WELLS v. OKLAHOMA ROOFING & SHEET METAL
Case Number: 112844
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 06/18/2019
2019 OK 45, 457 P.3d 1020
CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV
¶0 Daughter of the deceased employee brought a wrongful death action in district court against the decedent‘s employer for intentional tort, asserting that the decedent‘s employer was willful, wanton, and intentional in directing the decedent-employee to perform certain tasks that the decedent‘s employer knew was certain or substantially certain to result in the decedent-employee‘s death and sought declaratory relief that the exclusive liability provision of the Workers’ Compensation Act was unconstitutional. The district court declared the Act‘s exclusivity provision constitutional, ultimately determined the decedent-employer‘s liability was exclusively governed by the Oklahoma Workers’ Compensation Act, and dismissed the daughter‘s petition. The Court of Civil Appeals, Division IV, declared the statute constitutionally infirm as a special law in violation of
CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; DISTRICT COURT ORDER REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
James K. Secrest, II, Edward J. Main, SECREST, HILL, BUTLER & SECREST, Tulsa, Oklahoma, for Appellees.
Larry A. Tawwater, Darren M. Tawwater, THE TAWWATER LAW FIRM, P.L.L.C., Oklahoma City, Oklahoma, for Appellant.
Mike Hunter1, ATTORNEY GENERAL, Oklahoma City, Oklahoma.
Colbert, J.
I. BACKGROUND AND PROCEDURAL POSTURE
¶2 On June 27, 2011, Robert Young, an employee of Oklahoma Roofing & Sheet Metal, Inc., and Oklahoma Roofing & Sheet Metal, L.L.C. (collectively, Employer), was working on a roof applying a membrane roof on a three-story building when he was required by Employer to unhook his single line lanyard requiring him to cross over two coworkers. He walked ten feet beyond the point where he had unhooked his lanyard when he fell, landing on an awning thirty feet below, and then he rolled off the awning and fell onto bricks on the ground twelve feet below to his death. Prior to the date of Wells injury and death, Oklahoma Roofing and Sheet Metal, Inc., was cited for a violation related to the duty to have a sufficient fall protection system.
¶3 Crystal Wells, individually and as Administrator of the Estate of Robert Young, Deceased (Wells), commenced an action in district court seeking damages for Decedent‘s death and declaratory relief. Wells‘s first amended petition alleged Decedent‘s death was the result of Employer‘s intentional tort. Specifically, Wells alleged that Employer provided and intended Decedent to use a single-line lanyard fall-protection system that required Decedent to temporarily unhook his safety anchor in order to pass over the other co-workers working on the roof. Wells alleged that when the anchor was unhooked, the fall protection system was inoperable; and therefore, unable to prevent an employee‘s fall like the instant fall which led to Decedent‘s death. Wells alleged Employer knew the single-line system would lead to Decedent‘s death; that Employer‘s actions were willful, wanton, and intentional; that Employer was found to be a repeat violator of the Occupational and Safety Health Administration‘s (OSHA) safety rules; that Employer was fined by OSHA for acts related to Decedent‘s death;6 and that Employer was previously cited on two7 separate occasions “by the United States Government for violating various Federal requirements regarding the fall-protection equipment.” Wells alleged Employer‘s actions were willful, wanton, and intentional, with specific knowledge of the dangerous and potentially lethal conditions and thus, her remedy was not limited to those benefits provided by the Workers’ Compensation Act. In addition, Wells sought declaratory relief to declare the exclusivity provision of
The liability [of the Act] shall be exclusive . . . except in the case of an intentional tort, . . . . An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court . . . . (emphasis added).
¶5 Upon review, the COCA found that, in the context of the workers’ compensation law, § 12 defined an “intentional tort” much narrower than the definition utilized in a garden-variety intentional tort action, although both types of actions are litigated in courts of general jurisdiction. As applied, § 12 created a subset of litigants and treated those litigants differently than other similarly-situated litigants. The COCA reversed the district court‘s determination and held § 12 unconstitutional as a special law. Employer sought certiorari review.
