Summary
addressing intentional-injury exception to exclusive remedy
Summary of this case from In re YRC Inc.Opinion
No. 18-0852
06-12-2020
MO-VAC SERVICE COMPANY, INC., Petitioner v. Primitivo ESCOBEDO, Individually, San Juanita Escobedo, Individually, and Martha Escobedo, Individually and as Representative of the Estate of Fabian Escobedo, Respondents
J. Joseph Vale Jr., Mike Mills, Susan R. Sullivan, Atlas, Hall & Rodriguez, L.L.P., 818 Pecan Ave., McAllen, TX 78501, for Petitioner. Armando P. Duran, Armando P. Duran, PLLC, P.O. Box 516, Alamo, TX 78516-0516, Stuart J. Starry, The Starry Law Firm, PLLC, 1500 N. Big Spring, Midland, TX 87047, for Respondents. Elizabeth G. Bloch, Greenberg Traurig, LLP, 300 West 6th Street, Suite 2050, Austin, TX 78701, for Amicus Curiae Associated General Contractors of Texas—Highway, Heavy, Utilities & Industrial Branch. Thomas C. Wright, Wright Close & Barger LLP, One Riverway, Suite 2200, Houston TX 77056, for Amicus Curiae Berkel & Company Contractors, Inc. Danica Lynn Milios, Jackson Walker L.L.P., 100 Congress Ave., Suite 1100, Austin, TX 78701, Jennifer Caughey, Jackson Walker LLP, 1401 McKinney, Suite 1900, Houston, TX 77010, for Amici Curiae Martin Resource Management Corporation, Southern Multifoods, Inc., Texans for Lawsuit Reform, Texas Association of Business, Texas Automobile Dealers Association. Russell S. Post, Beck Redden LLP, 1221 McKinney Street, Suite 4500, Houston, TX 77010-2010, for Amici Curiae Tyler Lee and Leigh Ann Lee, Individually and as Next Friend of Sydney Rose Lee, Minor.
J. Joseph Vale Jr., Mike Mills, Susan R. Sullivan, Atlas, Hall & Rodriguez, L.L.P., 818 Pecan Ave., McAllen, TX 78501, for Petitioner.
Armando P. Duran, Armando P. Duran, PLLC, P.O. Box 516, Alamo, TX 78516-0516, Stuart J. Starry, The Starry Law Firm, PLLC, 1500 N. Big Spring, Midland, TX 87047, for Respondents.
Elizabeth G. Bloch, Greenberg Traurig, LLP, 300 West 6th Street, Suite 2050, Austin, TX 78701, for Amicus Curiae Associated General Contractors of Texas—Highway, Heavy, Utilities & Industrial Branch.
Thomas C. Wright, Wright Close & Barger LLP, One Riverway, Suite 2200, Houston TX 77056, for Amicus Curiae Berkel & Company Contractors, Inc.
Danica Lynn Milios, Jackson Walker L.L.P., 100 Congress Ave., Suite 1100, Austin, TX 78701, Jennifer Caughey, Jackson Walker LLP, 1401 McKinney, Suite 1900, Houston, TX 77010, for Amici Curiae Martin Resource Management Corporation, Southern Multifoods, Inc., Texans for Lawsuit Reform, Texas Association of Business, Texas Automobile Dealers Association.
Russell S. Post, Beck Redden LLP, 1221 McKinney Street, Suite 4500, Houston, TX 77010-2010, for Amici Curiae Tyler Lee and Leigh Ann Lee, Individually and as Next Friend of Sydney Rose Lee, Minor.
Chief Justice Hecht delivered the opinion of the Court.
The Texas Workers' Compensation Act (the Act) provides that statutory benefits are the exclusive remedy for a covered employee or his legal beneficiary against his employer for work-related injury or death. But in upholding the Act in 1916, three years after it was passed, we excepted an action for intentional injury to an employee that we viewed as protected by the Texas Constitution's Open Courts provision. The Legislature has never codified or rejected that intentional-injury exception to the Act's exclusive remedy, and we have reaffirmed it.
Tex. Lab. Code § 408.001(a) ("Recovery of workers' compensation benefits is the exclusive remedy of an employee covered by workers' compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee."). An exception in § 408.001(b) for certain wrongful death actions is not involved in this case.
