Idaho High Court Does “a 180”: Employees May Sue Employers for Reckless Conduct

Reversing itself (in relevant part), a divided Supreme Court of Idaho cast aside a year-old decision and, after re-argument, adopted what amounts to a reckless standard in so-called “intentional” tort cases filed by injured employees (or their estates) against employers [Gomez v. Crookham Co., 2019 Ida. LEXIS 238 (Dec. 20, 2019), opinion withdrawn, new, consistent opinion substituted, see 166 Idaho 249, 457 P.3d 901 (2020)]. As discussed below, the majority of the Court has now edged Idaho out onto a lonely limb since no other state has adopted a reckless standard for determining whether an employer’s alleged tortious action against the employee is actionable outside the provisions of the respective state Workers’ Compensation Act [see Larson’s Workers’ Compensation Law, § 103.01, et seq.]. The majority cast aside claims that it was engaging in judicial activism, retorting that the legislature remained free to adjust the policy as it sees fit.

Background—Multiple Prior OSHA Violations

According to the allegations of the complaint, the employer, a wholesale seed distributor, determined in 2015 that a new picking table was necessary to sort seeds more efficiently. It entrusted one of its employees to fabricate a new table and the employer had it installed in the company’s “Scancore” room in late 2015. The new picking table’s drive shaft was not fully guarded and did not adhere to required lockout-tagout procedures, even though OSHA had previously cited the employer for violating machine guard safety standards and lockout-tagout protocol with its former picking tables.

Employed for 30 Years

Gomez, who had worked for the employer for 30 years, was assigned to work in the Scancore room on January 20, 2016. Her duties in that room included cleaning the picking table between sorting batches of different varieties of seeds. To clean the picking table, employees used an air wand to blow seeds upward from beneath the table while the machine was operating. During her shift, Gomez was under the picking table attempting to clean it when the table’s exposed drive shaft caught her hair and pulled her into the machine. She died as a result of her injuries. OSHA subsequently investigated the employer and issued “serious” violations to the company because it exposed its employees to the unguarded drive shaft without implementing lockout-tagout procedures.

Trial Court Said All Claims Barred by Exclusive Remedy Rule

The Gomez family sought and received workers’ compensation benefits. Six months after Gomez’ death, her estate also filed a civil action against the employer, setting forth nine separate causes of action, including wrongful death and products liability violations. The district court granted the employer’s motion for summary judgment on all counts, holding that the claims were barred by the exclusive remedy rule of the state’s worker’s compensation law. The trial court held that Idaho’s “unprovoked physical aggression” exception to the exclusive remedy rule [see Idaho Code § 72-209(3)] did not apply, that Gomez was working within the scope of her employment when the accident occurred, and that the estate’s product liability claims failed because the employer was not a manufacturer of the picking table for product liability purposes. The Gomez family appealed.

Supreme Court’s December 2018 Decision

Last December, in Gomez v. Crookham Co., 2018 Ida. LEXIS 218 (Dec. 19, 2018), the Idaho Supreme Court affirmed the trial court. Writing for the Court, Justice Horton (with Chief Justice Burdick, and Justices Brody, Bevan and Stegner concurring), found the trial court properly granted the employer’s motion for summary judgment on all claims since the claims were barred by Idaho Code Ann. §§ 72-209(1) and 72-211. As to the products liability claim, the Court agreed that the employer was not a manufacturer and, therefore, could not be liable on that basis. Subsequent to the Court’s December 2018 decision, the Gomez family sought rehearing before the high court and the Court agreed to rehear the case.

Majority Does “About-Face” As to Exclusivity Issue in December 2019 Decision

Following that rehearing, the majority of the Supreme Court affirmed as to the products liability issue, agreeing as it had one year earlier that the employer could not be liable since it was not a “manufacturer” of the equipment at issue. The majority also again agreed that Gomez was working within the scope of her employment at the time of her fatal injuries. As to the exclusive remedy issue, however, the majority of the Court did an abrupt “about-face.”

[Author’s subsequent note: On February 10, 2020, the Court withdrew its December 20, 2019 opinion and substituted a new one, reported at 166 Idaho 249, 457 P.3d 901 (2020). Except for some apparent minor changes in wording, the February 2020 opinion (along with the concurring and dissenting opinions mentioned herein) is the same as its December 2019 opinion.]

Majority Said Exception to Exclusivity Must Meet “a High Bar”

Justice Moeller, who incidentally was not a member of the Supreme Court at the time of the December 2018 decision—he was sworn in to fill the vacancy caused by the retirement of Justice Horton at the end of 2018—wrote the 2019 majority opinion, to which Chief Justice Burdick and Justice Bevan concurred. Justice Stegner concurred in the result, but not the majority’s reasoning, and Justice Brody, as detailed below, dissented.

