Washington Appellate Court Again Says “Tasered Trooper’s” Tort Action Not Barred by Exclusive Remedy Defense

Did Intermediate Appellate Court Abide by Supreme Court’s Remand Instructions?

In a case that has ricocheted from a Washington state trial court to an intermediate appellate court and from that appellate court to the Supreme Court of Washington and back again, the state’s Division Two Court of Appeals has again said that there are issues of material fact as to whether the Washington State Police (WSP) had actual knowledge that an injury was certain to occur when, during a training exercise, a WSP trooper was shot with a Taser and as to whether the WSP willfully disregarded that knowledge [Michelbrink v. Washington St. Patrol, 2015 Wash. App. LEXIS 2912 (Nov. 24, 2015)]. Following remand, as it had been instructed by the Supreme Court, the appellate court indicated that it had narrowly interpreted the state’s deliberate intention exception to the exclusive remedy provisions of the state’s workers’ compensation act. A close examination of the case, however, casts doubt on the appellate court’s claim.

Background

The trooper sued his employer, the WSP, in tort following an incident in which he and other troopers were tasered during training. Medical tests performed after the incident tended to show that the electric shock caused a compression fracture in the trooper’s back. The WSP defended the case, contending that the trooper’s exclusive remedy was pursuant to the state’s workers’ compensation law. The superior court denied the WSP’s motion for summary judgment, finding that the trooper’s allegations fell within the deliberate intention exception. The WSP moved the appellate court for discretionary interlocutory review and it was granted. The appellate court affirmed the denial of summary judgment, holding that the deliberate intention exception was to be liberally interpreted and that the trooper had raised factual issues as to whether WSP had actual knowledge that an injury was certain to occur from being shot by a Taser and as to whether WSP willfully disregarded that knowledge [see Michelbrink v. Wash. State Patrol, 181 Wn.2d 1028, 339 P.3d 635 (2014) (Michelbrink I”)].

Walston v. Boeing Co.

The WSP petitioned the state’s Supreme Court for review. After that petition was filed, the Court decided Walston v. Boeing Co., 181 Wn.2d 391, 334 P.3d 519 (2014), in which the Court held, in relevant part, that the deliberate intention exception was to be narrowly interpreted. The Walston Court also reiterated that within the context of workers’ compensation cases, an act that has substantial certainty of producing injury is insufficient to meet the deliberate intention exception. In light of Walston, the Supreme Court remanded Michelbrink I for reconsideration under the appropriate standard.

Division Two’s Narrow Interpretation of Deliberate Intention Exception

Initially the appellate court acknowledged that under Walston, every element of the deliberate intention exception had to be interpreted narrowly. Construing Walston, the court indicated that a harm must be symptomatic in order to constitute an injury. The court added that neither Walston nor any authority cited by the parties supported the position that symptomatic injuries must reach a particular level of severity before constituting an “injury” under the workers’ compensation laws.

The court added that it was undisputed that the trooper training included the shooting of each trainee with the Taser’s two electrified metal probes. The evidence suggested that the most typical effects of a Taser exposure were “temporary pain, minor skin irritation, temporary blisters, and redness or minor bleeding if the Taser probes punctured the skin.” The court added that interpreting the evidence in the light most favorable to the trooper, an issue of material fact existed as to whether those typical effects were certain to occur from Taser exposure. The court added that while these were relatively minor effects, they were not asymptomatic effects. Citing Wash. Rev. Code Ann. § 51.08.100. the court indicated that each of these injuries constituted “a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom.” The court concluded, therefore, that an issue of material fact existed as to whether WSP had actual knowledge that an injury was certain to occur.

The court added that the WSP need not have had actual knowledge that the trooper’s specific injuries themselves were certain to occur. A tortfeasor takes his victim as it finds him (or her). The court summarized by indicating that It was undisputed that WSP required employees who used a Taser to be shot with a Taser, and an issue of material fact existed as to whether WSP had actual knowledge that muscle seizures, minor wounds, pain, skin irritation, blisters, redness, or bleeding were certain to occur from Taser exposure. WSP’s actions to prevent injury did not address these injuries. Rather, WSP’s actions addressed secondary injuries such as falling or medical complications.

What If the Probes Don’t Puncture the Skin?

As noted above, the court observed that the most typical effects of a Taser exposure were “temporary pain, minor skin irritation, temporary blisters, and redness or minor bleeding”—all of which are symptomatic—“if the Taser probes punctured the skin” [emphasis added]. Semantics aside, can the Division Two Court of Appeals be true to Walston where it’s holding depends on the word “if”? In other words, is it at all clear that injury was certain to occur if the probes did not puncture the skin? Does use of the taser puncture the skin in all cases? Has the taser ever been used in a WSP trooper exercise without resulting in injury? If so, how can the court legitimately say that injury was certain to flow from the employer’s actions? To repeat the Walston rule, an act that has substantial certainty of producing injury is insufficient to meet the deliberate intention exception.

My reading of the Division Two’s opinion leads me to conclude that the court still wants to read a “substantial certainty” sort of rule into the intentional tort exception [see Larson’s Workers’ Compensation Law, § 103.04]. In doing so, it has failed to follow Walston. I could, of course, be wrong. What do you think?

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