Tex. Const. art. I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law."); Middleton v. Tex. Power & Light Co. , 108 Tex. 96, 185 S.W. 556, 560 (1916) ("It is ... not to be doubted that the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another. Such a cause of action may be said to be protected by [Article I, § 13 of] the Constitution and could not be taken away; nor could the use of the courts for its enforcement be destroyed.").
The current Act was adopted in 1993. Wausau Underwriters Ins. Co. v. Wedel , 557 S.W.3d 554, 562 (Tex. 2018). Three years later, in Medina v. Herrera , 927 S.W.2d 597, 600 (Tex. 1996), we noted that "[t]here is no express provision in either [the current Act] or the former act expressly excluding coverage for an injury resulting from an employer's intentional tort", but we concluded that the current Act "embodies the rule of Middleton and its progeny."
Relying on the Restatement (Second) of Torts , we have defined intent as having two parts, one purposive—that "the actor desires to cause consequences of his act"—and the other shown by his "belie[f] that the consequences are substantially certain to result from it." The latter component has proven difficult to apply, in Texas and elsewhere, especially in workers' compensation cases. The case before us presents the opportunity to provide clarification.
Reed Tool Co. v. Copelin , 689 S.W.2d 404, 406 (Tex. 1985) (quoting Restatement (Second) of Torts § 8A (1965) ).
See Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. a (2010).
We reverse the judgment of the court of appeals and render judgment for the petitioner employer.
592 S.W.3d 467 (Tex. App.—Corpus Christi–Edinburg 2018).
I
Petitioner Mo-Vac Service Company, Inc. is a trucking and warehousing company servicing the oil patch from several Texas cities including Dilley, a small town some 70 miles southwest of San Antonio. Mo-Vac employed more than 30 drivers operating out of the Dilley yard, hauling liquids to and from drilling sites in eighteen-wheeler tanker trucks. One of them, Fabian Escobedo, 48, a 12-year employee, died when his rig ran off the highway and rolled over in the early morning hours of May 30, 2012. His estate representative is suing to recover damages for his pain and suffering before he died.
See Tex. Civ. Prac. & Rem. Code § 71.021(b) ("A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person."). Escobedo's parents, Primitivo and San Juanita Escobedo, and his sister and estate representative, Martha Escobedo, sued Mo-Vac for wrongful death and breach of Escobedo's employment agreement. Section 408.001(b) of the Act excepts from its exclusive remedy an action for "recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence." The Escobedos are not the decedent's surviving spouse or heirs of his body and thus lack standing to sue under that provision. The trial court granted summary judgment for Mo-Vac on those claims, and the court of appeals affirmed. The Escobedos have not complained of that ruling here.
Plaintiff contends that Escobedo fell asleep at the wheel due to fatigue from being forced to work grueling hours. Mo-Vac is a subscriber to the workers' compensation system. As we explain more fully below, Plaintiff can succeed only by proving that Mo-Vac intentionally caused Escobedo's accident in the sense that it believed the accident was "substantially certain to result" from his being overworked. There is evidence that Mo-Vac forced Escobedo to work excessive hours. The question is whether there is any evidence that Mo-Vac believed his accident was substantially certain to result.
Reed Tool , 689 S.W.2d at 406 (quoting Restatement (Second) of Torts § 8A ).
Escobedo's time records show that in the eight days leading up to the accident, he worked 137 hours, averaging 17 hours a day. He worked 20 hours three days before the accident, 14 hours two days before, and 19 hours the previous day—in total, all but 19 hours out of 72. Plaintiff's expert estimated that the day before the accident, Escobedo had only a few hours' rest before leaving the Dilley yard about 9:00 p.m. to make deliveries at two wellsites. The expert further estimated that Escobedo arrived at the first well about 9:30 p.m. and the second about 1:30 a.m., staying an hour at each. He traveled a two-lane state highway that he knew well. About 3:00 a.m., 30 minutes into his three-hour return to Dilley, Escobedo rounded a slight curve to the left in a rural area, struck a delineator pole, and veered onto the improved right-hand shoulder and a grassy area. He tried to swerve back onto the highway but overcorrected, rolling his truck and trailer. He was not wearing a seat belt and died of positional asphyxia.
