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The tragic death of Halyna Hutchins shines a very bright light on danger in the workplace and how safety is not always the paramount issue it should be. Work accidents and injuries are often covered by state workers’ compensation laws, but the litigious society in which we live has undoubtedly left many wondering if her family will sue the people or companies involved. Many questions remain to be answered, but one fact is crystal clear: someone (perhaps more than one person) was grossly negligent and Halyna Hutchins is dead as a result.

Before beginning this blog, I want to extend my deepest sympathies to the Hutchins family. There can be no greater loss to a child and a father that the sudden death of a mother. As a father of four, it wrenches my gut to think of what the Hutchins are going through right now. I have also had many clients over the years have to bury their loved ones after a sudden and unexpected death due to the negligence of another party. It is the most painful thing you can ever experience. My heart goes out to Halyna’s family.

Workplace safety is an often-overlooked process. The Occupational Safety and Health Administration (O.S.H.A.) is the federal agency that oversees much of our country’s workplaces. When violations of O.S.H.A. standards take place, companies can be fined and reprimanded, but there is no direct remedy for the injured employee. In most states and in most situations, workers who are injured or killed on the job are limited to the benefits provided by their state’s worker’s compensation system. In what has ironically been called “The Grand Bargain,” workers’ gave up their right to sue their employers about 80 years ago in exchange for “medical and indemnity benefits” payable by the employer’s workers’ compensation insurance carrier. In this “bargain”, the employer is granted immunity from lawsuits even when they themselves were negligent.

Over the decades, state legislatures have been whittling away at these benefits to the point that in many states workers’ compensation benefits have become woefully limited and inadequate. The death benefit in the State of Florida for example is $150,000. And that is only paid out if there are dependents under the workers’ compensation statute.

In a tragic and terrible example of this inequity, a client of mine (22-year old woman) was shot and killed during a robbery while working at a Tampa restaurant. There had been 5 other armed robberies at the restaurant in the preceding two years. The restaurant didn’t tell her that, and they left her and another young woman alone to close the restaurant at night. They were both shot.  But for the workers’ compensation immunity granted by Florida Law, these facts would have given rise to a claim for Negligent Security against the employer. She had no dependents. The Florida workers’ compensation system required the employer to pay for her funeral expenses, and that was it. They paid $7,500.

This immunity from negligence, in my humble opinion, has led many employers to take safety less seriously. Regretfully, many times the threat of a lawsuit is the only thing that keeps would-be bad actors in line. Without a system to truly hold people accountable, carelessness in the workplace will never go away. After 26 years of practicing workers’ compensation law, I have hundreds of stories of clients who were injured or killed because of employer negligence. It is both infuriating and depressing. At times, O.S.H.A. steps in and employers are hit with big fines, but those instances are rare and do little to help the victims.

The workers’ compensation immunity granted to employers usually does not extend to other people or companies. For instance, if you are driving for work and you are rear-ended by another driving who doesn’t work for your company, you will most likely have a workers’ compensation claim and a third-party negligence claim against the negligent driver.

In Halyna’s case, the first question is going to be: who was negligent? The second question is going to be: does that person or entity have immunity under a workers’ compensation system? In situations where people are working together like in the Rust production, that will often depend on the contractual relationship between the people involved. Were they all “employees” of the same employer? Or perhaps some were independent contractors or subcontractors on the set. The answers to these questions will determine whether or not Halyna’s family has a workers’ compensation claim, a negligence claim, or perhaps both.

Regretfully, these answers will give very little solace to the Hutchins. The only remedy available to us in situations like this is money. There isn’t enough money in the world to replace a wife and a mother. The best that can happen is change: a heightened focus on workplace safety. Perhaps something in Halyna’s name is done to make film production safer. Raising safety standards to prevent further injury or loss of life won’t help the Hutchins, but in some way, if real, life-saving change is made, perhaps her death won’t have been in vain.

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