II. STANDARD OF REVIEW
¶6 Decedent‘s work-related death occurred on June 27, 2011. The law in effect at the time of Decedent‘s death, including claims for injuries, is governed by
¶7 At issue is the constitutionality and application of
III. DISCUSSION
A. Specific Intent and Substantial Certainty are Nomenclatures of an Intentional Tort
¶8 At the outset, it is critical to this Court‘s analysis to bring into focus what constitutes an intentional tort while fortifying the walls of the Oklahoma Workers’ Compensation‘s exclusivity provision. In general, an employer‘s liability for an employee‘s injuries is limited to the exclusive purview of the Workers’ Compensation Court, except in cases of an intentional injury and, although not applicable here, “where the employer has failed to secure the payment of compensation for the injured employee.”
¶9 In Parret, a worker died when he was electrocuted while replacing emergency lights at a job site as ordered to do by his employer even though the employee knew that the lights were “hot or energized.” Id. ¶¶ 3-4, 127 P.3d at 574. This Court settled the question that only an employer‘s intentional acts fall outside of the Oklahoma Workers’ Compensation exclusivity provision. Id. ¶ 24, 127 P.3d at 579. Our review in Parret, however, was limited in scope to the two questions certified by the Federal court. Id. ¶ 1, 127 P.3d at 573-74. Relevant here, is question one, seeking guidance on the application of Oklahoma‘s intentional tort standard—namely, the “true intentional tort” and “substantial certainty.” Id. ¶ 9, 127 P.3d at 575.
¶11 Parret denotes that when an employer “(1) desire[s] to bring about the worker‘s injury or (2) act[s] with the knowledge that such injury was substantially certain to result from the employer‘s conduct,” an intentional tort action will lie. Id. ¶ 24, 127 P.3d at 579. We acknowledged that “all consequences which the actor desires to bring about are intended.” Id. ¶ 17, 127 P.3d at 577. That intent, whether an intentional act or intentional inaction, is, by definition, deliberate. So, because “[i]ntent denotes a desire to cause the consequences of his act that the actor knows is certain, or substantially certain to result, then under the law, the actor has in fact desired to produce the result.” Id. ¶ 17, 127 P.3d at 579 (quoting 1 Restatement (Second) of Torts § 8A (1965)). Shifting our focus to the substantial certainty element, we stated that the employer not only had to intend the act that caused the injury, but also required that the employer knew that the injury was substantially certain to follow. Id. ¶ 24, 127 P.3d at 579. The employee, then, “must allege facts which ‘plausibly demonstrate that’ the employer‘s conduct was intentional . . . .” Id. The employer‘s knowledge “may be inferred from the employer‘s conduct and all the surrounding circumstances.” Id. Although our limited review focused on the substantial certainty aspect of an intentional tort, we by no means “expand[ed] the narrow intentional tort exception to [the] workers’ compensation exclusivity” provision. Id. ¶ 27, 127 P.3d at 579. Rather, we stated that both elements constitute an intentional tort and spoke directly to the tortfeasor‘s requisite mental state—that is, the employer‘s subjective appreciation of the resulting injury. Id. ¶ 24, 127 P.3d at 579. In short, Parret did not recognize two types or levels of intentional torts. Compsource Okla. v. L&L Construction, Inc., 2009 OK CIV APP 28, ¶ 18, 207 P.3d 415, 420. Rather, Parret clarified what kinds of conduct constitute an intentional tort. Id.
¶12 Employer contends that § 12, like its successors,8 was a legislative response to address a perceived unwarranted expansion of the intentional tort exception to the workers’ compensation laws resulting, presumably, from our decision in Parret v. UNICCO Serv. Co., 2005 OK 54, 127 P.3d 572. According to Employer, § 12 attempts to redefine the existence of intentional torts to only those that result from the “willful, deliberate, specific intent of the employer” to cause injury and excepts those injuries an employer knows are substantially certain to occur. Yet, that fallacy is premised on the specific intent and substantial certainty nomenclatures, commonly misunderstood as one being different than the other. They are not. “[W]hat appears at first glance as two distinct bases for liability is revealed on closer examination to be one and the same.” Hoyle v. DTJ Enters., Inc., 36 N.E.3d 122, 127 (Ohio 2015) (quoting Rudisill v. Ford Motor Co., 709 F.3d 595, 602–03 (6th Cir. 2013) (describing Ohio R.C. 2745.01 as “a statute at war with itself“)).