Plaintiffs Utilizing Special Exception Must Meet “High Bar”

Writing for the majority, and citing and quoting from Marek v. Hecla, Ltd., 161 Idaho 211, 384 P.3d 975 (2016), Justice Moeller acknowledged that an exception to the exclusive remedy rule contained in Idaho Code § 72-209(3) permitted an employee to pursue a separate civil action against an employer if the employer committed an act of “wilful or unprovoked physical aggression” against the employee. According to the justice, those seeking to assert a claim under the exception must meet “a high bar” [majority opinion p. 17].

Legislature Replaced “And” With “Or”

In analyzing that high bar, Justice Moeller added that in 1969, when the Idaho Legislature sought to revamp the state’s Workers’ Compensation Act, it examined the language of a similar exception contained within the 1963 model code established by the Council of State Governments. The justice observed that the 1969 Legislature utilized that exception, yet with an important modification: It replaced the model code’s “and” between “willful and unprovoked” with “or,” so that an employee might satisfy the exception by proving that the employer committed an act of either willful or unprovoked physical aggression against the employee. According to the justice, that modification provided greater opportunity for employees to meet the exception, and thus, broadened the protection afforded to Idaho’s workers. The justice added, however, that the Legislature had failed to define the terms “wilful,” “unprovoked,” or “physical aggression.”

Sharks in the Aquarium

Since the Court had no specific guidance from the Legislature, Justice Moeller turned to the Court’s decision in Marek [cited above], stressing that there the Court had recognized that physical aggression towards an employee might come in forms other than an outright attack. The justice continued:

To provide an implausible, yet illustrative example, were an aquarium owner to order an unwitting employee to clean a tank swarming with sharks, that would qualify as an act of unprovoked physical aggression by the employer under section 72-209(3) because the employer would surely know that there was a high risk of death or injury to the employee. Germane to this appeal is our attempt in Marek to clarify the meaning of “unprovoked.” There, we stated that to prove an act of unprovoked physical aggression, “the employee must only show the employer actually knew or consciously disregarded knowledge that employee injury would result from the employer’s action.” 161 Idaho at 217, 384 P.3d at 981 (emphasis added by majority). By introducing the phrase “consciously disregarded knowledge” into the analysis, we concluded that the employer did not commit an act of unprovoked physical aggression against its employee because there was “no evidence in the record that would support a finding that [the employer] had actual knowledge” that the employee’s injury would occur. Id. at 219, 384 P.3d at 983 (emphasis added by majority)[Majority opinion pp. 19-20].

“Fleshing Out” Circumstances Under Which Exception Might Be Satisfied

The justice continued:

This appeal presents an opportunity for the Court to flesh out the circumstances under which the consciously disregarded knowledge test might be satisfied. While “consciously disregarded knowledge” has only been a part of our jurisprudence since 2016, we acknowledge that it has proven challenging to apply in practice. In essence, it provides a narrow exception to the exclusive remedy rule in cases not involving either a direct attack by the employer or knowledge that the employee would be harmed by the required work activity when it can be established that the employer consciously disregarded the risk of injury. By using the disjunctive “or” between the two alternatives—“knew or consciously disregarded knowledge”—the court in Marek clearly left open a narrow, yet alternate, pathway to recovery for employees in extreme cases where it would be unreasonable to assume the employer was completely unaware of an obvious and grave risk to an employee’s life and limb. Returning to the shark tank analogy, just as an employer would be liable if it knowingly ordered an unwitting employee into a tank of sharks, it would likewise be liable if it consciously disregarded reports that sharks were in the tank yet ordered its employee into the tank anyway [Majority opinion pp. 20-21].

Did Employer Consciously Disregard Knowledge That Injury Would Occur?

Justice Moeller chronicled some of the evidence presented by the Gomez family, including an expert’s report that concluded it was a “foregone conclusion” that the employer’s conduct would result in an injury [majority opinion p. 22]. In three of the most important sentences in Justice Moeller’s opinion, he said,

While it may be argued that one cannot consciously disregard knowledge that one never possessed, the term “consciously disregard knowledge,” as used in Marek, should be interpreted more broadly than that. Having no actual knowledge of a danger to employees, as opposed to consciously disregarding knowledge of a danger, are not synonymous. The point of the consciously disregarded knowledge exception is to take into account cases where an employer was aware of the danger, but consciously decided to ignore it [majority opinion, p. 22].

According to the justice, employers who turn a blind eye to known dangers remain liable under the exception to the statute because they consciously disregard a known risk. In effect, said the justice, they are attempting to insulate themselves from liability through “feigned ignorance, thereby engaging in a perverse form of plausible deniability—if they claim they ‘saw no evil,’ then there is no evil” [majority opinion, p. 23]. Justice Moeller stressed that the Court’s ruling in Marek had essentially rejected this approach because consciously disregarding knowledge of grave danger can be a very real act of unprovoked physical aggression.

