Moore v. Environmental Construction Corp.

arrest, conduct or the the officers’ search accurately as any- be described

cannot exploratory other an search for

thing than Appellant was ar-

incriminating evidence. in violation of his Fourth Amend-

rested protections because his warrantless

ment probable on than

arrest was based less adjudge retrospectively

cause. We cannot simply illegal

this search lawful eventually found. The

contraband was Amendment

protections of Fourth well as the

must extend to offenders as abiding.

law

STUMBO, J., joins dissenting

opinion. MOORE,

John G. Sr. and Sharon Representatives of the Es-

Personal Moore, Jr., Appellants,

tate of John G.

ENVIRONMENTAL CONSTRUCTION

CORPORATION, Appellee.

No. 2001-SC-0227-DG.

Supreme Kentucky. Court of

Aug. Denied

Rehearing Nov.

intention” when the in walls of the trench in, which he was burying caved causing him by “compression his death asphyxia.” motion, Upon Environmental’s the trial court Granting entered an Order JNOV and stated that from the evidence presented at only trial “the reasoned anal- ysis Moore, is that John G. Jr. did not die as a result of the deliberate intention of the Defendant or its employees.” Upon review, the Court of Appeals, “[hjaving thoroughly analyzed present- the evidence against ed in this matter the standard set 342.610(4) recovery by for KRS and [rele- vant case law] believe[d] trial court Douglas Myers, W. Deatherage, Myers properly entered JNOV.” From a review & Haggard, Hopkinsville, Ap- Counsel for trial proceedings and the evidence pellants, Moore, John G. therein, Sr. and Sharon presented we hold that the trial Moore, Personal Representatives of the court’s of JNOV was appropriate Moore, Estate of John G. Jr. affirm. therefore Sehabell, Busald, Gregory N. Funk & II. BACKGROUND PSC, Florence,

Zevely, Counsel for Ami- Curiae, Kentucky cus Academy of Tri- In April of 1996 Environmental won the Attorneys. al bid оn the contract for a sewer rehabilita- tion project and new sewer in Dawson Evans, A. Frym-

Joe III and Richard L. Springs, Kentucky. The contract contem- ire, Jr., Evans, Frymire, Peyton, Teague & plated days project, for the which Madisonville, Cartwright, Ap- for Counsel digging would involve and laying trenches pellee. town, new sewer throughout lines in- KELLER, cluding work in Justice. residential areas. The Occupational Safety and Health Ad- I. INTRODUCTION (“OSHA”) Regulations ministration as en- Appellants, Moore, John G. Sr. and by Kentucky forced provide that Moore, Sharon Representatives Personal trenches in exceeding depth, five feet em- Moore, of the Estate of John G. appeal Jr. ployers safety pre- must take one of three opinion from an of the Appeals Court of a) prevent sloping cautions to cave-ins: that affirmed the Order Granting Judg- away sides of the trench from the excava- ment Notwithstanding the Verdict b) tion, shoring the walls of the trench (“JNOV”) entered the trial court. c) timbers, hydraulic jacks with in- 30, 1999, September On Hopkins stalling trench box inside the trench in County jury Appellee, determined that En- which employees perform can work.1 their Corporation vironmental Construction leaving headquarters Lexington, Before in (“Environmental”) (“Price”), Randy had caused the death of ten-year super- Price John through Environmental, G. Jr. “deliberate intendent for made a con- 1. 29 C.F.R 1926.652. trial the trench walls were jacks shoring testified decision leave