A driver's total number of hours is not necessarily commensurate with the time the driver spent on the road driving. In 2012, federal and state truck driving regulations allowed companies to pay drivers and bill customers for "off duty waiting" time in line on the oilfield, which did not count against drivers' maximum hours. Mo-Vac introduced testimony that drivers often slept or rested while waiting on site. In the two days before Escobedo's accident, he logged 22.5 hours of "off duty" or "off duty waiting" time.
Mo-Vac was pushing all its drivers hard to keep up with business demands in the west and south Texas oil boom. Their working conditions are described in an affidavit by their manager, Urbano Garza, as follows.
Garza admitted that though he was Escobedo's terminal manager at the time of his death, "I ... was on personal leave vacation at the time of his death." Nevertheless, he added, he was "familiar with the accident and its cause ... [,] was involved in the company's (limited) investigation of the crash and its cause, and ... was intimately familiar with the company's driving, overtime, rest, and dispatch policies at the time of the crash."
Garza stated that he was "forced" by "clear directive" from upper management "to have the drivers work unsafe hours rather than let a competitor get the jobs which were demanded by our customers." Even though it was "obviously unsafe to nearly everyone in company management," Mo-Vac drivers were "routinely working 100 hours or more per week" and "19 to 24 hours straight—day after day." "It was becoming insane." If he "mentioned it as a concern", Garza said, he "would get an ‘ear full’ or a verbal reprimand from [his] supervisors about keeping production up at all costs." Because Mo-Vac was not adding enough drivers, "[m]aking the current drivers do overtime was the only way to get the production higher." In the frenzied months before Escobedo's accident, he had logged as many as 138 hours of overtime for a two-week pay period and other drivers logged even more. The record reflects that several Mo-Vac drivers had logged well over 200 hours of overtime in a single paycheck period.
According to Garza, Mo-Vac knew its drivers' hours violated state standards and encouraged them to "alter their work logs to appear that they were in compliance with DOT sleep and rest regulations". Mo-Vac's compliance clerk, Garza said, reportedly walked drivers "through the process of cheating" on their logs, moving work from one day to another. The clerk told drivers that doing so would "make it appear that they did not exceed the number of straight hours worked" without rest. Garza stated that senior management "indicated that they were aware of the practice and nevertheless encouraged it." When supervisors expressed safety concerns, they were "shut down" by management. Garza said Mo-Vac's operations manager, Mike Flanagan, "would tell me to get the numbers [of driving hours] up and told me to simply tell the drivers ‘don't get killed out there.’ " Garza was kept so busy managing the production Mo-Vac "insisted upon" that it was "impossible for [him] to monitor" the hours of "each and every one of the drivers."
Garza's affidavit continues:
When I mentioned to Mr. Flanagan that one of our drivers was going to get killed because of our insistence on unreasonable driving hours, he said to me: "we will cross that bridge when we come to it." His verbal statements and interactions with me and other staff members demonstrated to me that he was clearly anticipating an eventual injury or death, but intentionally pressed for more production because of the opportunity to make immediate money. By his actions and statements he made it clear that he did not want anything (including compliance with safe rest periods) to get in the way. From what I personally observed of upper management's behavior at MoVac in 2012, and at the time of Mr. Escobedo's death, they demonstrated verbally that they were plainly aware of the substantial certainty that one of my drivers, including Mr. Escobedo, would be injured or killed due to overwork. What I witnessed was not mere carelessness or recklessness. It was intentional conduct that I observed. They made it clear, through their actions and words, that they were more concerned with the immediate prospect of making money—even when I verbally confronted them with the clear and certain tragedy waiting to happen. Mr. Flanagan was not simply dismissive of the possibility of a crash—instead, on more than one occasion, he acknowledged to me his awareness that a crash was inevitable and indicated to me that we should press on with getting the production up, because there was money to be made.
To make matters worse, Garza stated, drivers had poor sleeping conditions. Trucks did not have sleeper berths, and Mo-Vac encouraged drivers "to sleep on a sheet of plywood stretched across their seats." "[W]orking long hours", he said, "it [wa]s difficult to get by with catnaps". Mo-Vac managers "knew this, and really did not care."
"Based on what I observed as company policy and practice," Garza concluded, "the cause of Mr. Escobedo's death was fatigue caused by an intentional practice of overworking drivers and falsifying logs."
