Washington’s Industrial Insurance Act generally precludes employee recovery for on-the-job injuries outside of the workers’ compensation scheme, unless injury results to a worker from the employer’s deliberate intention to produce such injury
How later courts described this case
- Washington’s Industrial Insurance Act generally precludes employee recovery for on-the-job injuries outside of the workers’ compensation scheme, unless injury results to a worker from the employer’s deliberate intention to produce such injury
- “Disregard of a risk of injury is not sufficient to meet the first Birklid prong; certainty of actual harm must be known and ignored”
- summary judgment is proper where the nonmoving party fails to “‘present evidence that demonstrates that material facts are in dispute’” (quoting Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 515-16, 799 P.2d 250 (1990))
- discussing Washington’s historically narrow interpretation of RCW 51.24.020
Written by the judges who cited it.
The opinion
¶47 (dissenting) — The majority is faithful to dicta in Birklid v. Boeing Co., 127 Wn.2d 853 , 904 P.2d 278 (1995) to the effect that more is necessary than a “substantial certainty” that an employee’s job assignment will cause injury to demonstrate a “deliberate intention of his or her employer to produce such injury,” RCW 51.24.020, to maintain a cause of action directly against the employer. But in light of the Birklid holding, I question Birklid’s distinction in dicta between an injury “certain” to occur and one which is “substantially certain.” Either we should return to the rule equating statutory “deliberate intention” with an assault by the employer on the employee, as in Perry v. Beverage, 121 Wash. 652 , 209 P. 1102 , 214 P. 146 (1922), and overrule Birklid; or we should recognize a more reasonable application of the Birklid holding to apply to instances where the employer knowingly places the employee in a situation where injury will be the highly probable result— such as the instant case. Such would simply be a factual question for the trier of fact.
Sanders, J.
*37 ¶48 Here R.M. injured the staff approximately 96 times during the 1999-2000 school year. From September 14 to December 31, 1999, when Vallandigham and Clarke suffered most of their injuries, 6 R.M. injured the staff approximately 76 times. To place any employee in a classroom where a student inflicts injuries with this regularity demonstrates school district personnel must have known injury to the teacher was inevitable, or nearly so. But the majority would deny a direct cause of action, claiming absolute certainty of injury is the minimum standard.
¶49 Pushing the level of predictability required into the stratosphere makes the rule unworkable and calls into question its application in Birklid. After all, perhaps a Boeing employee would miss work because he got sick or went on vacation, and thus would not become ill as a result of the toxic fumes. We cannot be absolutely certain. It is very predictable, to be sure, but so is R.M.’s behavior in this case. I am at a loss to explain the different outcomes.
¶50 Several biblical examples might also be in order. To cover his sin with Bathsheba, King David ordered Joab, his general, to place Uriah on the front lines of the battle so that he would be killed. 2 Samuel 11:14-15. But is it certain that a soldier placed on the front lines will die in battle during a siege? No. Perhaps the soldier would have received a minor wound early on that would have prevented his engaging the enemy during the heat of the battle. Or maybe he would have caught a sudden illness that kept him bedridden. The risk of certain harm is absent, but the reason for the front line reassignment is pretty unmistakable.
¶51 Similarly, King Darius ordered Daniel to be thrown into the lions’ den. Daniel 6:16. Daniel did not die because God shut the lions’ mouths. Daniel 6:22. This supernatural exception to the general rule was clearly illustrated by the *38 lions’ crushing Daniel’s accusers before they even hit the ground. Daniel 6:24. In Daniel’s case, God intervened to save him. But applying the majority’s rule leaves me wondering if this kind of situation would be sufficiently certain to warrant relief under RCW 51.24.020. After all, lions have a free will and their actions are less than absolutely predictable.
¶52 Unfortunately, future applications of the majority’s rule are also less than certain. It may very well be true that the statutory use of the term “deliberate intention” means the specific intent to harm the employee. If that were the rule, and I think it was prior to Birklid, then it is a rule which can be reasonably and predictably applied. However the expansive dicta of Birklid seems to be more of an effort to sugarcoat a bad result for the employer in nonessential verbiage suggesting it would not happen again. And the majority opinion in this case is what results.
¶53 When all is said and done, I cannot reasonably discern a distinction between dispatching an employee likely to be injured by hazardous fumes and dispatching a teacher to accompany an uncontrollable, assaultive student.
¶54 Thus I dissent.
Chambers, J., concurs with Sanders, J.
Reconsideration denied June 9, 2005.
These people suffered significant injures. R.M. head-butted Vallandigham, causing her to fall over and strike her head against a counter. She lost consciousness. The next day he bit Clarke on the breast, leaving a mark. These examples are merely the most serious of numerous injuries sustained.