*1 572 today’s not based on
ble and commercial However, may have merit. realities because record, agreement there is no in the I see no reason to the trial advise court as to the
“proper procedures” under these facts.
v. COMPANY, UNICCO SERVICE a Dela Corporation, Bridgestone/Fire ware stone, Inc., Dayton Tire, an Ohio d/b/a
Corporation, Defendants. 99,883.
No. Supreme Court of Oklahoma. 28,
June
12,
Denying Rehearing Sept.
Order
contract.];
agreement
568,
enforceable
Corp.,
305,
Fonest v. Veri
140 Wash.2d
Software
Communications, Inc.,
1007,
(2000)
805
zon
A.2d
1009
312
shrink-wrap
[Terms of
license were
(D.C.App.2002)
contract”.];
part
[Notice of forum
"layered
RealNetworks,
selection clause
In Re
sufficient.];
click-wrap agreement
Inc.,
(N.D.I11.2000)
2000 WL
3
[Licens-
Bischoff
DirecTV, Inc.,
F.Supp.2d
180
ing agreement
held.];
required
up-
arbitration
(C.D.Cal.2002)
Network, L.L.C.,
[Arbitration clause
Caspi
in customer
Microsoft
agreement
service
which did
N.J.Super.
not involve the sale
732 A.2d
[On-
goods
enforceable.];
was valid
Equip
1-A
subscription
line
generally,
valid.]. See
Kevin W.
Icode, Inc.,
Grierson, Annot.,
ment Co. v.
2003 WL
Enforceability
"Clickwrap”
(Mass.App.Div.2003)
agree
[End
"Shrinkwrap”
user software
Agreements
Common in Com-
valid.];
Software,
Corp.,
Hardware,
ment
Moore v.
puter
tions,
and Internet Transac-
Microsoft
A.D.2d
N.Y.S.2d
[End-
opinion
John S. James Buchan, Haskins, Nellis, Atkinson, Craig Gladd, Holeman, Tul- Phipps, Brittingham & Oklahoma; Jr., sa, Stallings, Thorne and G. Offices, Blanchard, OK, Stallings Law for Plaintiff. Mills, Margaret Myers, B. K.
Robert Firm, Defendant, City, for Mills Oklahoma Company. UNICCO Service Maloan, Felty, T. Ro- Michael C. Michael Price, Foliart, Huff, Ottaway Bot- byn G. & tom, OK; Al- City, Oklahoma Linda G. Alexander, exander, Niemeyer, Austin & P.C., OK, Phillips, City, Defen- Oklahoma for dant, Bridgestone/Firestone, Inc.
COLBERT, J.
death
a worker
The electrocution
in an action
the District Court
resulted
That
District
Oklahoma.
Western
pursuant
questions
court has certified two
Ques-
Uniform Certification
the Revised
§§
tit.
1601-
of Law
Stat.
tions
Okla.
(2001):
neces-
is the standard of intent
What
sary
claim
for an
protection
to fall outside
of the Oklahoma
“true intentional
Act? Is the standard the
test,
in-
requiring
specific
deliberate
tort”
injury, or
the standard the
tent
cause
is
test[?] Davis
“substantial
Gas, Inc., Natural
CMS Continental
OK
termining principal or
three-
third tier of the
status under the
Clark,
Bradley
adopted in
tiered test
n.
at 6
OK
prohibiting employees
all of
working
n.
based
the facilities
cies
on
hirer,
including
energized
owned
those owned
equipment, the evidence is contest-
countries,
other states
or whether
regarding
ed
whether the decedent and
and/or
improper
private
to consider
hirer’s
employees
required
UNICCO
were
to work
plants outside of the state of Oklahoma
emergency light system
on
while it was
*3
determining whether the hirer was actual-
“hot,”
off,
turning
electricity
or without
ly engaged in the contract work at the
knowing
employees
unable to
were
de-
of
time
the accident?
energize
system
the 227 volt electrical
death
substantially
to occur.
certain
response,
adopts
In
this Court
the “substan-
parties disagree
whether
UNICCO and
tial
standard and holds that
status,
Bridgestone’s
statutory
conduct rose
determining
level of
an
intentional
conduct sufficient to maintain an
Oklahoma court should consider
those
tort,
action
notwithstanding
facilities located within the
of
exclusive
State
Okla-
remedy provision
homa.
of Oklahoma’s Workers’
Compensation Act.