[F]rom what I observed, it would be simply impossible for the management at MoVac to have been unaware in May of 2012 that they were going to cause an injury or death. They intentionally placed my drivers, including Mr. Escobedo, in a situation that they acknowledged was substantially certain to injure or kill one of the drivers. They wanted to make money. From what I observed, Mr. Escobedo's death was caused by greed.
Mo-Vac objected to much of Garza's affidavit as conclusory and hearsay, but for purposes of our analysis, we take it as admissible and true.
The trial court granted Mo-Vac's no-evidence motion for summary judgment. The court of appeals reversed and remanded, concluding that whether Mo-Vac believed its conduct was substantially certain to cause Escobedo's death remained an issue of fact.
592 S.W.3d 467, 478 (Tex. App.—Corpus Christi–Edinburg 2018).
We granted Mo-Vac's petition for review. II
Plaintiff does not contend that Mo-Vac purposefully killed Escobedo but instead that Mo-Vac believed his accident was substantially certain to result from being overworked.
A
"The Texas Legislature enacted the Act in 1913 in response to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied recovery." "Covered employees sustaining work-related injuries are guaranteed prompt payment of their medical bills and lost wages without the time, expense, and uncertainty of proving liability under common-law theories." The employee may "recover without establishing the employer's fault and without regard to the employee's negligence." "In exchange, the Act prohibits employees from seeking common-law remedies from their employers by making workers' compensation benefits an injured employee's exclusive remedy." "The Act ultimately struck a bargain that allows employees to receive ‘a lower, but more certain, recovery than would have been possible under the common law.’ "
Kroger Co. v. Keng , 23 S.W.3d 347, 349 (Tex. 2000).
TIC Energy & Chem., Inc. v. Martin , 498 S.W.3d 68, 72 (Tex. 2016).
Kroger Co. , 23 S.W.3d at 349.
TIC Energy , 498 S.W.3d at 72–73.
SeaBright Ins. Co. v. Lopez , 465 S.W.3d 637, 642 (Tex. 2015) (quoting Kroger Co. , 23 S.W.3d at 350 ).
Whether that bargain "violate[d] any of [employers' or employees'] fundamental rights" was decided by this Court three years later in Middleton v. Texas Power & Light Co. Analyzing the Act and its consequences in detail, we easily answered no for employers because the Act left them "free to adopt its plan of compensation, or remain ungoverned by it." As for employees, we held that the Legislature could substitute statutory remedies for those at common law. But "[h]ere", we said, "the character of injuries, or wrongs, dealt with by the Act becomes important. Notwithstanding the breadth of some of its terms, its evident purpose was to confine its operation to only accidental injuries, and its scope is to be so limited." Noting that Article I, § 13 of the Texas Constitution preserves for "every person for an injury done him ... [a] remedy by due course of law", we stated that it was
108 Tex. 96, 185 S.W. 556, 559 (1916).
Id.
Id. at 560.
Id.
not to be doubted that the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another. Such a cause of action may be said to be protected by the Constitution and could not be taken away; nor could the use of the courts for its enforcement be destroyed. This Act does not affect the right of redress for that class of wrongs. The injuries, or wrongs, with which it deals are accidental injuries or wrongs.
Id.
Both the Act and the Constitution drew a distinction between accidental and intentional injuries. Article XVI, § 26 of the Constitution provided, as it still does, that "[e]very person...that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving [spouse and the] heirs of his or her body". The 1913 Act excepted such actions from its exclusive remedy. Critical to our assessment of the Act's balance of employers' and employees' competing interests was its limitation to accidental injuries.
Tex. Const. art. XVI, § 26.
Act of Mar. 29, 1913, 33d Leg., R.S., ch. 179, § 5, 1913 Tex. Gen. Laws 429, 430. The exception is now codified as § 408.001(b) of the Act. As explained in footnote 7, Plaintiff is ineligible to sue under that provision.
