Nebraska: High Court Affirms Dismissal of Intentional Tort Action Filed Against Employer That Violated Multiple OSHA Regulations; Action Barred by Exclusive Remedy Defense

The Supreme Court of Nebraska recently affirmed a decision of a county district court that had dismissed a tort action filed against the defendant-employer by the estate of an employee who died of asphyxiation after being engulfed in grain inside a large grain bin, holding that the action was barred by the exclusive remedy provisions of the state’s Workers’ Compensation Act (the Act) in spite of the fact that the defendant acknowledged it had wilfully violated a number of OSHA regulations that resulted in the employee’s death [Estate of Teague v. Crossroads Coop. Ass’n, 286 Neb. 1, 2013 Neb. LEXIS 90 (May 31, 2013)].

Quoting Larson’s Workers’ Compensation Law, § 103.03, the high court stated that it was the “almost unanimous rule” that any intentional conduct exception to the workers’ compensation exclusivity rule could not be “stretched to include accidental injuries caused by the gross, wanton, wil[l]ful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury.” The court acknowledged that although about a dozen other states had an exception for employer’s actions that were “substantially certain” to cause injury, Nebraska had not allowed such a “substantially certain” exception to exclusivity, again quoting Larson (§ 103.04[4]) as to the court’s rationale.  

The employee (“Teague”) was asked by his supervisor to enter a grain bin and shovel grain into the center of the bin’s conical base in order to facilitate removal of grain from the bin. Teague died of asphyxiation after being engulfed in grain. The grain bin was approximately 58 feet tall and 21 1/2 feet in diameter. The depth of the grain in the bin was high enough to present an engulfment hazard and was higher on the sides than in the middle, such that it could slide onto employees.

OSHA assessed civil penalties against the employer. In addition, the employer pleaded guilty to the criminal charge of willfully violating OSHA regulations by knowingly permitting an employee to enter a grain bin in violation of safety standards requiring that an auger system be turned off, locked out, and tagged while an employee is in a grain bin.

The personal representative of Teague’s estate filed a civil action against the employer for wrongful death and assault and battery, and for a declaratory judgment that either the Act did not apply or, alternatively, that it was unconstitutional on its face and as applied. Relying upon Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591 (1989), wherein the state supreme court held that the employer’s knowing misrepresentation concerning the hazards of the job did not take the employer’s conduct outside the exclusivity of the Act, the district court granted the employer’s motion to dismiss for failure to state a claim. The district court found that the facts alleged in the Estate’s petition, even if true, would not constitute “‘willful and unprovoked physical aggression’” by an employee, officer, or director of the employer.

The Estate contended on appeal that because it alleged intentional tortuous conduct, Teague’s death was not an “accident” covered by the exclusive jurisdiction of the Workers’ Compensation Court and alternatively, that the Act was unconstitutional insofar as it distinguished between employed intentional tort victims and unemployed intentional tort victims.

The state high court disagreed with the Estate, indicating that because the employers and employees—and employed and unemployed tort victims—were not similarly situated, it was rational and proper for the Legislature to treat those categories differently under the Act. The court indicated the Legislature made a rational distinction between intentional tort victims who were employees and intentional tort victims who were not, that workers’ compensation law reflected a policy choice that employers should bear the costs of employees’ work-related injuries, because employers were in the best position to avoid the risk of loss by improving workplace safety. Such policy did not, however, support the idea that employers should bear the cost of injuries incurred outside of employment. The Act was simply not designed to govern the rights of nonemployees. As such, employees and non-employees, whether victims of intentional torts or of simple negligence, were not similarly situated. The Legislature did not act arbitrarily or unreasonably in treating these distinct categories differently.

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