¶14 Our analysis begins with the text and context of § 12. The operative word in § 12 is “intentional.” The category of intentional torts have remained unchanged since before the inception of Oklahoma‘s workers’ compensation laws in 1915—a period in excess of a century. Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938; see also Roberts v. Barclay, 1962 OK 38, 369 P.2d 808. The first constitutional challenge to Oklahoma‘s workers’ compensation scheme was addressed in Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938. In Adams, the court upheld the workers’ compensation scheme as the exclusive remedy for work-related accidental injuries. Id. ¶ 17, 162 P. at 945. In determining the Act‘s constitutionality, we stated: “The act does not undertake to regulate willful injuries . . . but leaves the injured employee to his remedy as it existed when the act was passed. Considering the various provisions of the act together . . . [the Act] embraces all kinds of accidental injuries . . . whether occurring from the negligence of the employer or not arising out of and in the course of employment, but does not include willful or intentional injuries inflicted by the employer.” Id. ¶¶ 16-17, 162 P. at 945.
¶15 In a subsequent decision, U.S. Zinc Co. v. Ross, 1922 OK 247, 208 P. 805, the court clarified the Adams decision, holding that only injuries occasioned by an employer‘s willful and intentional injuries could not be considered accidental. Id. ¶ 3, 208 P. at 806. There, the court defined “willful” as “more than a mere act of will, and carries with it the idea of premeditation, obstinacy,9 and intentional wrongdoing.” Id. ¶ 6, 208 P. at 807 (citation omitted). By its definition, “willful” embodies intentional. Id. In context, this reading is consistent with the preceding provision that conditions an employer‘s liability on accidental injuries and expressly excludes injuries resulting from the “willful intention” and “willful failure” of the employee and co-employee. Id. The definition of “intentional,” then, remains fixed and excluded from our compensation laws since before adoption of the compensation scheme and therefore, controls its meaning.
¶16 In the context of deliberate intent, that is an employer‘s deliberate intentions, the Supreme Court of Oregon stated that,
[D]eliberate intent follows as a deduction from the allegation of knowledge of the danger and the carelessness, negligence, and recklessness of defendant in not obviating it . . . . A deliberate act is one the consequences of which are weighed in the mind beforehand. It is prolonged premeditation, and the word when used in connection with an injury to another denotes design and malignity of heart. It has been defined so many times that it is difficult to select any one definition which covers every phase in which the word is used, but some of the most apt are:
“The word ‘deliberate’ is derived from two Latin words, which mean, literally, ‘concerning,’ and ‘to weigh.’ * * * As an adjective * * * it means that the manner of the performance was determined upon after examination and reflection—that the consequences, chances and means weighed, carefully considered and estimated.”
“Deliberation is that act of the mind which examines and considers whether a contemplated act should or should not be done.”
Jenkins v. Carman Mfg. Co., 79 Or. 448, 453, 155 P. 703, 705 (1916) (citations omitted). “Deliberation” is “premeditation.” Id. And, the premeditated thought is described as a mental thought beforehand, for any length of time preceding an act or willful failure to act, however short. See Easley v. State, 78 Okl. Cr. 1, 8, 143 P.2d 166, 170 (1943). In order to come within § 12‘s exception, “it is incumbent upon an injured [employee] to establish that his employer had a deliberate intention to injure him or someone else and that he was in fact injured as a result of that deliberate intention.” Kilminster v. Day Mgmt. Corp., 323 Or. 618, 631, 919 P.2d 474, 481 (1996) (citations omitted). The more difficult question is how does an injured employee demonstrate an employer‘s requisite statutory intent when that intent is subjective.