FACTS
¶ 6
disputed
pertinent
Also
are fact issues
¶
1604(A)(2)
2 Pursuant
to section
title
Bridgestone
a
determination
has
the federal court
submitted “[t]he
statutory
a
principal employer
of UN-
question[s], showing
relevant to
ful-
facts
Compen-
under the
ICCO workers
Workers’
ly
controversy
nature of the
out which
Act, including
being
sation
whether the work
question[s]
arose.”
Those facts
re-
performed by
non-specialized
decedent was
peated here verbatim.
necessary
integral
Bridge-
and was
¶3
Parret,
July
On
Glenn
an
operation of
plant.
stone’s
its tire
In its
employee of
Company
UNICCO Service
plants
America,
other
Bridgestone
North
(UNICCO),
replacing
was electrocuted while
performs
equipment
maintenance on its
lights
Dayton
emergency
at the
Tire Plant
employees
own
its
and does
hire
outside
Bridgestone/Firestone,
owned
defendant
contractors like UNICCO for
work.
such
(Bridgestone)
City,
Inc.
in Oklahoma
Okla-
injuries
homa. He died as a result of his
two
QUESTION 1
widow,
days
plaintiff Gwendolyn
later and his
TORT
INTENTIONAL
EXCEPTION TO
Parret,
Kay
received workers’
WORKERS’ COMPENSATION
Bridgestone
death benefits.
is a tire manu-
EXCLUSIVITY
plants
facturer and
distributor
Canada,
States,
Mexico,
United
and Costa
¶ 7 Section 11 of the
Compensa-
UNICCO,
independent
Rica and hired
(2001),
§§
Okla.
tit.
Stat.
contractor,
provide
range
wide
main-
prescribes employer liability “for the disabili-
plant.
tenance
services at
Oklahoma tire
ty
employee
or death
resulting
of an
from an
employee
accidental
sustained
working
4 While the decedent was
on the
arising out of and in the
of employ-
course
emergency lights,
approached
he was
an-
ment,
regard
without
to fault.” Section 12
employee,
UNICCO
who warned him
liability
makes that
place
“exclusive and
lights
they
not to work on the
while
were
all other
employer.”
energized
“hot” or
him that oth-
advised
however,
long recognized,
Court has
that in
employees
er UNICCO
had
to do
refused
some eases “an
who
been wil-
they
work
because
felt was unsafe. The
fully injured by
employer [may]
his
ha[ve] a
responded
decedent
that he
do
damages.”
common law action for
Roberts v.
perform
work he was asked to
and would be
(Okla.1962).
Barclay, 369 P.2d
careful
working
lights.
when
on “hot”
5 Fact disputes exist as to
level
involving
8 Oklahoma decisions
the ex-
understanding
electricity
decedent’s
ception
Harrington
were
reviewed
Cer-
Inc.,
experience
working
and his
Systems,
on electrical
APP
OK CIV
tified
circuits, controls,
lights. Although
both
an intentional tort
Keuchel,
In
stances that a reasonable man would know, know, or have reason that such Negligence slight C. Gross —want likely conduct would be to result in sub- diligence.1 care and stantial harm to another. *5 II. Acts Resulting Willful in Intended or Graham, 847 362. P.2d at Graham noted Harm Unintended ‘gross’ ‘ordinary’ negligence and “[w]hile that A. and Willful Wanton Conduct degree, and ‘negligence’ differ ‘willful and 1. Unreasonable under circum- misconduct’ wanton differ kind.” Id. stances and Thus, comparative fault Oklahoma remains negligence and not to confined willful and 2. High probability of serious harm wanton misconduct or intentional miscon- B. Intentional Conduct (“[W]hile ordinary Id. at 363 negli- duct. Desire cause plaintiff may of gence be used Knowledge that such against gross negligence, may defense not substantially certain to result. against any considered as a be defense form conduct willful of found to and be wanton or This formulation two levels of “willful acts intentional.”). that result in intended or harm” unintended specific is also found areas of tort law. Jury The Oklahoma Uniform Instruc- tion, which was derived the Graham ¶ 16 The definition of the area of decision, explains: infliction of emotional distress reflects this The conduct of [Defendant] willful and dichotomy. intentionally “[Defendant] aware, wanton if was either [Defendant] caused if emotional distress to [Plaintiff] [he/ care, did that there was a substantial she/it] desired to cause such distress knew unnecessary and that risk [his/her/its] con- that such substantially distress was certain duct would cause serious to others. to result from [his/her/its] conduct.” OUJI In order for the conduct to be willful and (civil) A roughly No. 20.2. lower standard wanton, it must have been unreasonable equivalent to that “willful and wanton” is circumstances, under the and also there also defined “[Defen- instruction. probability must have high been a that the recklessly dant] caused emotional distress conduct would cause serious harm to an- [Plaintiff] if knew [he/she/it] there was a person. probability substantial that emotional dis- Jury Oklahoma Uniform