The exclusive-remedy provision is essential to the Act's continued success. As we wrote in Reed Tool Co. v. Copelin , "[i]f employers are required to provide not only workers' compensation but also to defend and pay for accidental injuries, their ability to spread the risk through reasonable insurance premiums is threatened, and the balance of advantage and detriment [between employers and employees] would be significantly disturbed." The Legislature has amended the Act many times since 1913. It has never codified or rejected Middleton 's intentional-injury exception. After an overhaul of the Act in 1993, we noted that "[t]here is no express provision in either [what is now the current Act] or the former act expressly excluding coverage for an injury resulting from an employer's intentional tort." We concluded that the current Act "embodies the rule of Middleton and its progeny."
689 S.W.2d 404, 407 (Tex. 1985).
Medina v. Herrera , 927 S.W.2d 597, 600 (Tex. 1996).
Id.
B
We did not have occasion to interpret Middleton 's intentional-injury exception until 1985 in Reed Tool . There, a Reed Tool machine shop employee, Copelin, was injured when a chain tong on a lathe he was operating hit him in the head, leaving him severely brain-damaged and in a coma. Copelin's wife sued, alleging that Reed Tool had intentionally injured Copelin by requiring him to operate a machine despite knowing that it was defective and unsafe and that he was not properly trained. She further alleged that Reed Tool required him to work long hours in violation of applicable regulations.
We began by defining intentional injury. We first distinguished intent from other mental states. "The fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury", we said, "is the specific intent to inflict injury." We then looked to the Restatement (Second) of Torts , which defined intent to mean that "the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." In the first part of the definition, the actor is purposeful, as for example, if he drew back and slugged his victim on the jaw. Though the second part of the definition is something less than purposeful, we determined that "[t]he overwhelming weight of authority from other jurisdictions is that the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury." Finally, we observed, quoting one authority:
Reed Tool , 689 S.W.2d at 406.
Id. (quoting Restatement (Second) of Torts § 8A (1965) ).
Id.
Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of its accidental character.
Id. (quoting 2A A. Larson , The Law of Worker's Compensation § 68.13 (1983)).
The results might seem harsh, we conceded, but the determinative factor must be, "not the gravity or depravity of the employer's conduct but rather the narrow issue of intentional versus accidental quality of the injury." The exclusive remedy is critical to the "continued effectiveness of the worker's compensation scheme". "The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later", we said, "[b]ut in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin." Accordingly, we held, "the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury."
Id. at 407.
Id.
Id. (quoting 2A A. Larson , The Law of Worker's Compensation § 68.13 (1982)).
Id.
Plaintiff's evidence of Reed Tool's intent was that "[t]he machine was nicknamed ‘jaws,’ and some employees did not want to operate it"; that "[t]here had been prior injuries on most of the lathes ... as well as that particular machine", but that "[n]one ... was debilitating, disabling, or in any way as serious" as Copelin's; and that "Reed Tool employees sometimes had to work twelve-hour shifts, seven days a week." Copelin's supervisor testified that "Copelin was working 12-hour shifts and looked ‘zonked.’ " While that evidence "might raise a question of fact concerning gross negligence," we said, "it does not raise a question of fact that Reed Tool knew with substantial certainty that [Copelin] would be injured." We reversed the judgment of the court of appeals and affirmed summary judgment for Reed Tool.
Id. at 408.
Copelin v. Reed Tool Co. , 679 S.W.2d 605, 607 (Tex. App.—Houston [1st Dist.] 1984), rev'd , 689 S.W.2d 404, 408 (Tex. 1985).
Reed Tool , 689 S.W.2d at 408.
C
The definition of intent we drew in Reed Tool from the Restatement (Second) of Torts was not original with that edition. It was taken from the discussion of the intentional tort of battery in § 13 of the first Restatement of Torts . Battery was there defined as "[a]n act which, directly or indirectly, is the legal cause of a harmful contact with another's person". One element of the tort was that "the act [be] done with the intention of bringing about a harmful or offensive contact or an apprehension thereof". To be intentional, comment d explained:
Restatement (First) of Torts § 13 (1934).
Id.
the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section.
Id. cmt. d (emphasis added).
The use of "the" and "such" make clear that an actor's intent must be directed toward a particular contact or apprehension, not merely a possibility of some contact or apprehension. This specificity is to be expected for a tort that involves an actor and an identifiable victim.