¶18 Specific intent, like its counterpart substantial certainty, is purely a subjective fact never susceptible to direct proof. Stated differently, showing an employer‘s subjective intent to engage or refusal to engage in an activity that the employer knows that injury is certain to occur requires consideration of objective facts, and from those objective facts, an ultimate conclusion is drawn. See Tiger v. Verdigris Valley Elec. Coop., 2016 OK 74, ¶¶ 14-15, 410 P.3d 1007, 1011–12. “[A]n employer‘s knowledge may be inferred from the employer‘s conduct and all the surrounding circumstances.” Id. (citation omitted). Therefore, an employer‘s conduct and the surrounding circumstances can be established through circumstantial evidence. Estrada v. Port City Prop., Inc., 2011 OK 30, ¶ 22, 258 P.3d 495, 504. To illustrate, assume a “defendant pushes [a] plaintiff into a room, locks the door and throws away the key.” § 29 The Meaning of Intent, Dan B. Dobbs, Paul T. Hayden and Ellen M. Bublick. Because “the trier of fact has no mind reading machine to determine” the defendant‘s subjective intent,” the trier of fact is entitled to infer [from external or objective evidence] that the defendant intends to confine the plaintiff, at least for a time.” Id. “[E]vidence that the defendant intended any given act may be good evidence that he also intended the results that tend to follow such an act.” Id. Such a determination is clearly a question of fact that is ordinarily inferred from the employer‘s conduct or acts under the circumstance of a particular case. Lucenti v. Laviero, 176 A.3d 1, 11 (Conn. 2018).
¶19 We think by the words “willful, deliberate, specific intent of the employer to cause such injury” that the Legislature unequivocally intended to convey that the employer must have determined to injure an employee and used some means appropriate to that end; and that there must be a deliberate intent. It is now settled that an employer‘s willful, deliberate, specific intent to injure with the purpose to cause injury or which injury is substantially certain that makes an employer‘s act or failure to act intentional. Mere carelessness or negligence, however gross, will not suffice. However, we do not believe, as Employer contends, that the Legislature intended to bifurcate the sphere of intentional torts constitutionally reserved as common law rights of actions which predate the inception of Oklahoma‘s workers’ compensation scheme.
¶20 At this juncture we note that there has always been disparity between the rights and remedies of persons injured while in the course and scope of their employment and those who are injured elsewhere. See Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938. However, that disparity is properly confined within the Workers’ Compensation system. Id. The original Industrial Bargain/Grand Bargain struck between employees and employers is premised on compensating employees for accidental work-related injuries regardless of fault. Id. “[T]he workers’ compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker‘s employment [and] were not designed to shield employers or co-employees from willful, intentional or even violent conduct.” Parret, 2005 OK 54, ¶ 8, 127 P.3d 572, 575 (quoting Thompson v. Madison Machinery Co., 1984 OK CIV APP 24, ¶ 17, 684 P.2d 565, 568).
