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Parret v. UNICCO Service Co.6/28/2005
ivalent. I would leave the immunity line where it should be and where it has stood correctly placed - at the demarcation that separates torts in which contributory negligence is a defense from torts in which contributory negligence is not a defense. An employer would enjoy §12 immunity if the tort is in the subclass of those to which contributory negligence may be interposed as a defense. Where the law would not permit a defense of contributory negligence, the immunity would not avail because the harm could not be deemed accidental.
III. SUMMARY
Because I concur only in the text of the court's answer to the second question, I would confine today's opinion to answering that question alone. I dissent from the court's answer to the first question.
I would leave within the §12 immunity all cases in which the tort authorizes the employer's defense of contributory negligence. My view faithfully follows the tradeoff analysis that is the very cornerstone of this court's jurisprudence which provided constitutional approval for the workers' compensation regime.
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