TIGER v. VERDIGRIS VALLEY ELECTRIC COOPERATIVE, 410 P.3d 1007

Background

On June 5, 2008, Verdigris Valley Electric Cooperative (Employer) crew installed underground service to INSERV; a metal barricade sat about 19 inches from the front of an energized 14,000/24,900V junction box.
The crew worked with the system energized to avoid customer interruption; procedures called for insulated tools, gloves, and, where applicable, parking stands.
Apprentice Jason Tiger (limited high-voltage experience) climbed inside the narrow space between barricade and junction box to help seat a phase connector and contacted a live phase, was electrocuted, and later died.
OSHA issued two “serious” citations for inadequate training and job briefing after finding employees exposed to electrocution while working inside a metal-enclosed barricade.
Plaintiffs (Tiger’s widow and children) sued Employer under Parret v. UNICCO, alleging Employer acted with knowledge that injury or death was substantially certain to result from directing work under those conditions.
The trial court initially denied summary judgment, later granted Employer’s renewed post-discovery summary judgment; Court of Civil Appeals affirmed; Oklahoma Supreme Court granted certiorari and reversed, finding material factual disputes requiring a jury determination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether employer’s conduct met Parret substantial-certainty standard rendering tort claim outside workers’ comp exclusive remedy	Employer knew (or should be inferred to know) that directing work with a metal barricade 19" from an energized junction box, without de-energizing, parking stands, or insulating blanket, made injury/death substantially certain	Employer relied on safety policies, crew training, joint responsibility for safety, and lack of proof that Employer had subjective knowledge of training deficiencies before the accident	Reversed summary judgment; material facts remain in dispute about Employer’s subjective knowledge and conduct — remand for factfinder to decide under Parret standard
Admissibility/weight of OSHA citations as evidence of employer intent	OSHA “serious” violations are circumstantial evidence supporting an inference of substantial certainty	OSHA violations alone do not conclusively establish the employer’s subjective knowledge of substantial certainty	OSHA citations are admissible circumstantial evidence but not conclusive; jury may consider them among other facts
Whether summary judgment standard was properly applied	Plaintiff contends reasonable minds could differ; inferences must be drawn for nonmoving party	Employer argued undisputed facts and safety culture foreclose inference of substantial certainty	Court held de novo review requires viewing evidence most favorably to plaintiff; reasonable persons could draw different conclusions — summary judgment improper

Key Cases Cited

Parret v. UNICCO Serv. Co., 127 P.3d 572 (Okla. 2005) (adopts "substantial certainty" standard to convert employer conduct into intentional tort outside workers' compensation remedy)
Kirkpatrick v. Chrysler Corp., 920 P.2d 122 (Okla. 1996) (de novo standard for appellate review of summary judgment)
Carmichael v. Beller, 914 P.2d 1051 (Okla. 1996) (summary judgment inferences must favor the nonmoving party)
Bird v. Coleman, 939 P.2d 1123 (Okla. 1997) (if reasonable persons may draw different conclusions, summary judgment must be denied)
Bailey v. Gulf Ins. Co., 389 F.2d 889 (10th Cir. 1968) (knowledge of agent within scope of authority imputable to principal)