¶22 The effect of the Employer‘s argument before this Court is that an employee‘s injury is compensable in a workers’ compensation no-fault scheme even if the injury was a result of merely a slight degree of negligence, but an employer‘s substantially certain intentional tort received no remedy in workers’ compensation or in the District Court.10 No public interest is articulated by Employer to support any public policy for denying a course of action in District Court based upon an employer‘s intentional tort injuring an employee while also denying a workers’ compensation remedy other than the party‘s reference to the power of the Legislature. This interpretation of the statutes presents an underinclusive-overinclusive constitutional invalidity issue similar to the one addressed in Torres v. Seaboard Foods, LLC.11
¶23 When the Legislature superseded Parret, as argued by Employer herein, it did not also change the definition of an “accident” or otherwise expressly make clear a substantially certain employer‘s intentional tort is compensable using a workers’ compensation remedy. It is patently clear that the Legislature has expressed an intent to confine adjudication of accidental work-related injuries to the workers’ compensation system.12 By its expressed terms, § 3 of 85A mandates that every employer and employee shall be subject and bound to the Administrative Workers’ Compensation Act, but that the ”act shall only apply to claims for injuries and death based on accidents . . . .” § 3(B) (emphasis added). The key here is that the Act only covers injuries or deaths caused by accidents based on negligence where a duty of care has been breached. The Act was never intended as a remedy for intentional torts. Therefore, we find that the Legislature‘s definition of intentional tort codifies and galvanizes the common law right of an intentional tort action. We further find that intentional injuries have never been inside the walls of the workers’ compensation scheme of
IV. CONCLUSION
¶24 We hold that the willful, deliberate, specific intent of the employer to cause injury, and those injuries that an employer knows are substantially certain to occur, are both intentional torts that are not within the scheme of the workers’ compensation system or its jurisdiction. Plaintiff‘s additional constitutional arguments are thus not necessary to adjudicate this appeal. For the reasons expressed herein, the district court‘s order is reversed and the matter is remanded to the district court for further proceedings consistent with today‘s pronouncement.
CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; DISTRICT COURT ORDER REVERSED; CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
VOTE: Gurich, C.J., Colbert J., Reif, S.J. and Rapp, S.J., concur; Edmondson, J., concurs specially (by separate writing) Darby, V.C.J., Kauger (by separate writing), Winchester (by separate writing) and Combs, JJ., dissent.
WELLS v. OKLAHOMA ROOFING & SHEET METAL
Case Number: 112844
THE SUPREME COURT OF THE STATE OF OKLAHOMA
Decided: 06/18/2019
2019 OK 45, 457 P.3d 1020
EDMONDSON, J., CONCURRING SPECIALLY, and joined by GURICH, C.J., and RAPP, S.J.
¶1 I write separately to explain further the analysis I believe this controversy requires. One of the parties states the implied legislative purpose or intent of
¶2 The workers’ compensation statutes state an employer‘s workers’ compensation liability is “exclusive and in place of all other liability of the employer” and an injured employee‘s “rights and remedies are exclusive of all other rights and remedies of the employee.”3 The 2010 version of the statutes in effect at the time of injury4 states a “compensable injury,” other than cumulative trauma, must arise out of and in the course of the employment, and be caused by a “specific incident.”5 In the present statutes6 a compensable workers’ compensation injury must be an “accident” and “unintended.”7 Historically, an “accident” for workers’ compensation law was required for liability and generally excluded injury caused by a person‘s intentional tort.8 The remedies provided by the workers’ compensation statutory scheme do not apply “in the case of an intentional tort,” or if “the injury was caused by an intentional tort committed by the employer.”9
¶3 The substantially certain standard as an evidentiary standard for showing the element of intent in an intentional tort cause of action was recognized in American jurisprudence in both the 1934 and 1965 Restatements on torts as part of a continuum of tort liability. Modern tort jurisprudence recognizes this liability continuum with intent and negligence occupying opposite ends of a spectrum with varying degrees of probability between these opposite ends.10 The substantially certain standard is on this continuum and is used as one type of evidence to show an actor intended the result of his or her actions.11 The Restatement (Second) of Torts states the following:
Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequence will follow decreases, and becomes less than substantial certainty, the actor‘s conduct loses the character of intent, and becomes mere recklessness as defined in § 500 [of the Restatement]. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282 [of the Restatement].
Restatement (Second) of Torts, § 8A cmt. b. (1965) (explanatory phrases added).
