US: 2010 Statutory Amendment Spelled “Certain” Demise of Oklahoma’s “Substantially Certain” Rule in Intentional Injury Actions Against Employers

An important exception to the exclusive remedy rule relates to intentional injury inflicted by the employer on an employee. Several legal theories have been advanced to support the exception. The best is that the employer will not be heard to allege that the injury was “accidental,” and, therefore, within the coverage of workers’ compensation, when the employer intentionally committed the act [see Larson’s Workers’ Compensation Law, § 103.01]. The common-law liability of the employer cannot, in the dominant majority of jurisdictions, be stretched to include work-related injuries caused by the gross, wanton, reckless, culpable, or malicious negligence or other misconduct of the employer, short of a conscious and deliberate intent directed to the purpose of inflicting an injury [see Larson, § 103.03].

About a dozen states, however, have adopted the so-called “substantially certain” rule [Larson, § 103.04]. Borrowing from the tort world, those jurisdictions have determined that intent extends not only to those consequences that are desired, but also to those that the actor believes are substantially certain to follow from what he or she does.

Last week, a federal court, construing a 2010 amendment to 85 Okla. Stat. § 302, that removed Oklahoma from the “substantially certain” column, dismissed a civil action filed by the personal representative of a 20-year-old employee who sustained fatal injuries when he fell through a skylight after he had been dispatched by his employer during a blizzard to perform work on HVAC equipment on the roof of a customer. In Estes v. Airco Serv., Inc., 2012 U.S. Dist. LEXIS 72134 (N.D. Okla., May 24, 2012), the court held that plaintiff’s allegations that the employer directed the young worker to service the equipment in blizzard conditions, during a FEMA-declared state emergency, on a roof where the worker would not be able to see the location of skylights, and where on an earlier occasion, under less dangerous circumstances, another employee at the facility had fallen through a skylight, was insufficient to state a cause of action against the employer for intentional injury. An additional allegation that the employer knew or should have known that the skylights would be concealed by snowdrifts and that they would be more fragile than usual, due to the weight of the heavy snow, was also insufficient to state a cause of action for intentional tort against the employer.  

Background

The personal representative, the employee’s mother, initially filed the civil action in Tulsa County District Court against the employer (an Oklahoma company) and PACCAR (a Delaware corporation with its principal place of business in Washington), the owner of the warehouse where the fatal injury occurred. PACCAR removed the case to federal court on the basis of diversity jurisdiction. In its Notice of Removal, PACCAR alleged the employer, the sole diverse defendant, had been fraudulently joined. Subsequently, the employer filed its Motion to Dismiss and the personal representative filed a Motion to Remand. As the district court observed, a defendant can prove fraudulent joinder by either showing (1) that plaintiff’s jurisdictional allegations are fraudulent and made in bad faith; or (2) that plaintiff has no possibility of recovery against the non-diverse defendant.

PACCAR claimed that the personal representative had no possibility of recovery against the employer because the Oklahoma Workers’ Compensation Act (OWCA), as amended in 2010, required plaintiff to allege the injury to her son was the result of “willful, deliberate, specific intent of the employer to cause injury.” This, PACCAR contended, the personal representative could not do.

District Court’s Analysis

The court initially observed that under OWCA, the liability imposed on employers for work-related injury or death was exclusive and in place of all other liability of the employer except in the case of an intentional tort or where the employer had failed to secure the payment of compensation for the injured employee. Until 2010, the statute contained no language defining the word “intentional.”

The District Court then noted that in Parret v. Unicco Serv. Co., 127 P.3d 572 (Okla. 2005), the Supreme Court of Oklahoma supplied the meaning of “intentional,” adopting the “substantial certainty” standard and that the Legislature, in 2010, jettisoned “substantial certainty” as follows:

B. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from the employer’s conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court.

85 Okla. Stat. § 302.

The District Court indicated that in as much as the “substantial certainty” standard had been eliminated, it remained for the personal representative to allege that the injury was the result of “willful, deliberate, specific intent of the employer to cause [the] injury” [citing an unpublished decision, Berry v. Norris Sucker Rods, No. 10-CV–321-GKF-TLW, 2011 WL 3734213 (N.D. Okla. Aug. 24, 2011)].

The personal representative contended that while the “substantial certainty” standard had been eliminated, since the new standard was untested in Oklahoma courts, the facts in the case did not permit a conclusive determination that she had no possible cause of action against the employer. She argued that she might be able to establish the employer’s willful intent through circumstantial evidence.

The District Court indicated that the personal representative’s allegations–even if they were supplemented by others proposed by her–did not support a claim of “willful, deliberate, specific intent” to cause the injury or death of the personal representative’s son. Nor was the personal representative aided by the fact that the employer had been cited by OSHA. Even before the 2010 amendment, OSHA violations had been found to be insufficient in Oklahoma to support an intentional injury claim. The District Court continued:

Plaintiff has neither pled nor suggested she can plead facts supporting a claim that Airco specifically intended the death of her son. Therefore, amendment would be futile. Plaintiff’s joinder of Airco in this lawsuit was improper and does not defeat PACCAR’s right to remove the action to federal court based on diversity jurisdiction.

Accordingly, the District Court denied plaintiff’s Motion to Remand. Applying the same analysis, the court also said plaintiff’s claim against the employer was barred.

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