*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.

2005 OK 54 Gwendolyn Kay PARRET, Plaintiff,

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 106 A.L.R.5th 309 agreement user license program paragraph contained in software 30 notes that the of the valid- valid.]; Solutions, ity Barnett v. Network licensing agreements of such clickwrap Inc., (Tex.App.2001) agreements S.W.3d [Forum analy- is not before the court and the click-wrap agreement selection clause held.]; up agreements sis is limited to which fall under M.A. Mortenson Inc. v. Timberline article 2 of the U.C.C. *2 Edmonds, Gladd, N. J.

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 23 P.3d 288. scope for de- of the test Whether statutory employer

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 45 P.3d 430. That review Thomp- included Bridgestone UNICCO and poli- had written Machinery son Madison 684 P.2d standard, “unless the case involves held that “the intent” (Okla.Ct.Civ.App.1984), battery, recovery probably or a will were de- assault compensation statutes remedy for Am.Jur. Proof of Facts 2d provide the denied.” 48 signed (1987). “Nevertheless, during the 2 at recent injuries sustained accidental permit- years employment there has been trend toward scope of a worker’s course is a designed employers ting common law suits when were not to shield [and] willful, knew intentional or result actions were co-employees from ‘substantially injury. to cause About 568. The Har- certain’ violent conduct.” Id. at even that, now follow this or a similar in each case re- dozen states rington court noted Larson, viewed, n. 1. the con- rule.” 103.03 “the decided whether involved duct of defendant reject “specific 11 The court to first specify- without willful in workers’ intent” standard *4 defined willful intention- ing how court very early originated from observed it It defined a willful al.” 45 P.3d at 434. then Washing- in workers’ decisions knowing and injury “to or intentional involve Oregon employer in- ton and which defined part on of the em- purposeful conduct to applied tent in the same terms murder injure employee.” Id. at 435. ployer to statutes. See Mandolidis v. Elkins Indus. Inc., 695, 246 ¶ 161 W.Va. S.E.2d year, a from this 9 In that same decision (1978). adequate justi- That court found “no in Davis v. Continen- was issued CMS adhering to the construction of Inc., fication Gas, Natural OK tal .2001 only which not erroneous but which Court, statute is There, with Har- consistent injustice persons injured an on works intentional mis- rington, reaffirmed likely produce is of conduct which so result part on of an conduct performance, its injury or death that under the exclusive a worker’s from remove circumstances, perhaps could warrant remedy provision Compensa- of Workers’ liability.” criminal Id. at 913. Since that Act. Court’s Davis foreshadowed time, legislatures “both and a fair courts commonly of two standards allegiance one jurisdictions rejected have number in- whether a worker’s applied to determine actual intent to harm is proposition conduct jury resulted from the “intentional” employer’s conduct to required for an be employer. Which standard would be of the protected by actionable tort and not however, adopted, remained undecided be- exclusivity provisions compensa- of workers’ conduct Davis cause Rowland, 329 N.C. tion.” Woodson standard. Id. not “intentional” under either (1991). Essential to 407 S.E.2d Today, precisely pre- that issue is at 296. ap- will of which standard determination Question in the One: “Is the sented form Oklahoma, however, plied in is an under- test, tort’ re- the ‘true intentional standard law standing concept of “intent” tort specific intent to cause quiring deliberate relationship to other standards injury, the ‘substantial the standard conduct. certainty’ test?” date, recognize not 10 To some states do TORT LIABILITY CONTINUUM exception to com-

an intentional tort Keuchel, In 1993 OK 847 pensation exclusivity. 6 & 12 Graham v. Arthur Larson Larson, explained that the Compen- P.2d this Court K. Larson’s Workers’ Lex (Math.Bend.2004). “actionable tortious con- § Law common divides sation 103.01 (1) (2) do, acts negligence, into exception limit the duct states that Some willful injures result in intended unintended harm.” instances which lie three deliberately In lower of tortious conduct with the actual tier Id. are defined injury. negligence. § n. 1. These Id. at 103.03 levels intent cause states, slight negligence, expressly statute Oklahoma as exception In few negligence. ordinary negligence, gross assault. limited to cases of intentional See (2001). §§ In Stat. tit. 5 & 2d 17 at 245 See Okla. Causes Action levels: But, jurisdiction higher lie two distinct any applying “specific tier higher and wanton misconduct and on to wilful inten- describe level of misconduct at 362-363. misconduct. Id. explaining tional that a “[Defendant’s conduct was if desired to cause he/she “wilful 13 The level termed and wanton” or knew that [Plaintiff] such misconduct, Prosser, according to Professor substantially certain to result [his/her] occupies penumbra of what “a has been conduct.” ‘quasi lying gross called intent’” between conduct. and intentional William analysis 15 The Graham and defi- Prosser, L. Handbook the Law of Torts nitions derived therefrom and articulated in Graham, (4th ed.1971). As ex- OUJI a continuum of formulate plained: be outlined as follows: [t]he intent in and wanton miscon- wilful Negligence I. injury; duct is to cause A. Slight Negligence great —want is an intent to do act —or the failure diligence. care and disregard to do an act—in reckless Ordinary Negligence B. consequences under of ordi- such circum- —want nary diligence. care and