Section 8A of the Restatement (Second) of Torts extrapolated from comment d a general definition of "intent" which we quoted in Reed Tool : "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Comment b explained that "[i]f 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." The use of "consequences", while appropriate for a more general definition of intent applicable to acts other than battery, raises a subtle ambiguity. Are the "consequences" the ultimate result—for example, a personal injury—or the situation out of which the ultimate result arises? Injuries from motor vehicle accidents are certain to occur. The chances that you will be the injured person, all things being equal, are tiny.
Restatement (Second) of Torts § 8A (1965).
Id. cmt. b.
The third Restatement retains its predecessor's definition of intent with a slightly clarifying change: "A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result." The substitution of "a", "that", and "the" consequence for "consequences" indicates a discrete result more than a general situation. Thus, the third Restatement 's clarified definition confirms what we said in Reed Tool : the actor must intend the specific result, not merely the actions or circumstances leading up to the result.
Restatement (Third) of Torts: Phys. & Emot. Harm § 1 (2010).
See Reed Tool Co. v. Copelin , 689 S.W.2d 404, 406–407 (Tex. 1985) (intentional conduct that only sets the stage for an accidental injury is insufficient); see also Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 605 (Tex. 2016) ("[T]o prove an intentional nuisance, the evidence must establish that the defendant intentionally caused the interference that constitutes the nuisance, not just that the defendant intentionally engaged in the conduct that caused the interference.").
The third Restatement notes the difficulties courts have had applying the second Restatement 's definition of intent in workers' compensation cases. "Often ... the most that can be said is that the employer has created a very dangerous job-site condition that the employer knows will eventually bring about an employee injury. Courts are divided in determining whether [that] situation justifies a tort claim by the employee against the employer under the workers'-compensation intentional-torts exclusion." The Restatement suggests that "[t]he applications of the substantial-certainty test should be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim, or to someone within a small class of potential victims within a localized area."
Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. a. The criminal law must make a similar choice in determining the culpability standard for certain crimes. For example, the Model Penal Code generally "downplays the concept of intent" in favor of the dual standards of "purposely" and "knowingly". Id. (citing Model Penal Code § 2.02(2)(a)–(b) (1985)). For many crimes, either mens rea is sufficient—e.g., murder—but others are not satisfied by mere knowledge and require purpose—e.g., arson. Id. (citing Model Penal Code §§ 210.2, 220.1 ).
Id. cmt. e.
But the localized-area limitation on applying the substantial-certainty test is problematic because it lacks definition. How small must a class of potential victims be? How small the localized area? How attenuated in time, distance, and other factors can the employer's conduct be from the employee's injury? No definite line can be drawn, and while the law is certainly accustomed to vague line-drawing, the balance drawn by the workers' compensation system in providing quicker but limited benefits in exchange for the uncertainties and expense of litigation calls for as much certainty as can fairly be provided.
D
Even if a localized-area limitation on the substantial-certainty test for intent were advisable, we effectively rejected it in Reed Tool . Plaintiff's argument for the intentional-tort exception to the Act's exclusive-benefit provision was that the employee was injured working long hours, in a single workplace, with only a few other employees, on one particular lathe known to be dangerous, by that very danger. This evidence, we very plainly stated, "does not raise a question of fact that Reed Tool knew with substantial certainty that [Copelin] would be injured." For the intentional-tort exception to apply, the plaintiff was required to show that Reed Tool believed it was substantially certain her husband would be injured. The determinative factor, we said, must be, "not the gravity or depravity of the employer's conduct but rather the narrow issue of intentional versus accidental quality of the injury." That certainty is necessary for the exclusive remedy, which, in turn, is critical to the "continued effectiveness of the worker's compensation scheme".
Reed Tool , 689 S.W.2d at 408.
Id. at 407.
Id.
We also said that "[t]he fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury is the specific intent to inflict injury." The third Restatement notes that the characterization, "specific", has not been altogether useful for drawing distinctions in applying the substantial-certainty test. But in Reed Tool we referred to "specific" intent in the sentence immediately preceding our quotation of the definition of intent from the second Restatement . In that context, we meant by "specific" that an employer's belief that injury is substantially certain must be with respect to a particular employee from a definite risk. As we made clear, being overworked in an unsafe job environment is insufficient.
Id. at 406.