scious falling Lexington. work or dirt clods Once no cracks and trench box solid with Price used the began Springs, Dawson both not- his son Lewis Sargent out. “cutting where back” method sloping or clay a hard that was the soil was ed that depth. five in the trench exceeded feet in parts in and easier dig hard some to Nevertheless, in the sometime others. July, Price beginning At the of July morning early or afternoon of late help on second crew to with the called in the trench Sargent exited At the re- Lewis pipe laying work. trench and Wilson, John, working; Environ- were Sar- of one of which he and Jr. quest William (“Sar- officers, Sargent Michael in because mental’s son the trench gent replaced his had worked for gent”), previously who John, pipe sewer was over the Jr. bent in experience had Environmental and piece Sargent and it for the next preparing work, joined the and project trеnch in a to a worker trench did like leave along his son Lewis. Price made brought long portion a nine-foot Suddenly, alone. per- Sargent “competent the foreman and onto collapsed trench John the wall on Sar- son” for the second crew based to Moore, Sargent then tried Jr.’s back. gent’s past work for Environmental and hands, with his bare dig nephew his out Sargent’s competent person training certi- him to operator warned but the backhoe July, Sargent At the fication. end the it was about get out of trench because Moore, “nephew”3 hired G. his John Jr. Sаrgent escaped ‍​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​‌​​‍the again. to collapse as an crewmember. additional second the be- second cave-in and crewmembers Sargent began and his the When crew John, attempts Jr. gan out Their digging Road, on Price trench work Fredericks collapsed trench were in vain because that Sargent told he would obtain whatev- him almost wall had buried and suffocated safety Sargent thought er devices neces- instantly. sary job and that no right do ensure recovered, John, body was After Jr.’s injured. Sargent one was Both Price and in it Price the trench filled had in type particular classified the soil in a near a street residential located type trench the most cohesive and the as likely project least a cave-in and area. on the was halted cause deter- Work resumed, no safety precautions mined that needed to days. two Once work Steve deposition be taken. In the that was read Kentucky OSHA in- Rogers (“Rogers”), a trial, jury Sargent stated to investi- spector, was called the site it safe or “[he] [him]self [he] deemed Although Rogers not investi- gate. could and [his] [his] wouldn’t have allowed son filled trench because it had been gate the nephew get or the hole and [him]self in, to fill in the noted that the decision he work.” given trench that was was reasonable Rogers talked to Price (“Wilson”), area. dug residential who

Charles Wilson backhoe, were employees other who work- Road trench with a two Fredericks Moore, stepson person Jr. was of Sar- "Competent capa- who is 3. John G. means one John, however, sister-in-law; gent's identifying existing predictable Jr. haz- ble Sargent Lewis for surroundings, with his son condi- lived ards in the hazardous, com- unsanitary, approximately eight months and Lewis are tiоns which John, Jr. his cousin and dangerous employees, monly referred to and who has author- commonly to him as his Sargent referred prompt take corrective measures.” ization to 1926.650(a). nephew. 29 C.F.R. John, ing day Jr.’s death and issued Although jury’s verdict confirmed the four serious Rogers citations.4 Appellants’ stated that position, judge the trial deter- all his citations were based on facts mined that violations did not relayed Price had himto and he noted that amount to a deliberate intent on part appeared Price forthcoming and truthful. bring Environmental to about the death trial, At Rogers testified that he Moore, saw no of John G. Jr. and entered a JNOV evidence to indicate that Environmental for Appellee.