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 28 L.Ed.2d 788 conditional- Court for the Western ly approving District District of Okla preclu- the "offensive” use of issue (order Exhibit 1 of the homa is Workers’ Com by nonparty prior sion to a lawsuit. Court) pensation Motion for Partial UNICCO's order, Summary Judgment. That Immunity entered 13 Oc liability upon from tort is conferred 3. 1999, Gwendolyn Kay awarded benefits to employers 12, tober provisions of 85 O.S.2001 husband, death of her Parret for the Glenn Par- provides: whose text Parret, ret. In the Matter Death Glenn of of liability prescribed "The in Section 11 of this Deceased, Parret, Gwendolyn Kay Claimant v. title place shall be exclusive and in all other of Co., Respondent, UNICCO Service Travelers In any employ- his surance, (Workers’ Compensa Insurance Carrier services, injury, ees ... for such loss of Court, 99-11585A). Bridgestone/Fire- No. death, employee, spouse, personal to the or the stone, Inc., Tire, Dayton a defendant in the d/b/a representative, parents, dependents of the litigation, party federal-court was not a to the employee, any person....” compensation claim. added). (emphasis recognized Mfg. 2. Supply This court in Anco & According findings by to the award's Swank, 78, the Work- 7, 10, 4. Co. v. 1974 OK 524 P.2d Court, ers' the worker was in the preclusion the issue doctrine be asserted " employ July of UNICCO Service Co. on 20 defensively. phrase 'defensive use' of the personal when he inju- "sustained an accidental stranger judg- doctrine ... means to the ry arising out ment, employ- and in the course of ... ordinarily the defendant in the second respondent, ment with the action, as a result of which judgment relies a former as conclu- 22, July ... [he] died on 1999.” In the Matter sively establishing in his favor an issue which he Parret, Deceased, the Death supra Glenn note 1 prove must as an element of his defense." Anco (order 1999) (emphasis entered 13 October add- (citations Mfg., supra, There, omitted). 524 P.2d at 10 ed). preclusion issue was invoked as a defen- relitigation sive bar to of an issue then in the court, Schools, 4, ¶ Spiro 7, 5. Amos v. which had been Public 2004 OK (in party estopped) (citing determined Special Indemnity favor of the to be P.3d Fund 14, 5,¶ Reynolds, 841, 842); proceeding. an earlier v. district court 1948 OK 188 P.2d Reynolds Fund, Special v. Indemn. estoppel preclusion], 1986 OK "Collateral [issue like the 1265, 1270; 725 P.2d Gypsum National judicata Co. preclu- related sion], of res [claim doctrine Brewster, 185, K22, 1969 OK purpose 461 P.2d has the protecting litigants dual relitigating from the burden of an identical issue party privy promot- with the same or his and of ing judicial economy by preventing needless resolving public-law liti- question, "When we are gation.” Shore, Hosiery Parklane Inc. v. sponte dispositive free to public- choose sua 322, 326, 645, 649, U.S. 99 S.Ct. theory although L.Ed.2d 552 wrong one is advanced.” policies, In furtherance of those the U.S. Yeatman v. Northern Oklahoma Resource Center has, Supreme years, Enid, 27, 15, 1101; recent broadened 2004 OK V 89 P.3d scope preclusion Schools, doctrine of issue Spiro supra Amos v. Public note at5 beyond 816; Goodrich, common-law It limits. has done so 85 P.3d at Davis v. B.F. 1992 OK abandoning requirement mutuality par- C.J., (Opala, conc Laboratories, (Blonder-Tongue ties Fund, urring)(citing Inc. v. Reynolds Special Univer- Indemn. Foundation, sity ¶ 14, Illinois supra 1270). U.S. 91 S.Ct. note 5 at 725 P.2d at

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 1990 OK CIV APP 4 Pizza 786 P.2d injuries, but did not include willful or intention- 716, 717; 4,¶ Barclay, Roberts v. 1962 OK 38 injuries al whether inflicted ¶ 32-34, 369 P.2d 809. Id. at 435-36. The employee, [they since ... are] not acciden- inflicted must be neither one that is in the added). (emphasis tal.” Both the terms of 85 employee/employer normal relationship nor one O.S.2001 jurisprudence 12 and Oklahoma's directly that stems from risk related to the contributory negligence bar as a defense employee's service. Id. at at 436. Because clearly claim. The text of 85 O.S.2001 compensation quid pro quo workers' elimi- provides compensable that an "without on-the-job-injury nated fault as a basis for liabili- regard part. to fault” on the worker's ty, the fact that harm inflicted the worker product employer's was the of an reckless indif- Keuchel, 15. Graham v. 1993 OK 847 P.2d long ference resulting is irrelevant as 357. Gross is characterized as reck- employment-related harm was from an risk. consequences. less indifference Inc., to the Harrington Wootan v. Systems 2001 OK Certified Shaw, 307, ¶22, ¶ 34, 1951 OK 237 P.2d CIV APP 53