Restatement (Third) of Torts: Phys. & Emot. Harm § 1 cmt. a ("Some courts say that to prove an intentional tort for purposes of displacing the workers'-compensation exclusivity rule, the plaintiff must prove the employer's ‘specific’ or ‘actual’ intent to bring about an employee injury. Yet the traditional criminal-law concept of ‘specific intent’ is one that the Model Penal Code omits, finding it confusing and unhelpful. Moreover, given the particular issue raised by the worker injury cases, using the terminology of general versus specific intent is neither evocative nor illuminating.").
Plaintiff argues that requiring this degree of specificity will lead to absurd results. An actor who tosses a bomb with a slow-burning fuse into a roomful of people, Plaintiff suggests, will escape liability because he "did not know precisely when the bomb would explode and which people in the room it would kill." But a lit bomb tossed into a room of people is not merely substantially certain to inflict harm; it is purposive and thus easily qualifies as intentional.
The second Restatement uses a bomb hypothetical to illustrate the substantial-certainty test for intent. Restatement (Second) of Torts § 8A cmt. b, illus. 1 (1965) ("A throws a bomb into B's office for the purpose of killing B. A knows that C, B's stenographer, is in the office. A has no desire to injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort."). We think the better category for this example is purpose because the actor deliberately intended the harmful consequence to those present in the room.
Our decision in Rodriguez v. Naylor Industries, Inc. illustrates the evidence that is needed for the intentional-tort exception. Naylor's employee, Rodriguez, was told by his supervisor, Cameron, to drive a specific delivery truck on a specific 250-mile route from Rockdale to Corpus Christi by way of Port Lavaca. Rodriguez inspected the truck's six tires—two on the front axle and four on the rear—and reported to Cameron that they were cracked and had no tread and that the inner tube was even visible on one. Cameron responded: "That truck has to go to Port Lavaca and then ... to Corpus Monday morning .... Either take it or walk." Some 70 miles into the trip, one of the front tires blew out. Rodriguez hitchhiked four miles to the nearest town, called another Naylor supervisor, Wallace, in Houston, about 100 miles away, and asked him to bring a spare tire. When Wallace arrived, he instructed Rodriguez to replace the ruined front tire with one of the back tires. Though Wallace knew it was illegal to drive the truck without all six tires, he told Rodriguez to continue driving to a place where they could get a new tire. Rodriguez continued the trip with Wallace following him. Sixty miles later, the lone back tire on one side blew out, causing the truck to flip over, injuring Rodriguez.
763 S.W.2d 411, 413 (Tex. 1989).
Id. at 412.
The evidence showed that Cameron had to know that driving the truck in its condition was substantially certain to result in a blowout resulting in a loss of control. Cameron's order to "either drive the truck or walk" showed that he intended Rodriguez to risk the specific danger. When a blowout did occur, Wallace's demand that Rodriguez keep driving also showed that he intended Rodriguez to continue to take a risk that was not only substantially certain but had already occurred once to the same driver in the same truck with the same problem an hour earlier. We held that the evidence raised a fact issue whether Naylor acted with intent. The temptation is for courts to search for ways to avoid harsh results and recompense injury from an employer's egregious behavior. But destabilizing the workers' compensation system is also a harsh result affecting all Texas employers and employees who benefit from it. Based on Reed Tool and consistent with Rodriguez , we hold that for the intentional-tort exception to the exclusive remedy to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.
Id. at 413.
Id.
E
Finally, the Restatement definition of intent we adopted in Reed Tool requires not only that a substantial certainty of a particular injury to a particular employee exist but also that the employer "believe[ ]" that it does. In another context, we have explained that "[i]ntent is thus measured by a subjective standard, meaning the defendant must have actually desired or intended to create the [injury] or must have actually known or believed that the [injury] would result." Of course, the employer need not admit to believing that his actions were substantially certain to result in injury to an employee. In Rodriguez , for example, there was no direct evidence that Naylor was substantially certain a truck tire would blow, injuring Rodriguez. But knowing the condition of the tires, knowing that one had already blown, and knowing that Rodriguez needed to be followed to get a new tire was, we concluded, evidence to raise a fact issue.
Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 605 (Tex. 2016).
III
We turn, then, to whether there is evidence that Mo-Vac believed it was substantially certain Escobedo would fall asleep from overwork while driving the night of his accident.