had a injure deliberate intention to or Mil

John G. Jr. III. ANALYSIS Upon review of trial, the Order Grant At all parties recognized involved ing JNOV, we must examine the trial safety the precautions for trench work and court’s decision under clearly the errone acknowledged injury a risk of or death ous standard.7 That say, is to we must from failure to take the proper precaution- all presented review the evidence to ary the Appellants measures.5 The believe jury and uphold must the trial сourt’s deci that Environmental’s failure to take the if sion “after all the evidence is construed proper precautions a constituted deliberate most favorably winner, to the verdict a son, intention to kill their such that the finding his favor would not be by made exclusivity provisions of the Workers’ a reasonable [person].”8 Compensation Act would not apply: If injury or death results to employee an provided As in Fryman v. Electric “ through the deliberate intention of his Steam Corp,,9 Radiator ‘deliberate inten- employer produce to injury such or tion’ been interpreted [has to that mean] death, the employee or dependents his employer the must have determined to may take under chapter, this or in injure lieu employee an and used some means thereof, have a cause of action end, at law appropriate to that and there must be “ against employer the as if chapter specific intent.”10 ‘The defendant who passed, not been damage for such so acts in the belief or consciousness that the sustained employee, the depen- his causing act is an appreciable risk of harm personal dents or representatives as is may another negligent, be and if the recoverable at law.6 great risk is the may conduct be character- 4. The citations were reporting for not the Bailey, Ky., Crest Coal Co. v. 602 S.W.2d Kentucky accident to the regulatory OSHA (1980). event; agency eight within hours of the for failing provide escape a ladder to 8. First and Farmers Bank Somerset v. trench; for competent per- failure to have a Henderson, 137, (1988); Ky.App., 763 S.W.2d trench; daily inspection son conduct Hillard, Ky.App., Brewer v. taking adequate safety not precautions for (1999); Taylor Kennedy, Ky.App., 700 i.e., a deep, trench over sloping, five feet (1985)(where S.W.2d a motion for shoring installing or a trench box. judgment notwithstanding the verdict should granted not disputed be unless "no issue of exception Sargent, The who stated in upon fact exists which reasonable men could deposition his that at the time he took the differ”). competent person training precautionary no required measures were to be taken in soil A, i.e., Type that was classified as the most Ky., 277 S.W.2d 25 cohesive. 10. Id. at 27. 342.610(4). 6. KRS Tennessee, a inten- wanton, an In where deliberate is not ized reckless or but ”11 to avoid the must also be established tion intentional wrong.’ Compensation exclusivity of Workers’ The States District Court for United Act, employer’s failure evidence an Kentucky recently Eastern District of en- history safety regulations and follow exclusivity countered safety regulations13 per- disregarding Kentucky mitting dangerous working conditions14 provision of the Com- Workers’ has been found insufficient establish Act pensation and determined without in- employer that an had actual harm employers acted to evidence Many other states jure employee. an employees, employers evidence exclusivity which Workers’ exposed to employees knew that would be intention- abrogated is when but chemicals that caused cancer did death, injury have concluded ally causes risks, take measures to reduce or alleviate regulations or oth- that violations of OSHA cause give was insufficient to rise to tort do not rise to the standards alone er under intention of action deliberate to wrong necessary level of an intentional of exclusivity provision to the ex- Compensation overcomе the Workers’ Kentucky’s Workers’ clusivity mere knowl- Act.12 provisions15 Mania, Inc., Cunningham by v. 11. Water 721 15. Estate Richard Ameri Williamson v. of 372, F.Supp.2d (Fla.Dist.Ct.App.1998)(citing Wrecking Corp., So.2d 373 134 252 can Co., (D.Conn.2001) (where injuries Fisher 498 to v. Shenandoah General Constr. fatal demoli 882, (Fla.1986)(quoting 884 cutting So.2d WILLIAM who steel tion worker was beams KEETON, & intentionally by employers, PROSSER W. PAGE PROSSER were caused not (5th & may KEETON ON THE LAWOF TORTS 36 though have been even OSHA violations ed.1984))). negligent, negligent, grossly and described as part employers); even willful actions on of Co., Indus., Inc., v. 149 Ariz. 718 Cooper Allen Southwest Salt v. 99 Blanton (where (Ct.App.1986) gross negli (E.D.Ky.2000). P.2d 1021 F.Supp.2d 797 maintaining workplace gencе hazardous in safety failing in to make on and modifications Co., v. Alman Constr. 