Instructions tress to [Plaintiff] would result from [his/her/ (OUJI)(civil), goes conduct, No. 9.17. The instruction deliberately its] dis- [he/she/it] provides: 1. Section 5 great of title 25 diligence; "There are three consists in the care want degrees negligence, namely, slight, ordinary ordinary negligence ordinary in the want of care gross. diligence; gross negligence The latter includes the former.” in the want provides: "Slight slight diligence.” Section of title 25 care and Thus, is intentional Similarly, Id. an actor’s conduct probability.”2 Id. regarded that desire to cause when the actor applicable to the tort of intent definition or when the consequences of act actor “[De- a contract states: of interference consequences substantially if knows [he/she were intentional actions fendant's act. certain to result from the [Plain- to interfere either desired /it] policy requires compelling is whether some Party], or [he/ with [third contract tiff's ap- a different definition of “intent” substantially ac- certain his she/it] was exception plied to tort with the contract.” interfere tions would remedy pro- (civil) 24.2. No. OUJI vision. defining intent re- statements These flect fact CONSIDERATIONS POLICY liability is con- intent with which [t]he will to the text look intent, necessarily a hostile cerned is not underlying any to do harm. Rather it or a desire policies, purposes and to the of workers’ bring result which will an intent to about applying pro- compensation generally way in a of another invade the interests Act. The balance of interests visions sanction. that the law will not pri- employer and is the between retaining
mary reason asserted in favor of specific for de- “deliberate intent” standard Intent, however, than desire broader An termining employer Illinois inter- intent. It physical results. must bring about “[a]dopt- appellate court feared that mediate consequences to those extend not substantial-certainty ing the standard would desired, but also to those which which are this careful because disturb balance substantially believes are certain the actor distinguish difficulty employing it to be- from what he does. to follow injury.” and nonaccidental tween accidental *6 Co., Ill.App.3d 211 Copass Illinois Power omitted). (footnotes Prosser, 8,§ at 31 205, 155 Ill.Dec. 569 N.E.2d defining are mir- These statements (1991). policies underly- No the discussion of (Second) in of Torts. rored the Restatement “spe- compensation or of how a ing workers’ throughout ‘intent’ is used the “The word policies intent” furthers those cific standard ... the actor to denote that Restatement opinion. in It is appears the essential act, consequences of his or desires to cause lay into discussion and this Court delve consequences the are that he believes it to rest. substantially certain to result from it.” (1965). (Second) of Torts 8A Restatement plans compensation were 19 Workers’ (b) explains: further to that section Comment enacted, eventually and beginning states, problem. response to a In- fifty all consequences All which actor desires the pro- intended, epidemic had the is dustrial accidents reached bring to about are as word not, portions employer’s while the common Intent is used in this Restatement. contributory negligence, assump- however, consequences limited to defenses risk, servant doctrine If and fellow the actor knows that the tion are desired. .of certain, recovery injured generally prevented by an substantially consequences are or act, most households certain, worker. At a time when to result from his and still breadwinner, a worker’s ahead, only law if he treated had one goes family destitute. re- could leave an entire produce in fact desired he had designed compensation sult. meaning treated as explains: three terms have been 2. As Professor Prosser coming thing, oat at the or at least as same ["quasi words "wil- intent”] to ful,” "wanton," area grouped legal They have been to- "reckless,” same exit. customarily negligence, aggravated sentence, gether form sometimes, as an single applied; and degree differing quality than in rather Although made to efforts have been three. them, ordinary practice lack of care. distinguish all such distinc- (footnote Prosser, omitted). consistently ignored, been tions have and passed consideration, policy It “was for the 22 Another avoid destitution. injured safety, that of special workplace benefit of The and re work[ers]. been objective mains an Legislature important the benefits of of workers’ intended the act compensation. argue Few would injured that mere work[ers] shall flow to the and their neglect employee safety should not come living dependents, order afford them a exclusively purview