Workers Comp: HENSLEY V. DAVIS (COA 10/6/2006)

WORKERS COMPENSATION:  "Up the ladder" and government employees 
DATE RENDERED:  10/6/2006

The COA reversed the trial court’s dismissal of a tort suit. The plaintiff was a road worker whose employer contracted with the state Transportation Cabinet. His estate and widow alleged that the Transportation Cabinet failed to protect him adequately when they arranged highway barriers in such a way as to cause a truck to leave the road and drop off an unmarked shoulder. The trial court dismissed the lawsuit because the Transportation Cabinet was an up-the-ladder contractor to the decedent’s employer. However, the Court of Appeals reasoned that the Transportation cabinet did not fit the definition of “person” in the statute, by reference to KRS 342.0011 (16), as it was not an individual or a corporation, partnership or any of the other entities contained in that definition. Thus the state did not enjoy the up-the-ladder exclusivity of the workers’ compensation act and could be sued for damages. Sovereign immunity was not discussed.


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