857 S.W.2d Gonzales not intent to harvester did show deliberate (where (Tenn.App.1993) employee, 42 who injured by injury employee was inflict on who injured using explosives during was ex- while Contractors, harvester); v. Serna Statewide job, alleged employer cavation that to failed Inc., Ariz.App. (Ct.App. 6 429 P.2d 504 safety during applicable regulations follow 1967) (where employer’s conduct did not work, employee’s employer history had of to amount to willful misconduct sufficient disregarding safety regulations concerning Comрen the action out of the Workers’ take explosives, personnel use as- and that all employer disregarded foreman, when re sation Act signed project, including to were warnings safety inspectors peated by state re explosives). use untrained in trench, twenty-five deep garding foot knew occurred, previous had in cave-in Inc., Conagra, v. Mize event of a cave- structed decedents that (where personal representa- (Tenn.App.1987) they try to to inside a sewer were crawl employees explosion man- tives of killed in at they dug рipe in ditch wait until were and ufacturing plant were not entitled to main- occurrence, out, at the of the fatal time wrongful against employer, tain death action tried but failed to reach the the decedents notwithstanding explosion resulted from Branford, 63 pipe); Conn. Ramos Town grain inadequate dust and accumulation of (2001) (where App. 778 A.2d absent knowing by employer’s vi- ventilation caused alleged that town’s and marshal’s evidence safety regulations, knowingly since olation of safety regulations were commit dangerous violations of permitting to conditions di and deliberate intent regulations ted with conscious safety exist was and violation inflicting injury, purpose of action to rected to not sufficient conduct establish intentional brought against injury exception Compensa- town and town’s fire marshal to Workers’ Act). firefighter, by the of deceased volunteer tion estate edge and appreciation deep comply the risk involved feet Environmental failed to with Kentucky regulations regard- in an act is not same as the OSHA to by ing safety precautions for trench work injury.16 cause the Mere carelessness or trenсh, sufficiently sloping shoring negligence, gross, wanton or however reck- walls, installing the trench trench box. less, does not such intent.17 establish to provide proper Environmental failed pro From a review of the trial means of from the trench escape and failed ceedings evidence presented report Jr.’s John G. death therein, we that the determine trial court’s Kentucky officials within OSHA the re- appropriate, of JNOV was as “it is quired eight hours. Environmental also duty of the court to set a jury aside competent person failed to have a perform verdict imposes liability upon sym which daily inspections of the site.19 Environ- considerations, pathetic where fault is not injury mental knew that death could shown.”18 result from a failure take the proper trial, The presented Nevertheless, evidence taken in precautions. Environmen- light most favorable to the Appellants, tal’s regulations violation of OSHA shows that the trench acknowledgement possible since was over five of the eonse- follow, alleging substantially that town and its fire was certain marshal violat since ed various standards barred worker failed show that inten exclusivity provision Compensa of Workers' fall; tionally scaffolding caused mere Act); Selling Corp., tion Greene v. Metals knowledge appreciation and of risk involved 40, (1984) (where Conn.App. A.2d 484 478 injury); in act is not as intent to cause same allegations and of willful ‍​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​‌​​‍wanton violations of Newark, City DeLane v. ex rel. DeLane 343 of Safety Occupational federal and Health Act 225, N.J.Super. (Ct.App.Div. 778 A.2d 511 counterparts and its state were insufficient to 2001) (where employees’ city's of violations support widow’s common law action for hazards, governing laws failure to eleсtrical husband); wrongful death of her Hatcher v. firefighters regarding proximity law inform of Co., 250, Conn.Supp. Bullard 39 477 A.2d wires, voltage high limitations to and viola (1984) (where allegation 1035 there was no statutes, reckless, tions of albeit did not employer that intended or that conduct was wrong” necessary rise to “intentional to over decedent, injure allegations calculated to that exclusivity provisions come of Workers’ Com intentionally, employer wantonly willfully and statutes). pensation regulations resulting violated OSHA in death of decedent were insufficient allow widow’s 716, Boyer, Mich.App. сommon law tort action to overcome 16. exclu 157 403 N.W.2d Act); remedy sive of Workers’ Forming, Subileau v. 664 Southern So.2d 11 (where (Fla.Dist.Ct.App.1995) though even Co., McCray Ky., v. H. Elliott 419 Davis employer past injuries knew of to workers (1967); Brierly S.W.2d 542 v. Alusuisse Flexi worksites, employer from falls from elevated Inc., (6th Packaging, ble 184 F.3d 527 Cir. by had been OSHA cited several times for 1999); Co., Mfg. Jenkins v. Carman 79 Or. provide guardrails, employer failure to and 448, Meats, (1916); 155 P. 703 Winterroth v. site, guardrails failed to at erect construction Inc., (1973). Wash.App. 10 516 P.2d 522 employer's did not actions render death of intentional); in fall Boyer construction worker Cash, Ky., 332 Brothers v. S.W.2d 655 Cо., Mich.App. v. Louisville Ladder (1987), denied, appeal 403 N.W.2d 210 (1987) (where employer’s Mich. 905 failure to review, purposes 19. For this we assume of worker, provide safety who cable was in Sargent competent person. that not a

