Like mushrooms, intentional tort lawsuits over workplace injuries survive legislation to eradicate them and crop up in unexpected states with historically strong workers compensation employer immunity.
Witness the recent case of Theresa Birklid v. The Boeing Company in Washington state. Never in 70 years had that state's Supreme Court allowed a workplace injury to trigger a successful tort case against the employer; only intended physical assaults by co-workers led to civil liability beyond the exclusive remedy of workers' compensation benefits. Employees, even when injured by employers' gross negligence of removing guards (without intending to assault or hurt a specific employee), were shut out from seeking civil injury tort case compensation against their employers.
Washington has always been a "majority state" refusing to allow worksite injuries to be compensated beyond workers' compensation benefits. But in Boeing, the Washington Supreme Court allowed a civil claim to go to the jury where the facts showed:
- That 14 employees complained that the company ignored their concerns about exposure to hazardous chemicals;
- A supervisor warned his employer (Boeing) in 1987 that employees working with a resin containing formaldehyde could suffer health problems as production increased;
- Reportedly, Boeing management denied the supervisor's request for improved ventilation-apparently for economic reasons; and
- The workers became disabled from the illnesses predicted by the supervisor-rashes, nausea, headaches and dizziness after exposure to the resin and other chemicals.
The court adopted a new test of liability redefining the term "intentional" injury exception to mean that the employer must have had and willfully disregarded knowledge that an injury was certain to occur.
The state court in concentrating this tort exception on the "willful knowledge and disregard of that knowledge" factor, refused to follow the Ohio, South Dakota, Michigan, Louisiana, North Carolina, West Virginia and Oregon broader, more objective, test of an "injury substantially certain to occur."
Nine states now allow employees to sue employers for intentional tort injuries and collect workers compensation benefits at the same time (the above eight plus California for punch press injuries under its special, more limited intentional tort statute). Experts for injured employees in these states frequently testify now with a new catchphrase stating that the workplace condition was an "inevitable injury" waiting to happen.
Ohio's Second Attempt to Limit Intentional Tort
Plaintiff attorneys scrambled to file all the intentional tort claims of injured employee clients before November 1 of last year. Why? Because that's when Ohio's second reform legislation to reign in these cases took effect. Here's what the new statute contains.
- Imposing a much higher burden of proof upon injured employees, raising the required proof from a mere "preponderance of evidence" (51 percent) to the much tougher "clear and convincing" evidence of deliberate injury;
- Making pre-trial defense summary judgments easier; and
- Changing the tort basis from injury "substantially certain to occur" to a tougher threshold of "the employer deliberately and intentionally injures," causes an occupational disease of, or the death of an employee.
Intentional Tort Case Shows Importance of History Devoid of Prior Accidents or Citations
Although the Ohio Fourth Appellate Court found that the employer would be viewed as committing gross negligence or even recklessness, it dismissed a claim of intentional tort primarily because of the employer's clean record on that machine: No prior accidents or OSHA guarding citations.
In this Ison v. James W. Smith Lumber Co., Inc. case, a lumber facility employee had operated a four-wheel vehicle known as a skidder, which was used to drag cut timber from one area to another by use of cables. Prior to his accident, he had operated such skidders for his employer for more than a year. It was common knowledge according to the evidence in the case, that the emergency brake on the skidder operated by the plaintiff when he was injured did not work.
In the few weeks prior to the accident, another member of the plaintiff 's crew operated the skidder that was observed to roll backward approximately 6 in. to 8 in. at a time when it was parked on a hill with its blade down and the emergency brake on.
The plaintiff was injured when he was pulling logs with the skidder and after he had decided to stop the skidder near the top of a hill. There had been no accident or injury to any of the defendant's employees involving the skidder either prior to or following the plaintiff's accident. On the occasion of the plaintiff 's accident, the skidder rolled back 4 ft. and hit him. The plaintiff claimed that although he knew the skidder was unsafe prior to his accident, he did not expect it to roll back as far as it did.
There was no evidence in the Ison v. James W. Smith Lumber Co. case that there had been any previous accidents or citations regarding the skidder. The court found no employer tort liability.
If you would like a copy of the Boeing case or Ohio's new law, please contact my office.