within the of workers’ prevent becoming public them from compensation. time, At Wilkinson, same most charges.” Corbin v. 175 Okla. agree that an in specific Workers’ com tent beyond scope to cause providing wage a mechanism for pensation is But, compensation. workers’ as one treatise injured and medical care workers benefits notes: spreading the cost these benefits through Cope Reed Tool insurance. Co. The case difficult lies where between: (Tex.1985). lin, The S.W.2d employer ... [is] not motivated passed price on in the premium cost is employees, certainly desire to harm but employer’s product or service. risk tak[es] calculated with their lives safety perhaps all the tak[es] —and ¶20 compensation To facilitate workers’ greater employer risk because the knows objectives, bargain” an “industrial occur, injury inevitably that when does employee imposed. gave up The cost will be less because of right bring a common law ac- remedy compensation provi- and limited employer and in return re- sions of the workers’ act. guaranteed automatic medical and ceived 197, § 7 Causes of Action 2d 2 at 204. This wage gave up benefits. concurs in observation of Mich- law defenses received common reduced igan Supreme problem “The Court. Thus, liability. exposure to under section 11 appears true tort test that it “[ejvery the Workers’ Act injure allows employers to kill and even em- ... pay ... shall ... ployees compensa- and suffer disability for the of an death long tion damages so as the did not arising out of and in the course of employ- specifically intend to hurt worker.” section, regard ment without to fault.” That Beauchamp v. Dow Chem. 427 Mich. however, exceptions also enumerates certain 398 N.W.2d 893 (1986)(adopting the to the Act based on an willful standard). “substantial The con- another, injury to self failure to use clusion of *7 Supreme the North Carolina Court or guard protection against furnished acci- succinctly the today’s states rationale behind (3) dent, abuse, (4) or horseplay. substance holding. certainty “The substantial standard purposes ¶21 satisfies Act’s providing statutory exceptions These to work- competing trade-offs to interests balanc- and compensation coverage ers’ for an ing interests, serving these while aas deter- any willful misconduct be must factored into rent to wrongdoing promot- intentional and balancing employer of interests between ing Woodson, safety workplace.” in the employee. legislative adjustments These to Today, joins S.E.2d at 229. Oklahoma those aspect compensation, the no-fault of workers’ jurisdictions rejected proposi- which have employer, require which favor the that a less specific that the to harm is re- stringent “specific standard than intent” be quired employer’s for an conduct to be ac- applied determining whether an tionable in tort. may opposed damages, recover to bene- fits, employer’s as a result of the intentional THE PARAMETERS OF STANDARD misconduct. certainty The substantial stan- proper emphasiz- dard strikes the balance adopting 23 In certainty” the “substantial employees’ ing protection standard, interest from mindful that “[i]n employer maintaining test, misconduct while applying em- certainty the substantial some ployers’ reckless, fixed but intentional, courts have confused workplace injuries. misconduct, negligent and even therefore employer’s Nothing knowledge short of the and acci- line between intentional blurred certainty” injury of the “substantial will injuries.” Beauchamp, 898 N.W.2d dental prevent injured effort to such worker’s claim from the In determined remove the confusion, clearly remedy provision artic- standard must be the Workers’ parameters Compensation allowing defined. thus and its the worker ulated proceed in to district court. ¶24 employer’s In order for tort, the amount to an intentional ¶26 to conduct allegations of intentional Mere bring to employer must have desired conduct will not circumvent the Workers’ acted the worker’s about allege The worker must Act. injury was substan knowledge such “plausibly that the facts which demonstrate” employer’s from the tially certain to result under employer’s conduct was intentional stan part second Under the conduct. Ham, “substantial standard. dard, employer must have intended tort at 95. “In terms of intentional N.W.2d knowledge injury act caused then, allega the üse of the word ‘intent’ substantially certain that the change can tions not a ‘is talisman merely whether The issue is not follow. allegations into colorable claims occur, substantially but certain CBS, Inc., Mingachosv. Conn. 491 A.2d it was knew substan (1985)(quoting Keating v. Shell employer’s sub tially certain to occur. The (5th Cir.1980)). em. 610 F.2d