Vermont High Court Again Refuses to Utilize “Substantial Certainty” Exception for Intentional Injury Cases

Reiterating its decision in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam), in which the Supreme Court of Vermont held that nothing short of a specific intent to injure falls outside the scope of the state’s Workers’ Compensation Act, the Court affirmed a trial court’s decision to grant an employer and co-employees summary judgment (on exclusive remedy grounds) in an intentional tort action filed against them by a roofing employee who sustained severe injuries when he fell from a roof [Martel v. Connor Contr., 2018 VT 107, 2018 VT 107 (Oct. 12, 2018)]. The Court flirted with, but specifically refused to adopt the “substantial certainty” exception to the rule adopted by the majority of American jurisdictions that “intent means intent” [see Larson’s Workers’ Compensation Law, § 103.03, hereinafter “Larson”].


Plaintiff was part of a four-person crew employed by Connor Contracting to perform roof repair work at a health center. While working on the project, plaintiff and the other members of the roofing crew used a personal-fall-arrest system (PFAS)—safety equipment provided by Connor Contracting and required by the company’s safety program rules, the federal Occupational Safety and Health Administration, and the Vermont Occupational Safety and Health Administration (VOSHA). On the day the repair work was due to be finished, plaintiff and two other members of the original work crew remained at the site, completing the final work on the soffit of the building’s main roof. Defendant Clark, the worksite foreman, was not on site.

While the work was being completed, plaintiff fell from the roof. He was not wearing a PFAS at the time he fell. The parties disputed whether a complete PFAS system was still at the project site on that day and available for plaintiff’s use. Plaintiff alleged that Connor Contracting had moved the “D ring” component of the PFAS to a different worksite the day before. More specifically, he alleged that defendant Clark removed the D ring from the site under the direction of defendant Stephen Connor. Plaintiff alleges that without the D ring apparatus, he was left with only a harness and lanyard at the site and no way to attach the harness to an anchor point.

Plaintiff sought and received workers’ compensation benefits, but filed a tort action against the employer and three co-employees on the theory that the employer had acted with substantial certainty of causing plaintiff injury or death when it removed parts of the PFAS from the worksite, and against the individual defendants on a coemployee-personal-liability theory, based on the same alleged removal of required safety equipment. The trial court granted defendants summary judgment on both claims, deciding that workers’ compensation provided plaintiff’s sole remedy for the injuries he sustained and, accordingly, that plaintiff could not pursue an alternate remedy against either the employer or the individual defendants on the facts alleged.

Were Plaintiff’s Injuries Accidental?

Upon appeal to the Supreme Court of Vermont, Judge Carroll stressed an important point that is often overlooked by attorneys on both sides of these “intentional tort” cases—plaintiff’s claim against Connor Contracting depended on whether his injuries could be said to have occurred “accidentally.” If they occurred accidentally, then the Workers’ Compensation Act barred an alternate remedy. The reason intentional tort claims are not barred by the exclusive remedy provisions of a state’s Workers’ Compensation Act is that the injuries are intentional, not accidental [see Larson, § 103.01].

Kittel is Controlling

Reviewing the relevant judicial precedent, the Court observed that in Kittell, the plaintiff alleged that he was injured after his employer had him operate a saw, without any training or experience, from which the employer had removed all safety equipment, and that this constituted “wanton and wilful acts and omissions” that should permit recovery beyond workers’ compensation. Quoting Larson [current § 103.03], the Kittell Court held that “[n]othing short of a specific intent to injure falls outside the scope of the [Workers’ Compensation] Act.” Because Kittell alleged wilful and wanton action—not action taken with specific intent to injure—he could not pursue an alternate, common-law remedy in place of workers’ compensation.

A subsequent case, Mead v. Western Slate, Inc., 2004 VT 11, 176 Vt. 274, 848 A.2d 257, presented essentially the same issue as Kittell. There, a quarry employee injured in a rock fall at his worksite collected workers’ compensation benefits, but also filed a personal injury action against his employer, alleging that evidence of a recent rock fall at the same location should have prompted the employer to stop operations at that location. The trial court instructed the jury that in order to find for the employee, the jury must conclude that he had presented sufficient evidence to prove that his employer “had the ‘specific intent to injure him,” but that such intent could be established in one of two ways: that the defendants either “had the purpose or desire to cause him injury” or that although the defendants lacked such purpose or desire they knew “to a substantial certainty” that their actions would bring about his injury. Thus, while the broader issue in Mead was like that in Kittell, the narrow question before the Court was whether the trial court’s instructions to the jury were correct—that intent to injure could be proved where an employer had knowledge of the substantial certainty of injury.

Court Did Not Address “Substantial Certainty” Issue in Mead

In the instant case, the Court observed that it had not answered the narrow question posed in Mead. Instead, the Court there explained that the evidence presented in support of the employee’s claim was insufficient to satisfy either intent to injure or substantial certainty. The Court added that it would need to modify the holding in Kittell to permit an injured employee to seek a remedy other than workers’ compensation where the employer, although having no intent to injure, knew that injury to the employee was substantially certain to occur. It would not do so.

Kittell Remains the Vermont Standard

Kittell remains the standard in Vermont, and specific intent under Kittell is required to prove that an injury that would otherwise be compensable through workers’ compensation has not occurred accidentally and the employee may, therefore, pursue an alternate remedy. The court stressed that intent to injure under Kittell is a high bar—it reaches only those instances where an employer deliberately causes an employee an injury.

The Court concluded that even taking the facts in the light most favorable to plaintiff and assuming, therefore, that Connor Contracting rendered the PFAS useless by removing the D ring and preventing plaintiff from attaching a harness to an anchor point, the record did not include facts permitting the inference that Connor Contracting deliberately intended to harm plaintiff.

Judge Robinson concurred in the mandate only. Judge Robinson would have preferred the Court not reiterate the Kittell standard since, according to the Judge’s argument, the plaintiff had failed under both Kittell and the substantial certainty exception. Why decide more than the Court had to decide?

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