Davis v. CMS Continental Natural Gas, Inc.

23 P.3d 288

2001 OK 33

Whitney DAVIS, a Minor, and Tiffany Davis, a Minor, by and through their Mother and Next Friend, Brenda Davis, Plaintiffs/Appellants, v. CMS CONTINENTAL NATURAL GAS, INC., Defendant/Appellee.

No. 94,787.

Supreme Court of Oklahoma.

April 17, 2001.

As Corrected May 7, 2001.

David L. Thomas, Oklahoma City, OK, for Plaintiffs/Appellants.

Angela K. Jones, F. Thomas Cordell, Jr., Chickasha, OK, for Defendant/Appellee.

KAUGER, J.:

¶ 1 We retained this cause to consider whether the exclusivity provision, 85 O.S. 1991 § 12,¹ of the Workers Compensation Act, 85 O.S.1991 § 1, et seq., precludes the plaintiffs/appellants, Whitney and Tiffany Davis through their mother, Brenda Davis [collectively, Davis], from recovering tort damages pursuant to 40 O.S.1991 § 178.² We determine that 40 O.S.1991 § 178 retains viability as it relates to occupations exempted from the Workers' Compensation Act. Nevertheless, under the undisputed facts presented, we hold that the employee's recovery is limited to that provided under the Workers' Compensation Act.

UNDISPUTED FACTS

¶ 2 On June 18, 1997, Thomas Davis [father/employee] was killed in a work related accident while on the premises of the defendant/appellee, CMS Continental Natural Gas, Inc. [Continental Gas/employer]. The employee died instantly when a blow-down valve assembly, attached to a natural gas compressor package, blew apart.

¶ 3 Davis filed suit on September 23, 1999, seeking recovery pursuant to 40 O.S. 1991 § 178. Although the petition contains allegations of the employer's negligence and wilful and wanton actions evincing a reckless disregard for the employee's safety, Davis concedes that it lacks evidence of the employer's wilful and wanton conduct.³ Admissions in the brief may be regarded as a supplement to the appellate record. Oklahoma City Urban Renewal Auth. v. Medical Technology & Research Auth. of Oklahoma, 2000 OK 23, ¶ 14, 4 P.3d 677; Wright v. Grove Sun Newspaper, Inc., 1994 OK 37, ¶ 2, 873 P.2d 983; Kwikset/Emhart v. Mayberry, 1990 OK 112, ¶ 3, 800 P.2d 239. Relying on the exclusivity provision, 85 O.S.1991 § 12, of the Workers' Compensation Act, 85 O.S.1991 § 1, et seq., Continental Gas filed a motion for summary judgment which was sustained by the trial court, Honorable Carolyn Ricks, on February 24, 2000. We retained the cause on July 5, 2000.

I.

¶ 4 TITLE 40 O.S.1991 § 178 REMAINS APPLICABLE IN THE WORKERS' COMPENSATION ARENA TO THOSE OCCUPATIONS EXEMPTED FROM THE WORKERS' COMPENSATION ACT.

¶ 5 Continental Gas asserts that 40 O.S.1991 § 178 was implicitly repealed in 1915 with the enactment of the Workers' Compensation Act. We disagree.⁴ ¶ 6 Under 40 O.S.1991 § 178, an employee injured in the workplace and exercising due care and diligence, may sue an employer for negligence based on defective machinery or appliances. Section 178 has been considered in eight⁵ cases since the passage of the original workers' compensation regime. In none of those cases did the Court reach the issue of repeal by implication. However, in Roberts v. Barclay, 1962 OK 38, ¶ 20, 369 P.2d 808, the Court refused to allow an employee injured through negligence to maintain a cause of action against his employer under § 178. The Roberts Court relied on an Illinois case indicating that the enactment of Illinois' respective Workers' Compensation Act had "amended" a similar statutory provision.

¶ 7 Implicit in the Roberts holding is a determination that, although inapplicable to the facts presented in the cause, § 178 retained legal viability. Nevertheless, Roberts also stands for the proposition that, in the workers' compensation arena, an employee may not utilize 40 O.S.1991 § 178 as grounds for recovery if the employers' actions are negligent.

¶ 8 There are a number of occupations excluded from workers' compensation coverage.⁶ Repeal by implication is not favored and all statutory provisions must be given effect unless an irreconcilable conflict exists.⁷ Therefore, we determine that although 40 O.S.1991 § 178 is inapplicable to those professions falling within the confines of the Workers' Compensation Act where an employee's injury is accidental, the statute retains viability in relation to those occupations exempted from workers' compensation coverage.