Ch substantial cer jective appreciation of the pronouncement is not intended In tainty injury must be demonstrated. exception expand tort the narrow intentional cases, however, necessary to it will be most compensation exclusivity.3 Rath- to workers’ subjective real demonstrate er, apply this Court’s refusal to constitutes Thus, an by circumstantial evidence. ization of intent a worker’s stricter standard may employer’s knowledge be inferred tort than the claim employer’s conduct and all surround standard of intent which would Restatement ing circumstances. By applied any other intentional tort. be satisfy cer 1125 To “substantial adopting certainty” standard the “substantial standard, knowledge and tainty” “more than compensation, this Court furthers workers’ necessary.” Id. As of the risk is appreciation objective of work- explains: Professor Prosser balancing place safety the interests of while knowledge appreciation of mere [T]he time, employee. At the same risk, certainty, is not short substantial principle that general it furthers the equivalent of intent. defendant injuries compensated and anti- are to be in the who acts belief consciousness discouraged.” to be See social behavior is harm causing appreciable he is risk of Prosser, § 1 at 3. negligent, if the may another great risk is conduct be character- his QUESTION TWO wanton, but it is not ized as reckless *8 wrong. an classified as question 28 The second certified Thus, aspect the Prosser, test employer must to this Court concerns § 8 at 32. the act, employer statutory status acted, determining the for have or have failed to Act. Un substantially cer- under the Workers’ knowledge that 11(B)(1) tain, principal “the merely likely, em- der section the to occur. The not in be hable the manner employer than shall also knowledge of more ployer must have risk,” specified for due all “high hereinafter probabili- more than “foreseeable indepen- employees, employees of the direct ty,” and more than “substantial likelihood.” Larson, allowing quite conservative about "sub- have been a strident critic of the 3. Professor standard, exclusivity. exceptions "[i]t is concedes that Most stantial true that in most litigation these kinds of instances, predicted the flood of to limit their use to most have been careful occurred, mainly Larson, because the egregious 103.04[4]. at cases.” courts, dangers, undoubtedly conscious of the contractors, subcontractors, facilities, Bridgestone’s or other including dent those in general employees engaged in the other states nations. result, As a under section business.” question is The resolved an exam- immunity principal is afforded to em- “[t]ort policy ination of the behind this Court’s compensation lia- ployers who bear workers’ adoption test. adopted of the This Court Carr, bility Armstrong 11.” v. under section Berry Bradley test because it favored APP 77 P.3d 601. A 2003 OK CIV “Louisiana’s more restrictive approach” to employer secondarily is principal who liable “application of the double-coverage doc- has been termed Bradley, trine.” 804 P.2d at n. 10. 428 & “statutory principal The employer.” employ- In Berry, Supreme Louisiana ex- Court compensation liability er’s workers’ and the plained applica- liberal expansive that a immunity corresponding tort have been the statutory had status subject litigation. Murphy of much See origi- a doctrine “transform[ed] which was Homes, Inc., Mobile 1980 OK nally Chickasha designed provide secondary [work- (describing evolution compensation] protection injured ers’ to an Oklahoma). employee this area of grants into one immu- [tort] nity principals regardless they of whether Clark, Bradley 29 In 1990 OK 804 actually pay compensation.” at 488 So.2d adopted P.2d Court three-tiered (citation omitted). Ben-y The fur- court statutory test to determine whether em- result, explained ther principals “[a]s ployment relationship exists. The test was preferred have been elevated to a po- more Supreme crafted Louisiana Court injured employee’s sition than an immediate Service, Inc., Berry v. Holston Well 488 employer quid pro quo existing that the (La.1986). The first So.2d tier between the and his immediate asks whether contract spe- test work is (i.e. compensation regardless of non-specialized. cialized or If the work is immunity) fault for tort does not be- exist non-specialized, tier asks the second whether tween the employee principal.” and the Id. part contract work principal’s Thus, purpose Berry stated of the test trade, business, occupation. Id. at 938. adoption and of this Court’s test in “The third analysis and last tier the ... Bradley, application was to restrict of statu- calls the court to determine whether tory employer status.4 principal engaged, hirer was at the time ¶ Nevertheless, Bridgestone asks trade, injury, business occu- that, Court to in applying hold the third tier
