Monday, June 24, 2019
Thomas Robinson has a good post up on a recent Oklahoma Supreme Court opinion, Wells v. Oklahoma Roofing & Sheet Metal. The wrongful death opinion, very simply stated, holds that the Oklahoma workers’ compensation statute does not encompass intentional conduct. In other words, an intentional tort action against an employer for workplace injury is not foreclosed as a matter of law. I’ll broach the concept of “intentional” in a moment but will note at the outset that when state courts take on such a case, there are two basic approaches they tend to utilize. One is to take on the question of legislative supremacy directly: could a legislature constitutionally make intentional tort actions against employers unavailable to their injured employees? That approach triggers the expected equal protection, due process, remedies/open courts and special laws analyses. Another approach, however, is to employ some kind of constitutional avoidance canon: “we need not reach the constitutional question if the legislature did not intend to impinge on the right in question.” Mr. Robinson seems to think (at least my reading of his post suggests this to be his view) that the Oklahoma Supremes somewhat weakly opted for avoidance where the evidence firmly suggests the legislature “intended” to place the legislative supremacy question front and center. I’m inclined to agree with him. The conclusion of the opinion states, at ¶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.
As to intent generally, in law school tort classes we customarily begin our discussion of the concept of intentional conduct with the case of Garratt v. Dailey (whose holding was essentially later incorporated in various restatement formulations), in which a child pulls a chair out from under a descending woman, the woman thereafter making harmful contact with the ground. The case stands for the proposition that one is liable for an intentional tort where one engages in conduct with the purpose of causing a harmful or offensive contact with another, or where one acts with knowledge to a substantial certainty that such a contact will occur (and where the conduct does actually occur). The workers’ compensation quid pro quo is normally conceived as applying only to negligence (careless rather than intentional conduct) under the simple rationale that an intentional act, by definition, cannot be an accident. If workers’ compensation is meant to cover only “injuries by accident” then intentional torts would appear exempted. The problem with this analysis is, first, that not all statutes define workers’ compensation eligible injuries in terms of “accident” (Maine, Massachusetts, and Wyoming are examples). Second, whether an actor (in this case, an employer) “knew to a substantial certainty” that a harm would occur is a product of inference, and with inference (think, the “totality of the circumstances”) comes uncertainty and unpredictability.
Historically, the English Act allowed for employee election of a tort action in all cases (Ch. 37, 2(b) (1897)), so there was no question that workers’ compensation remedies under the original English statute were elective (and that an intentional tort court case remained available). Closer to home, the Wisconsin Act of 1911 excluded from workers’ compensation coverage the willful misconduct of the employer (Sec. 2394-4(3)), and the prototypical New York statute (shopped around the country in 1910, see my article here) upheld by the Supreme Court in 1917 covered under workers’ compensation only accidental injuries (Ch. 41, Art. 1, Sec. 3(7)). I have not fully researched all of the early statutes on the point but have reasonable suspicion that exclusion of intentional and willful conduct from coverage by the early workers’ compensation acts was the clear majority rule.
This does not address the question of whether a state could constitutionally simply eliminate intentional torts for injured workers (or anyone else, for that matter). I think the answer is “no,” though Ohio may have effectively done so by defining the “substantially certain” concept as an act “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” The circularity of the definition is at once apparent to a practitioner of logic (intent=substantial certainty=deliberate intent), and I think the Oklahoma statute under consideration was trying to adopt something like the Ohio approach. But here is the thing: courts will resist, as long as they can, having to answer these legislative supremacy questions, reading the statutory text in some (any?) manner that leaves the intentional tort theory possible. It is like the White dicta, “it may be doubted whether the legislature could sweep away all such actions, but we do not think in any event that is what happened here.” Workers’ compensation itself was originally substantially upheld, after all, as a matter of federal constitutional law, under the avoidance canon. (“We assume without deciding remedies are adequate.”) There is a welter of state jurisdictional definitions of the scope of the exclusive remedy rule which, considered broadly, suggests little enthusiasm for sweeping intentional tort completely into the exclusive remedy rule. Legislatures seem generally to accept such an evisceration could lead to underdeterrence of dangerous behavior.
Michael C. Duff