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Banning smoking might not avoid liability

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in Human Resources

If, like many employers, you have adopted a smoke-free workplace policy, you may think your organization won’t be liable if an employee lights up on the premises and starts a fire. Unfortunately, it’s not quite that simple.

Your organization still could be liable if an employee’s careless smoking caused damage to another’s property. That’s one reason to ban smoking and set up smoke alarms that react to cigarette smoke.

Recent case:
Heidi Haskell worked for a real estate developer and was the sole person working in a model home. Another company owned the model, which was being leased by Haskell’s employer, Comstock Homebuilding.

Unless she was showing other homes in the development, the company didn’t permit Haskell to leave the home during her shift. Her job responsibilities included answering calls from potential buyers, taking out the trash and otherwise maintaining the model in good condition.

One day, Haskell stepped out on the deck to have a cigarette. Then the phone rang, so she snuffed out the cigarette and headed back inside.

You know where this is going, right? Sure enough, the deck caught fire and the house burned down.

The owner sued Comstock, arguing its employee, Haskell, had been negligent. Comstock tried to argue that it wasn’t liable because Haskell wasn’t doing her job when she smoked, and that company rules forbade smoking on the premises.

None of that mattered to the court. It said that Haskell was on duty, and the consequences of banned smoking while she was on duty was the employer’s responsibility. (Estes v. Comstock, No. COA08-730, North Carolina Court of Appeals, 2009)

Final note: If you allow smoking on breaks, build in a safety margin. Locate the smoking area away from any structures.

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