Judicial Activism?

As to the view of dissenting Justice Brody that the majority had engaged in “policy-making“—Justice Moeller said Justice Brody’s words were a “barely veiled accusation of judicial activism” [majority opinion, p. 23]. Justice Moeller stressed that the essence of the majority’s decision merely explained the application of the Court’s prior decision in Marek, a precedent which had stood for more than three years. The justice added that as with the Court’s decision in Marek, the legislature remained free to adjust the policy as it saw fit.

Remand Necessary

The majority closed by indicating that, given the totality of the evidence, which included prior OSHA violations directly related to the picking tables, it had to conclude that the district court erred by failing to consider whether the employer consciously disregarded information suggesting a significant risk to its employees working at or under the picking tables. On that basis, the district court’s decision granting summary judgment to the employer had to be reversed and remanded. On remand, the trial court was directed to apply the proper standard for proving an act of unprovoked physical aggression by determining whether there was a genuine issue of material fact as to whether the employer consciously disregarded knowledge of a serious risk to Mrs. Gomez.

Justice Stegner’s Special Concurrence

Justice Stegner concurred in the result. He would, however, replace the “consciously disregarded knowledge” test announced by the Court in Marek with the “substantial certainty” test that had been adopted in Ohio [see Larson’s Workers’ Compensation Law, § 103.04[2][b]]. The justice also had issues with Justice Brody’s dissent:

I also write because I have concerns with the dissent. The dissent would reverse course on Marek, and afford immunity to employers in instances where there is a substantial certainty that an employee would be killed as a result of the employer’s total disregard of worker safety. It is acknowledged that both before and after [the employer] designed and fabricated the seed sorting table, which caused Mrs. Gomez’s death, it was cited for serious safety violations, directly related to the lack of safety procedures involved in this case. I don’t think a civilized society countenances providing a safe harbor to [the employer] for creating an extraordinarily unsafe workplace that resulted in a horrific death such as Mrs. Gomez’s. This tragedy could have and should have been avoided. Turning the clock back on Marek would allow a recurrence of this type of senseless tragedy in the future.

Justice Brody’s Dissent: Majority Has Adopted a Reckless Standard

Justice Brody argued that “[s]imply put, there is no consciously disregarded knowledge test under Idaho Code section 72-209(3), and the majority in Marek got it wrong when they equated ‘unprovoked physical aggression’ (the language that is used in the statute) with an employer’s conscious disregard of knowledge that injury would occur.

The justice added that in his opinion the majority’s decision in the instant case had compounded the interpretative error that was made in Marek. According to Justice Brody, in its efforts to articulate a workable legal standard, the majority, stating that the Court’s understanding of “aggression” had evolved, had “moved from conscious disregard of knowledge that injury ‘would’ occur (the standard articulated and applied in Marek) to conscious disregard of a ‘significant risk of harm.’

In effect, said the justice, the majority’s interpretation had created a reckless conduct exception to the exclusive remedy rule. Justice Brody argued that such an interpretation went “far beyond the bounds of the plain, usual, and ordinary meaning of the statute at issue.” He added that while it might be that employers who consciously disregard significant risks of harm should be held accountable to employees beyond worker’s compensation benefits, that decision belonged to the Idaho Legislature, not to the Court. The justice summarized:

At the end of the day, the plain language of I.C. section 72-209(3) limits the Gomezes’ recovery to the benefits provided by the worker’s compensation system. I would affirm the district court’s decision.

Justice Brody continued with a spirited analysis of the status of the exclusive remedy rule and the exception being fleshed out by the majority’s decision. He concluded with a lengthy paragraph that prompted Justice Moeller’s “judicial activism” comment noted above:

Tragic events like the death of Mrs. Gomez raise serious issues about our worker’s compensation system. In 1970, about the time that Idaho’s system was being overhauled, Congress created a national commission to conduct a comprehensive study of the states’ worker’s compensation laws. National Comm’n on State Workmen’s Compensation Laws, Report of the National Commission on State Workmen’s Compensation Laws (1972). The final report of that commission concluded that one of the major objectives of a modern worker’s compensation system is encouragement of safety. Id. at 15. Does Idaho’s system adequately encourage safety? Does it reward employers that make a serious investment in safety programs and professionally engineered equipment? Should it do so? How? Should it immunize employers who do not? Do employers who operate in compliance with safety laws subsidize the employers who choose not to? If an injured employee is authorized to sue outside the worker’s compensation system, will the employers’ commercial liability policies be available to them for compensation or will their claims be excluded or somehow limited? Overall, do injured employees fare better under a worker’s compensation system or our tort system? All of these are important questions, but they are not the province of the Court. Our role is to interpret and apply the laws the Idaho Legislature passes in accordance with the usual, plain, and ordinary meaning of the words that are used. To do otherwise, enables the Court to function as a policy-making body of five [opinion, p. 42-44].

