plaintiff employee’s fall into a floor opening that was part of a manlift (a vertical conveyor belt system use to move personnel from floor to floor) [Mockbee v. Humphrey Manlift Co., Inc., 2012 Ill. App. LEXIS 395 (May 18, 2012)]. As a result of her injuries, the plaintiff/former employee was rendered a paraplegic. The plaintiffs contended that contrary to the trial court’s ruling, the safety inspectors owed the employee a duty of care and breached that duty when their respective inspections failed to note the need for a safety guardrail required by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006)), which issued a violation to the employer based on the guardrail’s absence. The appellate court held that the Illinois legislature clearly intended to extend the immunity granted to an employer under the Workers’ Compensation Act beyond the insurer of the employer for a common law action for the negligent performance of gratuitous safety inspections and safety engineering service.