KAUGER, J., with whom COMBS, joins, dissenting:
In 2005, we decided Parrett v. Unicco Service Co., 2005 OK 54, 127 P.3d 572. The injury (death) in Parrett occurred on July 20, 1999. At that time, the exclusivity provisions of the Workers Compensation Act (the Act),
In 2012, we decided Jordan v. Western Farmers Electric Cooperative, 2012 OK 94, 290 P.3d 9, wherein we again addressed the substantial certainty standard and exclusivity provisions of the Act. The claimant‘s claim accrued in August of 2009 which also applied the same statutory provisions as those involved in Parret, supra. I concurred specially in Jordan, noting that on August 27, 2010, the Legislature amended the Act to overrule Parret, by repealing an employee‘s ability to bring an intentional tort claim under the substantial certainty standard.5
I also expressly noted that because the accrual of the employee‘s action occurred in August of 2009, Parret, supra, applied rather than the 2010 statutory change. I also said that “[soon], the few cases in the pipeline, if any, will be decided and any backlog of lawsuits begun before the August 2010 Legislative change will be exhausted. At that point, Parret, supra, will be inapplicable and the 2010 Legislative changes will control.” The point that is critical here is that the 2010 Legislative changes,
I. If the employer has failed to secure the payment of compensation as provided in Section 51 of this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either in the Workers’ Compensation Court or in the district court, but not both. (Emphasis supplied).
This provision remains in the current Workers’ Compensation statutes.6
The incident in this cause happened in 2010 after the statutory amendments granted the right of an injured party to bring a cause of action for intentional tort either before the commission or in district court. The statutes have been amended twice since 2010 and the same provision remains.
There is no need to try to equate substantial certainty with an intentional tort. Apparently, as a result of Parrett, supra, the Legislature has clearly and repeatedly enacted statutes which provide that “allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer‘s conduct shall not constitute an intentional tort.” Rather, the Legislature replaced substantial certainty with a more certain, bright line rule of purpose to cause injury or conscious object to cause such injury.7
The answer to the question before us is rooted in our traditional negligence jurisprudence and the definition of intentional tort. The equaling factor here is not that substantial certainty equals an intentional tort, but rather negligence may be in such reckless disregard of the consequences or in callous indifference to the life of another that the intentional failure to perform a manifest duty may result in such a gross want of care for the rights of others that a finding of a wilful, wanton and deliberate act may amount to negligence so gross it is deemed the equivalent to evil intent justifying an action for intentional tort.8
This is precisely the circumstances presented by this cause. The claimant has the option of pursuing the matter before the Workers’ Compensation Commission following the standards set forth by the Act, or the traditional negligence standards applied in district court, but not both.
In Adams v. Iten Biscuit Co., 1917 OK 47, ¶17, 162 P. 938, the Court very clearly described how intentional torts remained in the realm of the district court. The Court said:
It is urged that the injuries covered by the act are only those of an accidental nature, and that the employee cannot recover thereunder for a willful injury caused by his employer, and thus he is deprived of the equal protection of the laws. The act does not undertake to regulate willful injuries of the character mentioned, but leaves the injured employee to his remedy as it existed when the act was passed. Considering the various provisions of the act together, there does not seem to be any ambiguity as to its meaning. It embraces all kinds of accidental injuries not resulting in death, whether occurring from the negligence of the employer or not, arising out of and in the course of employment, but does not include willful or intentional injuries inflicted by the employer, nor injuries resulting from an intent upon the part of the employee to injure himself or another or for a willful failure to use a guard or other protection against accident required by statute or furnished pursuant to an order of the state labor commissioner. A willful or intentional injury, whether inflicted, by the employer or employee, could not be considered as accidental, and therefore is not covered by the act. If it were merely intended to cover accidental injuries for which the employee had no right of action, no reason is perceived why the Legislature would abolish the defenses of contributory negligence, negligence of a fellow servant, or assumption of risk, or why it should abrogate the employee‘s right of action for damages for injuries not resulting in death occurring in said hazardous occupation. The compensation afforded by the act and the procedure by which the same is determined were intended to be exclusive as to all of the injuries therein embraced, and the right of action theretofore possessed by the injured employee was abolished, leaving to him such right of action in the courts for willful injuries as he may have had prior to its passage, and the act, as thus construed, does not deprive plaintiff of the equal protection of the laws. (Emphasis supplied.)
