#1339718, Robin Tacadena v. John Nam et al. filed 9/24/09

Plaintiff’s Attorney: Benjamin P. Feld

Verdict: $30,500.00                               Court Trial Dept. 6

Plaintiff was originally hired as a driver for a dental lab that made ceramic teeth and other dental items. During her employment, Plaintiff injured her hand with a scalpel when trying to clean ceramic clay off a plastic mold.  Plaintiff filed suit under Labor Code 3706 which states that “(i)f any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages as if this division did not apply.”  Plaintiff alleged Defendant asked her to perform the task without fully explaining the safest way to do it. Defendant testified he had taught Plaintiff how to do the job and that her use of the knife was inherently dangerous.  Plaintiff went to the emergency room and eventually had surgery performed that was paid for by Defendant.  When the surgeon recommended therapy, Defendant refused to pay. Plaintiff then filed a workers’ compensation claim that was disputed by Defendant.  The workers’ compensation court trial found Plaintiff had sustained an industrial injury.  At the civil trial the court found Plaintiff was negligent in how she used the knife and Defendant was negligent in that he did not adequately train Plaintiff in how to safely remove clay from molds.  The court relied on Labor Code section 3708 which states that when an employee brings an action for damages “it is presumed that the injury of the employee was a direct result and grew out of the negligence of the employer and the burden of proof is on the employer …”. The court ruled that  Defendant did not successfully rebut the presumption of his negligence and awarded Plaintiff $500.00 for emergency room expenses, $0 for past loss of earnings, future loss of earnings and further medical expenses, $25,000.00 for past pain and suffering and $5,000.00 for future pain and suffering.

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