pation of the Bradley, hired contractor.” status, statutory test for P.2d at 428 n. The question certified federal court look at should its enter- entire concerns tier of the third the test. prise, including its activities in other states so, however, and nations. doTo ex- ¶ Bridgestone manufactures and distrib- pand application of statutory employer utes toes. It has facilities in the United status in Bradley’s contravention of stated States, Mexico, Canada, and Costa Rica. purpose. pur- holds that for the UNICCO, Bridgestone independent hired pose of the tier of adopted third the test contractor, provide range a wide of main- Bradley, only principal’s activities its plant tenance services at tire Oklahoma facilities within the State of Oklahoma are to City. federal be considered. Bridgestone engaged in the trade, business, occupation of UNICCO at policy Other considerations lead time of the worker’s electrocution. The same policy conclusion. No is served *9 whether, court federal asks this Court providing preferential large treatment to cor- making determination, that only Bridge- porations widely with diversified activities in plant stone’s tire in Oklahoma is to be consid- various while a employer nations local en- ered or proper gaged whether it is to only consider in the same business has its test, however, Legislature rejected The Berry Louisiana vigor the sion. The retains Okla- its by amending "statutory employer” provi- test Armstrong, its homa. See 77 P.3d n. 2. at 602 ¶ that This Court has held when an to deter- in Oklahoma consider activities compen- status. Public statutory injured employee received workers’ mining local and multinational policy requires benefits, an sation those benefits constituted equally applying the employers be treated precluded remedy that a concur- Compensation provisions of the Workers’ compensatory potential tort claim for rent Act. damages. Pryse punitive Monument ¶ matter, Kay County, practical Company v. District Court Finally, aas ¶71, principal into em- inquiry 436-37. The scope of 1979 OK overly broad ployer’s activities becomes a employee case involves deceased instant in other manage when facilities difficult whose widow received workers’ Discovery and nations at issue. states majority’s opinion benefits. The allows needlessly The man- becomes burdensome. potential compensa- tort claim for concurrent employer chooses to struc- ner in which an Thus, punitive damages. tory and conflicts in other and nations its activities states ture Pryse. teaching Legislature The with statutory relevant to will not be considered it adopted this outcome when did intend in Oklahoma. employer status Compensation Act. the Workers’ QUESTIONS AN- CERTIFIED ¶ Legislature, by 4 The chosen words SWERED. acts,” legislative indicate a intent “intentional “true to allow tort claims for intentional HARGRAVE, KAUGER, WATT, C.J., The set such must JJ., torts.” standard for cases EDMONDSON, TAYLOR, concur. clear, easily concise and ascertainable. be WINCHESTER, V.C.J., LAVENDER Only provides tort” test the “true intentional ALA, JJ., OP dissent. objective The an elusive such standard. WINCHESTER, V.C.J., whom with certainty” falls far A “substantial test short. LAVENDER, ALA, join, and OP J. J. jurisdictions, majority of as cited the ma- concurring dissenting part: part, jority opinion, not utilize “substantial cer- do majority’s I concur with the Indeed, only While tainty”. minority of a small is- analysis principal employer status The “true inten- dozen states uses test. sue, respectfully adoption I dissent to their provides tort” the assurance tional test standard of the “substantial conduct, egregious in those circumstances against tort claim an em- for an under of a true intentional tort the standard adopt “true ployer. I would intentional met, thereby alerting the common law will be test, an requiring deliber- tort” anticipate liability in an by desire ate act file such a claim. consequences of the act. bring about respectfully Accordingly, I dissent Legislature 2 The enacted holding today. I portion of the Court’s system knowing that workers intentional tort” hold that “true would injured job. issue while on the would be for deter- appropriate is the standard test tort, pur- to define an intentional how falls mining conduct injuries. guided I am poses workplace exclusivity provisions of Okla- outside First, Legislature fundamentals. three Act. homa’s Workers’ system special with a an elaborate created court, compensation for to address workers’ Second, injuries.