Clearly, with the 2010 amendment to
WINCHESTER, J., dissenting:
¶1 I respectfully dissent. When the Legislature modified
¶2 The majority finds that a very specific portion of § 12, dealing with intentional torts, does not fall within the walls of workers’ compensation jurisdiction and that, because of this, the Legislature is apparently without authority to define what constitutes an “intentional tort” for purposes of workers’ compensation exclusivity. Section 12, as amended, simply clarifies when employees are covered by workers’ compensation and removes “substantial certainty” as a measure for determining what constitutes an intentional tort within the confines of the workers’ compensation system. It is illogical for the majority to conclude that the Legislature is constitutionally prohibited from drawing the line for workers’ compensation at one point on the tort liability continuum and not another.
¶3 The Legislature made a policy choice, in response to this Court‘s decision in Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572, to remove “substantial certainty” from the definition of “intentional tort” within the workers’ compensation system. The majority opinion overrides this authority and, in the process, thwarts legislative policy and preference. The Court‘s decision effectively curtails the Legislature‘s authority to define what actions fall under the workers’ compensation system despite acknowledging that the “disparity between the rights and remedies of persons injured while in the course and scope of their employment and those who are injured elsewhere” has long been “properly confined within the workers’ compensation system.” It is not the role of this Court to question the Legislature‘s policy-making authority and the Legislature‘s ability to legislate doesn‘t end at the walls of the workers’ compensation system. See Fent v. Oklahoma Capitol Authority, 1999 OK 64, ¶3, 984 P.2d 200, 204 (It is “firmly recognized that it is not the place of the Court, or any court, to concern itself with a statute‘s propriety, desirability, wisdom, or its practicality as a working proposition.“);
¶9 Today‘s majority opinion attempts to obfuscate the clear intent of the Legislature with erroneous, unsupported findings that “specific intent” and “substantial certainty” are one in the same. Regardless, the statutory language and its meaning are clear--proof of “substantial certainty” is insufficient to take a work-related injury outside of the workers’ compensation system. The plain meaning of § 12‘s amendment leaves no room for this Court to reach an opposite result. I respectfully dissent.
Notes
Section 12, as applicable herein, pecifically provides: “An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort.”The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer and any of his employees, any architect, professional engineer, or land surveyor retained to perform professional services on a construction project, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. If an employer has failed to secure the payment of compensation for his injured employee, as provided for in this title, an injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee; provided:
(i) The immunity created by the provisions of this section shall not extend to action by an employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person against another employer, or its employees, on the same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker;
(ii) The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker; and
(iii) This provision shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in paragraph (ii) of this section. This section shall not be construed to relieve the employer from any other penalty provided for in this title for failure to secure the payment of compensation provided for in this title.
(iv) For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications.
An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court. * * * *
The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: * * * * Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate; * * * * For limitation of civil or criminal actions; * * * *Article 5, § 59 of the Oklahoma Constitution states that, “[l]aws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.”
B. Except as otherwise provided by its benefit plan, or applicable federal law, a qualified employer is only subject to liability in any action brought by a covered employee or his or her dependent family members for injury resulting from an occupational injury if the injury is the result of an intentional tort on the part of the qualified employer. An intentional tort shall exist only when the covered employee is injured because of willful, deliberate, specific intent of the qualified employer to cause such injury. Allegations or proof that the qualified employer had knowledge that such injury was substantially certain to result from its conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the court or the duly appointed arbitrator, as applicable. (emphasis added).Of note—§ 209(A) was invalidated on other grounds. Vasquez v. Dillard‘s Inc., 2016 OK 89, 381 P.3d 768.
A. The liability prescribed in this act shall be exclusive and in place of all other liability of the employer and any of his or her employees, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person, except in the case of an intentional tort, or where the employer has failed to secure the payment of compensation for the injured employee.
B. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from the employer‘s conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court.
I. If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either before the Commission or in the district court, but not both.
The 2019 Legislative changes to the act did not make any modifications to this section.
B. Exclusive remedy shall not apply if: . . .
2. The injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer‘s conduct shall not constitute an intentional tort. The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. The issue of whether an act is an intentional tort shall be a question of law.