In what will likely be one of the last cases to be heard under Oklahoma’s court-crafted version of the “substantially certain” rule [see Larson’s Workers’ Compensation Law, § 103.04[e]] that allows an injured employee to sue the employer for an intentional tort where “intentional” includes not only those instances in which the employer actually desired to bring about the employee’s injuries, but also those in which the employer had knowledge that injury was “substantially certain” to result from the employer’s conduct, the Supreme Court of Oklahoma, in a divided decision, recently held that an employee had stated a cause of action where he alleged that the employer had spread highly toxic fly ash, a by-product of the company’s operations, on roads and parking lots adjacent to the company’s facilities, and that his on-the-job exposure to such by-products caused him pain, impairment and lost income [Jordan v. Western Farmers Elec. Co., 2012 OK 94, 2012 Okla. LEXIS 97 (Nov. 13, 2012)].
Reversing a decision by the Court of Civil Appeals which in turn had affirmed a trial court’s determination that the plaintiff had failed to allege sufficient facts to remove the claim from the exclusive remedy provisions of the state’s Workers’ Compensation Act, the high court held that taking the employee’s allegations as true, one could have inferred that the employer knew that disposal of the fly ash in the manner described by the employee was likely to cause injury.
On August 27, 2010, the Oklahoma legislature’s amendment to the state’s Workers’ Compensation Act explicitly overruled the court’s prior holding in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572, by repealing the employee’s ability to bring an intentional tort claim under the substantially certain standard [see 85 Okla. Stat. § 302(B).