jured scaffolding when on which he was However, Rogers testified that had Steve he fell, within was not intentional-tort Sargent’s competent person been shown certi- exception notwithstanding allegation that em fication, willful, he would have withdrawn the ployer’s provide corre- failure to cable was intentional, knowledge sponding injury and that OSHA with violation. cases eliminat in each of these deliberate defendants does amount a quences G. Jr.’s deaths were produce intention to John that the possibility ed the death.20 in justified the caused accident of actions approach. Absent ferred the in

Appellants’ reliance on inferred nature, approach cannot be the same approach in is tent homicide cases mis under KRS used infer deliberate intent in such placed the actions of defendants 342.610(4). action homicide cases involve intentional directed toward the In thе case of victim. argument that rejecting plaintiffs In the Commonwealth,21 Ap

Parker v. on which satisfy re the “constructive intent” would the pellants rely, actions the defendant necessary for “wilful miscon quirement step to his month-old involved one blow statute, Arizona’s duct” under his son’s head with fist and other blows to in Serna v. Statewide Contrac court by striking against head a the child’s tors, Inc.,26 required statute stated There, object.22 in fixed the defendant’s “deliberate” intention as there be a tent could be inferred because of the direct some kind of intention distinguished ‍​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​‌​​‍from action took and the еxtent of the vic he presumed negligence. from Affirm gross injuries. tim’s Had blows summary in favor ing judgment they child’s head been an accident would defendant, the court concluded there not have so numerous In been or severe. had been a failure establish that Commonwealth,23 Hudson v. the defendant with the intent re acted death, strangled girlfriend to his bound quired by the statute.27 gagged body her and left her car. In Stopher trunk v. Commonw it’s “It must be remembered that

ealth,24 the defendant a sheriffs killed depravity employer’s not the con shooting him in deputy by the face tested, Commonwealth,25 being duct that is the narrow but Smith the defendant issue the acciden acquaintance point shot an intentional versus range. blank injury.”28 The intentional tal quality precise and vicious actions of the There- adopt 20.Although stantially we do to result an accident that not the substantial certain test, certainty employee. intentional-harm an would kill remedy to the exclusive of Workers’ Compensation requires (1997). actual Ky., harm 21. 952 S.W.2d 209 grounded theory and intent on the of substan certainty bring tial would not a claim within 22. at 212. Id. exception, it should be noted that even test, (1998). under Ky., Environmental’s actions do 23. 979 S.W.2d 106 Peay not v. constitute deliberate intention. Co., 91, (2001). Ky., U.S. Silica 313 S.C. 437 S.E.2d 64 787 24. Co., (1993). Dunleavy In v. Yates Constr. 114 196, (1994) (1987). N.C.App. Ky., 442 S.E.2d 53 where an 737 S.W.2d 683 employee partial was killed from a cave-in of 12, (1967). trench, Ariz.App. appellate 429 P.2d 504 an excavated court de summaty judg termined that the trial court’s Contractors, Inc., 6 Ariz. Serna v. Statewide ment in favor the defendant construction although App. 429 P.2d 504 company proper company was disregarded safety deeper rules trenches Indus., Inc., Elkins 28. Mandolidis v. employee than five feet and allowed the (1978) hat, n. 3 disregard W.Va. 246 S.E.2d work without hard because a J., ‍​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​‌​​‍dissenting), superseded by (Neely, statute as sаfety negligent was at and inad rules most vertent, by Handley Corp., recognized Union Carbide thus not rise level of did to the (4th Cir.1986). something intentionally doing 804 F.2d 265 sub “[vjiolation fore, a safety of a statute damages favor of Appellants, Sharon [ajlone does not inju- constitute intentional Moore, Sr., and John wrongful for the ry,” and neither does “failure son, to follow Moore, death of their John Jr. The recommended procedures or to take stan- majority held that “the trial court’s precautions.”29 dard say that a “[T]o appropriate, JNOV was ‘it duty is the safety statute was only violated is to sаy of the court jury to set aside a verdict that an has failed to use reason- imposes liability which upon sympathetic able care.”30 considerations, where fault is ”1 shown.’ I Appellants pre- believe that In the judice, case sub Appellee’s sented sympathy; more than their actions involved a failure to follow evidence was jury sufficient for the to rea- regulations. Although Environmental was sonably Appellee find that acted with de- cited for serious Kentucky OSHA viola- liberate bring intent to about the death of tions, from the presented evidence to the thе decedent. jury, viewed in a light most favorable to the Appellants, is there no indication that presented The evidence at trial revealed Environmental’s failure was done with the deliberate part Appellee actions on the deliberate produce intention to John in forcing its employees, including the de- Moore, more, Jr.’s death. Without Envi- ceased Mr. manifestly to work in a ronmental’s violation of Kentucky OSHA unsafe Appellee environment. purposeful- regulations does not amount to the deliber- ly did not provide safe conditions ate neсessary intention pursue remedies for the digging of the trench. It refused outside of the Workers’ Compensation Act. to install a trench or adequately slope box the sides of Kentucky the trench. OSHA