II.

¶ 9 THE IMMUNITY AFFORDED EMPLOYERS FUNDER 85 O.S.1991 § 12 EXTENDS TO ACCIDENTAL PERSONAL INJURY OR DEATH ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT. THE EMPLOYEE'S CONCESSION THAT THERE IS NO EVIDENCE OF THE EMPLOYER'S WILFUL AND WANTON CONDUCT PRECLUDES RECOVERY IN TORT.

¶ 10 Davis argues that tort recovery is available pursuant to 40 O.S.1991 § 178 because the blow-down value which caused the employee's injury was defectively designed. Continental Gas asserts that the tort action is barred by the exclusivity provision, 85 O.S.1991 § 12, of the Workers' Compensation Act. Under the facts presented, we agree that the tort action is barred. ¶ 11 Section 11⁸ of the Workers' Compensation Act makes employers liable for scheduled compensation for the disability or death of an employee resulting from an "accidental personal injury." As defined, "injury or personal injury" means "only accidental injuries."⁹ The exclusivity provision, 85 O.S. 1991 § 12, provides that the liability prescribed in § 11 — liability for accidental injury — shall be exclusive and in place of all other employer liability.

¶ 12 The statutory language makes it clear¹⁰ that the Legislature intended that accidental injuries should fall within the confines of the Workers' Compensation Act and that an employer's liability for these injuries would be exclusive under 85 O.S.1991 § 12.

¶ 13 Nevertheless, we note that a large number of courts have determined that their respective workers' compensation regimes will not bar an employee's claim for injuries arising from an employer's deliberate, wilful or intentional acts.¹¹ In jurisdictions where the statutory language is similar to Oklahoma's, there is a split of authority on what conduct will support a tort action against an employer for intentional conduct. Some courts limit recovery to the so called "true intentional torts" — situations where the employer intended the act and intended the injury.¹² Under this standard an employer is deemed to have intended an injury if the employer had knowledge an incident was certain to occur and wilfully disregarded that knowledge.¹³

¶ 14 Other jurisdictions rely on a "substantial certainty test" and determine that if the employer intended the act that caused the injury or knew the injury was substantially certain to occur from the act, the employer has committed an intentional tort.¹⁴ Under the "substantial certainty" standard, intent is not limited to desired consequences. It is broader than a hope or purpose to bring about physical results. Rather, if the actor knows that the consequences are certain, or substantially certain to occur, intent is inferred.¹⁵ Nevertheless, establishing that an employer has acted in a manner resulting in an employee's injuries being substantially certain presents a formidable barrier to recovery in tort. Employer negligence is insufficient for a finding of substantial certainty required to strip the employer from the exclusive remedies offered by the Workers' Compensation Act. At the very least, the employee must establish an employer's intentional conduct engaged in with the knowledge that the employee's serious injury or death is a substantial certainty.¹⁶

¶ 15 Although Davis' petition filed in the trial court contains allegations of the employer's negligence and wilful and wanton actions evincing a reckless disregard for the employee's safety, Davis conceded in the response to the motion for summary judgment that there is no evidence of the employer's wilful and wanton conduct.¹⁷ Further, his allegations concerning the defective design and installation of the blow-down valve are premised on the employer's negligence.¹⁸ Therefore, we need not determine whether an employer may act with such reckless disregard¹⁹ of the known facts as to be subject to tort liability independent of the Workers' Compensation Act.²⁰ In this case, we hold that nothing is presented which would allow, under any standard, the employee's recovery outside that provided under the Workers' Compensation Act.

CONCLUSION

¶ 16 The immunity afforded employers under 85 O.S.1991 § 12²¹ extends to accidental personal injury or death arising out of and in the course of employment. Davis concedes that he cannot establish that his injuries resulted from the employer's wilful and wanton conduct. Viewing the evidence in the light most favorable to the employee,²² we determine that summary judgment was proper.

AFFIRMED.

¶ 17 WATT, V.C.J., LAVENDER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

¶ 18 HARGRAVE, C.J., HODGES, OPALA, JJ., concurring in judgment.

1. Title 85 O.S.1991 § 12 provides in pertinent part:

"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 dependent of the employee, or any other person . . ."

2. Title 40 O.S.1991 § 178 provides:

"An employer shall be responsible in damages for personal injury caused to an employee, who, was himself in the exercise of due care and diligence at the time he was injured, by reason of any defect in the condition of the machinery or appliances connected with or used in the business of the employer which arose, or had not been discovered or remedied owing to the negligence of the employer, or of any person entrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper...