"Dual Persona" and the Attachment of Tort Liability for a Worker's Injur

Normally, given the nature of the workers' compensation system, employers are immune from an injured worker's tort action; his exclusive remedy is workers' compensation benefits. However, when the employer has such a distinct persona, separate and apart from its persona as the "employer," the employee may then pursue a tort action. The two personas of the employer are seen as separate legal entities, one of which (the employer persona) is immune from suit, and the other, distinct persona that is vulnerable to suit.

An example of dual legal personalities is shown with the closely held corporation. Though the corporation is owned by, say, three family members, these family members are separate from the identity of the corporation as the employer. The employee works for and is paid by the corporate entity and, by inclination, the same can be said of the family members because they own the corporation. However, potential liability of the corporation itself is completely separate from any potential liability that may be attached to the family members.

It has been held across the board that the workers' compensation exclusivity principle cannot be impeached on "dual persona" grounds when the employer is the owner or occupier of the land. An employer has no separate legal persona as the owner or occupier of land. Additionally, an employer who manufactures products cannot be subject to a tort action from its own employee based on a theory of products liability. Further, dual personas do not arise where the employer has various divisions with separate operations such as a design center for home improvements and a division that installs home improvement products. Local, state, and federal governments are not subject to a dual persona action. The different divisions and departments within the government system do not operate as separate identities for dual persona purposes; the government is the government, so to speak, no matter what portion of it is at issue.