IV. CONCLUSION require standards safety precautions when reasons, For the above we affirm the trenches are over five deep, feet and the Court of Appeals. trench in question was at least seven feet

deep. These actions by Appellee were COOPER, JOHNSTONE and fully intentional and supported jury WINTERSHEIMER, JJ., concur. finding liability against Environmental.

LAMBERT, C.J., trial, by separate management pеrsonnel dissents At of Envi- opinion STUMBO, in which Appellee GRAVES and ronmental admitted that knew of JJ., join. dangers, conditions, the po- hazardous and tential consequences associated plac- with

LAMBERT, Justice, Chief dissenting. ing Mr. Moore in an unsafe trench. The I respectfully testimony dissent from also majority Appellee the revealed that opinion that affirms the trial knew that cave-in likely court’s of the trench was judgment of the notwithstanding anyone and that in the ver- the trench at the time (“JNOV”) dict in favor of Appellee, Envi- of the cave-in seriously injured would be ronmental Construction Corрoration. Furthermore, The even killed as a result. tes- trial court jury overturned timony the award of Appellee disclosed that had knowl- Mandolidis, (Neely, 246 S.E.2d at Corp., 1. Moore v. Environmental Construction J., 17-18, Ky., dissenting). 2004 WL 1906172, *3, (2004) (majority opinion), *5 Co., quoting Boyer v. Louisville Ladder Id. at 923. Mich.App. 403 N.W.2d 210 ex- having not in an Kentucky is alone specific greatly risk factors that edge of 1) remedy provision ception to the exclusive likelihood of a cave-in: an increased the 2) and Act line, of gas from an the Workers’ exposed vibrations of 3) recovery injuries as a result adjacent allowing and unstable soil. highway, by the actions risks and intentional or deliberate with all of these known Even a jurisdictions use other injury, employer. death or serious Some probabilities of majority certainty in test. The the decedent to work substantial Appellee ordered Dunleavy on v. Yates opinion also showed that relies the trench. The evidence that Envi- report proposition Constr. Co.4for the Appellee failed to the decedent’s sub- manner, did not meet the timely though in a even ronmental’s actions death certainty of stantial test. knew that the death was the result its actions. Dunleavy, In Carolina the North Court motion, summary judgment of a the held that

