410 P.3d 1007
Okla.2016Background
- On June 5, 2008, a Verdigris Valley Electric Cooperative (Employer) crew was installing three underground high‑voltage phase cables from an energized junction box to a transformer at INSERV's facility; the junction box was encircled by a yellow steel barricade about 19 inches from the front of the box.
- The crew included two journeymen and two apprentices; Tiger, an apprentice with limited high‑voltage experience, climbed over the barricade to assist and was fatally electrocuted when he contacted a live phase during connection.
- Employer knew of the barricade (a field engineer had observed it earlier and had warned against barriers), the junction box bore Employer’s warning sticker, and OSHA later cited Employer for two “serious” safety violations.
- Plaintiffs sued Employer alleging Employer was substantially certain that injury or death would result (an intentional tort under Parret) by ordering/allowing the hot work with the barricade in place. INSERV was dismissed.
- The trial court initially denied summary judgment, but later granted Employer summary judgment after discovery; the Court of Civil Appeals affirmed. The Oklahoma Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper on the claim that Employer acted with "substantial certainty" of injury (Parret standard) | Employer’s decisions (leaving energized system, not removing barricade, assigning inexperienced apprentice into confined space) demonstrate that Employer knew injury or death was substantially certain | Employer relied on safety culture, crew training, and argued knowledge deficiencies were not attributable to Employer as substantial certainty of harm | Reversed — material factual disputes remain about Employer’s subjective knowledge and conduct; remanded for trial |
| Whether knowledge of agents (field engineer/foreman) imputes to Employer | Plaintiff: agent observations and on‑site decisions are attributable to Employer and support inference of substantial certainty | Employer: overall safety record and policies, and lack of evidence that Employer had subjective intent or specific knowledge | Court: knowledge of agents while acting within scope is imputed to employer; that strengthens plaintiff’s circumstantial evidence and raises factual issues |
| Whether OSHA citations conclusively establish substantial‑certainty intent | Plaintiff: OSHA serious violations are circumstantial evidence of Employer’s intent | Employer: OSHA citations do not alone prove intentional tort; they are not dispositive | Court: OSHA citations are not conclusive but are admissible circumstantial evidence relevant to intent |
| Whether summary judgment was permissible given conflicting evidence and inferences | Employer: no uncontroverted facts show subjective substantial‑certainty; summary judgment appropriate | Plaintiff: multiple disputed material facts (training, decisions, barricade role) require jury resolution | Court: summary judgment inappropriate where reasonable persons could draw different inferences; triable issues exist |
Key Cases Cited
- Parret v. UNICCO Serv. Co., 127 P.3d 572 (Okla. 2005) (adopts "substantial certainty" standard to except employer conduct from workers' comp exclusive remedy)
- Bailey v. Gulf Ins. Co., 389 F.2d 889 (10th Cir. 1968) (knowledge of an agent within scope is imputed to principal)
- Kirkpatrick v. Chrysler Corp., 920 P.2d 122 (Okla. 1996) (summary judgment reviewed de novo)
- Sperling v. Marler, 963 P.2d 577 (Okla. 1998) (procedure for identifying material facts on summary judgment)
- Bird v. Coleman, 939 P.2d 1123 (Okla. 1997) (if reasonable persons may draw different conclusions summary judgment must be denied)