Commentary

Call it judicial activism or not—justices seem to have thin skin these days when anyone, even another justice, hints that they might have overstepped their bounds—but there appears to be no question that with this decision, the Supreme Court of Idaho has staked out a position unlike that of any other state. The majority opinion clearly holds that an injured Idaho employee (or the employee’s estate) has two options in maneuvering around the exclusive remedy provisions of the state Workers’ Compensation Act. First, the employee may show that the employer has committed a “wilful” act. That exception exists in all 50 states. Second, he or she may show that the employee engaged in reckless conduct. In as much as the second choice will always be easier to prove than the first, the result of the majority’s decision is to jettison completely the “old,” traditional intentional tort exception to exclusivity and replace it with a reckless standard.

Surveying the nation, there are now essentially four tests utilized to handle so-called “intentional” tort claims.

1. Approximately four-fifths of American jurisdictions continue to cling to the “classic” rule: “Intent means intent.” In order to sue the employer, the employee must show that the employer actually intended to harm the employee [see Larson, § 103.03].
2. About a dozen states (the exact number depends upon how you count some minor textual variations in the state rule) follow what one may call either the “substantially certain” or the “substantial certainty” rule [Larson, § 103.04].
3. As to death cases only, Texas allows the survivors of a deceased employee to recover exemplary damages upon a showing that the employer engaged in gross negligence.
4. Now, In Idaho, the employee or estate may recover in tort upon a showing of reckless conduct on the part of the employer.

Disregarding What You Don’t Know!

As noted above, at one point Justice Moeller writes that “it may be argued that one cannot consciously disregard knowledge that one never possessed” [majority opinion, p. 22]. There are some of us who would strenuously “argue” that it is actually a truism that one cannot consciously disregard something that one does not know; that’s what “consciously” means. Justice Moeller’s argument renders the word “consciously” meaningless.

Note that I’m not arguing that the employer here lacked knowledge of the dangers involved in having an unguarded drive shaft. Whether the employer had such knowledge would be an issue of fact and the majority carefully avoids stepping into the shoes of the fact-finder. What the majority does instead is find that whether the employer actually had such knowledge is irrelevant for purposes of the exclusivity exception in spite of the “consciously disregard” language found in the Court’s earlier Marek decision, upon which the majority relies.

Majority “Consciously Disregards” What the Court Knows

What the majority does here is what it accuses the employer in the case to have done: It “consciously disregards” what it knows, that (a) the exception-to-exclusivity statute [Idaho Code § 72-209(3)] contains no language authorizing the use of the “consciously disregard knowledge” standard promulgated in Marek , and (b) Marek itself must be stretched to the point of breaking in order to allow the sort of reckless standard established by the majority in this Gomez decision.

The Shark Tank Analogy

For my money, I find the majority’s “implausible, yet illustrative example” of the “sharks in the aquarium” illustration lacking. By that I mean how does an analogy that is by its own admission “implausible” help us understand how the standard will be used in actual workplace settings? The world, including Idaho, is filled with instances of hazardous employment. Construction work, for example, involves significant risk of injury. What “knowledge,” about which an Idaho employer may be unaware, will a court now say has been “consciously” disregarded so as to make the employer liable in tort, even after it has provided workers’ compensation benefits to the injured employee (receiving a credit, of course, for the prior payment)?

In his special concurring opinion, Justice Stegner argues for the adoption of a “substantial certainty” test for these sorts of cases. While I’m not a fan of that standard—courts adopting it have come up with some “implausible” rationales of their own—it doesn’t go nearly as far as the Idaho majority has ventured here in Gomez.

Has the Court “Consciously” Introduced Fault into the Scenario?

I recognize the desire to reach out to the survivors in a case with horrific injuries such as the fatal incident in this case. Courts should, however, be careful to keep a retaining wall between the law of workers’ compensation and the law of torts. As my mentor, Dr. Arthur Larson, wrote many years ago:

Almost every major error that can be observed in the development of compensation law, whether judicial or legislative, can be traced either to the importation of tort ideas or, less frequently, to the assumption that the right to compensation resembles the right to the proceeds of a personal insurance policy [Larson, § 1.02].

Fault lives within the land of tort law. It is not supposed to be a concern within the workers’ compensation setting. In Idaho, employer fault, in the form of culpable recklessness, now is. As Justice Moeller correctly says, Idaho’s Legislature remains free to adjust the policy as it sees fit.