workplace Oklahoma’s WINCHESTER, OPALA, J., whom represents Compensation Act V.C.J., joins, dissenting in part. Third, express compromise. mutual today first 1 I not answer Legislature provide balance words certifying posed lead me to con- competing interests. These assuring us receiving order advance but Legislature intended all clude plaintiffs tort claim that the common-law cov- egregious most circumstances herein the two defendants statutory not barred remedy. ered *10 582 (a) by plaintiffs
either
earlier selection of
I
remedy
prose-
she
QUESTION
THE FIRST
CERTIFIED BY
(b) by
a successful
or
cuted to
conclusion1
THE FEDERAL COURT MAY BE
resulting
preclusion2
compen-
issue
from the
MOOTED BY A TWO-FOLD BAR—
sation
final order that finds the
award’s
dece-
AN ELECTION OF REMEDIES OR
(as
on-the-job injury
dent’s
was “accidental”
ISSUE PRECLUSION
willfully
any
opposed to inflicted
or
other
legal question
2
posed
The first
to us—
pierce
manner sufficient
whether the
protected by
§
immunity3
from
statutory
extra-com-
immunity
liability
pres
tort —
harm).4
liability for
pensation
the same
ents for our
proposition
public
resolution a
of
targets mainly
my
possibil-
dissent
While
law.5
confronting
When
public
a matter of
ity
first federal-court
law,
utterly
this court is
free to choose sua
bar, I
by
explain
a two-fold
write to
mooted
sponte its own
dispositive legal
framework of
place the line of
I would
demarca-
where
(theories
problem-solving techniques
and re
separates
employer’s §
12 im-
avenues)
tion that
medial
to arrive at
appropriate
the most
liability.
munity from its
er.6
If either of the two bars
answ
1434,
(1971))
in the record from the United
1. Included
States
583 nearly century the willful tort against stood for is invocable by this dissent described —at today defendant, § reduces outer 12 im line.8 The that defendant’s either immunity coincide it limit of reach munity issue. Once becomes academic foreign doctrine of “substan- is not actionable so-called clear that claim immunity certainty.”9 § inter The latter shrinks an em- 12 tial against party, immunity adding liability beyond by the court’s for the party ployer’s posed party is ever called gross negligence to notice. No torts of and reckless indif- need immunity liability upon harmony to raise its from is neither in ference. doctrine against a which is nonac- claim of another nor with Oklahoma’s historical antecedents tionable. jurisprudence constitutional gave compensation to workers’ liabili- birth plaintiffs earlier 3 The barrier of ty.10 remedy compensation law and selection prosecution of benefits’ recov- her successful compensation 1915 law 5 The workers’ preclusion ery7 issue and/or negli common-law abolished finding that Compensation Court’s and the gence action on-the-job injury “accidental” decedent’s corollary contributory defenses of latter’s unavailable judicially must be removed as assumption of the risk.11 In called to con- court can be before this tradeoff, conformity with this workers ob po- employer’s the immediate sider employers’ benefit of fault-free tained the § immunity “principal employer’s” 12 tential on-the-job-injuries employers liability for liability. employer, once The latter from protection answerability from received principal the status of found stand early on Act’s tort.12 In an attack consti fully enjoy employer, would the benefits v. the court in Adams Iten validity, tutional barriers, legal applicable. if otherwise both Biscuit Co.13 upheld law’s remedy for work-related accidental Iten injuries. teaches that willful and in II injuries, inflicted tentional employee, are not to be consid COM- THE EMPLOYER’S WORKERS’ ered and hence