Upon Appeals review JNOV to granted by in the trial court the defen- court must “consider the evidence a plaintiff the light party opposing proper, most favorable the dants was because give every produce motion failed to sufficient party the evidence finding support exception can be drawn a under reasonable inference that Rowland,5 Dunleavy, In Additionally, the mo- from the record.”2 Woodson in all deep five feet granted tion should not be “unless there is trench did exceed reason, complete proof a on a areas of the trench. For absence material action, In disputed company supply issue in the or if did not a trench box. no issue soil, upon spite appeared of fact which to be stable [per- exists reasonable of what partial employ- could differ.”3 to there a cave-in and an sons] It is erroneous was distinguished declare that the death of Moore ee killed. The court Mr. was omissions, by Appellee’s caused these from the situation ‍​​‌​​​‌‌​​‌​‌​​​​​‌‌‌‌​‌​​‌‌‌​‌‌​​‌‌‌‌‌‌​​​​​‌​​‍in Woodson facts high the decedent’s death direct court of North Carolina was the result where on Appellee’s recognized intentional act a narrow based deliberate and ordering death-probable egregious him to work in facts. The facts included sever- Moreover, citations, required jury conditions. was enti- al showed work trench, Appellee’s deep tled to infer intent and showed upon based fourteen-foot following provide any safety precau- actions Its incident. failure failure report filling Supreme the decedent’s tions. The Court North Car- death recently ex- subsequent the trench to the removal of olina described Woodson in the body, “applies only Appellee impeded prevented ception as one that fully egregious the inci- most cases of miscon- inspectors investigating from The duct” where “there is uncontroverted dent. evidence and allowable infer- mis- employer’s were evidence of the intentional ences sufficient create material where is sub- Appellants met conduct and such misconduct issue fact as whether to the stantially employee’s certain to lead prоving their burden of deliberate intent injury or death.”6 to cause death. serious Hillard, 330, (1991). 1, 222 Ky.App., 5. 407 S.E.2d 2. Brewer v. 15 S.W.3d 9 329 N.C. (1999). Neck, v. Scotland 597 6. Whitaker Town of 415, Taylor Kennedy, Ky.App., v. 668, 665, (2003). N.C. 552 S.E.2d 357 (1985). 416 196, N.C.App. 53 4. 114 S.E.2d employer But,

We hold that when an injury employees. inten- this has Court tionally engages in misconduct knowing effectively employers immunized from pay- it substantially is certain to cause seri- of damages despite ment egregious behav- injury ous employees death to and an by ior a draconian construction of the stat- employee injured by is or killed analyzing ute. Instead of this case as a misconduct, employee, per- or the damages civil action for allowing representative sonal of the estate case inferences, jury proper majori- to draw death, may pursue a civil action ty Appellants has held to a standard that against employer. Such misconduct appropriate would be for a prose- homicide tort, is tantamount to an intentional cution. civil actions based thereon are not herein, For the reasons stated I would by barred exclusivity provisions reverse the trial court’s of JNOV the Act. jury and reinstate the verdict. STUMBO, JJ., join GRAVES and Johnson, This discussion in Pleasant [v. dissenting opinion. (1985)] 312 N.C. S.E.2d makes clear that an actual injury

cause necessary is element

of an generally, intentional tort nor is it

required for intentional tort claims

based on injuries.7 work-related present

The facts of the case are dis-

turbingly similar to those Woodson v. Rowland,8 Here the employer knew that Eugene THOMPSON, William depth required trench safety precau- Appellant, cave-in, tions due the likelihood of but deliberately did not make Kentucky, COMMONWEALTH of

available or use a trench box. Rather the Appellee. employer left all safety equipment behind taking instead of it to the work site. As in 1998-SC-0277-MR, Nos. case, employee Woodson the deceased 2001-SC-0869-MR. was forced to manifestly work under un- Further, safe appears conditions. it from Supreme Kentucky. Court of testimony and other evidence that Aug. substantially certain that a serious injury or death would occur Rehearing result of Denied Nov.

the actions Environmental. 342.610(4) recovery

KRS allows outside remedy

of the exclusive provision of the

Workers’ Act upon a show-

ing of intent. legislature The has not elim- liability

inated employers egre- when act

giously and cause the death or serious Woodson, 340-42, Supra. 407 S.E.2d 222.

Case Details

Case Name: Moore v. Environmental Construction Corp.

Court Name: Kentucky Supreme Court

Date Published: Aug 26, 2004

Citation: 147 S.W.3d 13

Docket Number: 2001-SC-0227-DG

Court Abbreviation: Ky.