What Do You Think: Did 'Up the Ladder Immunity' Bar Employee's Negligence Lawsuit?

13 Dec, 2021 Frank Ferreri


Lexington, KY (WorkersCompensation.com) – Contractual arrangements can make for confusion on workers’ compensation charges and who is responsible for paying what when a worker experiences an injury on the job.

A recent Kentucky case shed light on the Bluegrass State’s exclusivity provisions and how far “up the ladder” immunity can climb.

A medium voltage cable manufacturer contracted with a construction company and another firm for installation of a cable strander in the concrete foundation of a project. The firm was to provide machinery and labor for installation of the strander, and the firm was contracted to work under the supervision of a technician provided by the manufacturer.

After completing the foundation, known as the “pit,” the company put up wooden barriers around it and turned the project over to the firm to begin installation of the strander under the supervision of the manufacturer’s technician. At some point during the installation, the wooden barriers were removed and yellow caution tape was put in their place.

At the instruction of his supervisor, an employee of the manufacturer went to the pit to help a coworker. Believing that he was leaning on a railing, the employee leaned on the caution tape and fell. He received workers’ compensation benefits from the manufacturer’s carrier for his injuries. The employee then sued the firm, alleging negligence based on removal of the wooden barriers.

The firm moved for summary judgment at the trial level, arguing that the Kentucky Workers’ Compensation Act entitled it to “up the ladder” immunity from the employee’s claim. The trial court agreed, holding that the firm was a subcontractor of the manufacturer, which was the employee’s direct employer, and so was entitled to immunity.

The employee appealed to the next level in court, arguing that the firm was not entitled to up the ladder immunity because it could not be considered his employer for workers’ compensation purposes.

Under Kentucky law, the term “employer” is construed broadly to cover not only the worker's direct employer but also a contractor utilizing the worker's direct employer as a subcontractor. The purpose of this provision is to extend immunity up the ladder from the subcontractor who employs an injured worker to the entity which contracted with the subcontractor.

Did up the ladder immunity apply to the firm?

A. Yes. Under the contract, the employee was working, ultimately, for the firm.

B. No. The employee was working exclusively for the manufacturer, which was his employer.

If you chose B, you agreed with the court in Stamper v. Cumberland Machinery Movers and Industrial Services Inc., No. 2020-CA-0889-MR (Ky. Ct. App. 12/03/21, unpublished), which reversed the trial court’s ruling in the firm’s favor, and explained that the firm could not be liable for the employee’s workers’ compensation benefits and so was not entitled to up the ladder immunity.

The court pointed out that the employee was working on the manufacturer’s premises when he was instructed by his supervisor, also an employee of the manufacturer, to go into the pit to assist a coworker who was an employee of the manufacturer. The work was completed on the manufacturer’s behalf, and no employees of the firm were nearby at the time of the employee’s injuries.

“Nothing in the record indicates [the firm] was in any way supervising or otherwise involved with [the employee’s] work at the time of his injuries,” the court wrote. “Because [the employee] was working for [the manufacturer], not [the firm], at the time of the incident, [the firm] could not be liable for Stamper's workers' compensation benefits.”

Thus, no up the ladder immunity applied, and the employee could pursue a negligence lawsuit against the firm.

This feature does not provide legal advice.


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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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