must be excluded accidental LI- IMMUNITY FROM PENSATION early coverage. a result of this As BE ABILITY PLACED AT SHOULD tradeoff, twentieth-century obligations TORT AND ALONG THE WILLFUL compensation regime im workers’ LINE absolutely poses employers insepara are on immunity perimeter of immunity 4 An 12 from tort ble from the compensation liability it has confers.14 should continue to stand where Co., Court, See, e.g., Beauchamp Pryse v. Chem. 427 1979 9. Dow 7. Monument Co. v. District OK (1986); 435, 437-38, Woodson Mich. 398 N.W.2d 893 teaches that em Rowland, 222, 229 329 N.C. 407 S.E.2d ployee has two available remedies for the who prosecuted them same one of the other conclusion is barred from resort Co., remedy. supra 8 10. v. Iten Biscuit note at 940- Adams 41. first workers’ 8. Oklahoma enacted Okl.Sess.Laws, 574; p. Ch. Adams 11. 1915 Okl.Sess.Laws, p. law in Ch. Co.,supra note at 940-41. Biscuit Iten Co., OK 574. See Adams v. Iten Biscuit compen- 162 P. 940-41. Modern workers' plain language of 85 O.S.2001 12. As the sation statutes remove the element of fault as clear, on-the-job injuries all accidental makes requirement ascribing baseline for through Workers' Com- must be channeled injuries replace with work-connected Court, pensation on- claims for intentional but concept responsibility. of strict For a discussion the-job outside delicts be vindicated liability’s development, of strict historical see compensation regime. Palmer, Theory A Vernon General Inner Law, Liability: Civil Structure Strict Common Law, Law, supra Comparative Iten note at 940- 62 Tul.L.Rev. 1303- 13. Adams v. Biscuit and (1988). gross negligence analysis Torts of very off that is the cornerstone of *12 safety based on reckless indifference to the jurisprudence provided this court’s of an individual authorize the defense of con- approval constitutional for the workers’ com- tributory negligence, but fall pensation short of an regime. wrong’s equivalent.15 I would immunity line where it
leave the should be correctly placed it has stood where —at separates the demarcation that torts which contributory negligence is a defense from contributory negligence torts which is not enjoy § a defense. An immunity if the tort the subclass of OK contributory negligence those to which MANUFACTURING, KING interposed as a defense.16 Where the law Compsource Oklahoma, permit contributory would not a defense of Petitioners, negligence, immunity would not avail be- cause the harm could not be deemed acciden-
tal.17 MEADOWS, Darrell and The Workers’
Compensation Court, Respondents.
Ill 100,725. No. SUMMARY Supreme Court of Oklahoma. 7 Because I concur in the text of the 1, Nov. 2005. question, court’s answer to the second I today’s opinion answering would confine I alone. dissent from the question.
court’s answer to
first
§
8 I would
immunity
leave within the
cases
which the tort authorizes the
contributory negli-
defense of
gence. My
faithfully
view
follows the trade-
Co.,
teachings
14. The court reaffirmed the
supra
of Adams
16. Adams v. Iten Biscuit
note 8 at 940-
8,
supra
v. Iten Biscuit
41.
note
United
States
Ross,
Zinc Co. v.
1922 OK
208 P.
give
17. To
rise to a tort claim that will stand
stating
that workers'
is an exclu-
law,
dehors
an intentional on-the-
remedy
willfully
sive
"unless the
in-
job
product
employer's
must be the
employer."
flicted
The court cited Adams
knowing
injury.
and willful intent to cause
De-
Wolfe,
v. Iten Biscuit Co. in Hull v.
1964 OK
Insurance,
54, ¶ 10,
Anda v. AIU
2004 OK
491, 493, stating:
393 P.2d
"This Court declared
V.C.J.,
(Opala,
concurring);
P.3d 1080
Pursell v.
the Act was intended to cover all accidental
Inc.,
¶ 3,
Inn