Plaintiff argues that the testimony in Garza's affidavit that Mo-Vac intentionally demanded that its drivers work illegally long hours and falsify sleep records is sufficient to raise a fact issue as to whether Mo-Vac's intentional acts caused Escobedo's death. Mo-Vac argues that even if it knew it was substantially certain that one of its drivers would crash somewhere, someday, that is insufficient. Plaintiff must produce evidence that raises a fact issue as to whether Escobedo's death was caused by Mo-Vac's intentional acts or omissions as we have interpreted intent under the intentional-injury exception.
Plaintiff's evidence fails to raise a fact issue as to whether Escobedo's accident was substantially certain. Substantial certainty will always be hard to quantify, and because hindsight is 20/20 the assessment is almost unavoidably skewed when the consequence is dire. Our caselaw requires the defendant to know that specific consequences are substantially certain to result from the defendant's conduct to prevent the intentional-injury exception from devolving into a standard of exceptionally egregious gross negligence.
Garza's affidavit indicates that Mo-Vac intended its drivers to work more hours in order to turn more profit, but that does not indicate that Mo-Vac intended a driver be killed on the job. Notably, Garza's affidavit speaks to Mo-Vac's practices and drivers in a general sense and provides no evidence that Escobedo's crash was substantially certain. Mo-Vac may have known that there was an ascertainable statistical chance that some of its drivers would be injured over some period of time and that the number of hours its drivers worked would impact that chance. But this evidence does not indicate that Mo-Vac intended a driver be killed on the job or that Escobedo's crash due to his grueling schedule was substantially certain.
For this reason, Plaintiff's brake fluid analogy misses the mark. Plaintiff likens Mo-Vac's policies to telling the mechanic to stop refilling the hydraulic systems in its trucks to save money. Unlike driving a truck with no brake fluid, which must fail at a certain point in time like the bald tires in Rodriguez , the risks attendant to working long hours are constant every day on every route, indefinitely.
In workers' compensation cases, it is not enough to show that all the defendant's employees were at risk all the time due to overall dangerous job conditions, thus rendering any injury sustained inevitable. As the third Restatement explains, substantial certainty is not established when the identity of potential victims is vague, the time frame involved expansive, and the causal chain connecting conduct and harm relatively attenuated. Here, Escobedo was one of 30 drivers at Mo-Vac's Dilley terminal and one of an unknown total of Mo-Vac drivers. Even if the Dilley number is the relevant number and that number constitutes a "small class of potential victims within a localized area", which we do not suggest, Plaintiff's evidence does not narrow the time frame at all but leaves it impermissibly indefinite. Moreover, the causal sequence the evidence establishes is too attenuated, more akin to the recipe for eventual disaster in Reed Tool than the direct causal chain in Rodriguez .
Reed Tool Co. v. Copelin , 689 S.W.2d 404, 405 (Tex. 1985) (employee's injury was not substantially certain where employer required employees to work long hours and operate dangerous and defective machinery without proper training).
Rodriguez , 763 S.W.2d at 413 (evidence that employer knew condition of tires but required employee to continue driving truck despite one tire blowout raised fact issue under substantial-certainty test).
Likewise, Plaintiff's evidence fails to raise a fact issue that Mo-Vac subjectively believed Escobedo's death was substantially certain to occur. As proof of Mo-Vac's alleged belief, Plaintiff relies on the operations manager's statement that "we will cross that bridge when we come to it" when confronted with Garza's warnings that a driver would get killed. If anything, the operations manager's statement demonstrates Mo-Vac's awareness that a crash was only possible , not that Mo-Vac believed a crash was substantially certain. Indeed, the record reflects that other Mo-Vac drivers had worked significantly longer hours than Escobedo without incident, meaning Mo-Vac had no indication that Escobedo's crash was substantially certain to occur. Garza himself testified that he was too busy to monitor any individual driver's hours, including Escobedo's and that he was on vacation at the time of Escobedo's crash. Further, federal and state truck driving regulations did not count "off duty waiting" time at the site against a driver's maximum hours, and Mo-Vac could pay the driver even if the driver was resting. In the two days before Escobedo's accident, he logged 22.5 hours of "off duty waiting" time, during which he could have been sleeping. Thus, relying only on the total hours Escobedo logged in the days leading up to his accident may paint a misleading picture of his schedule. In sum, Plaintiff's evidence merely shows Mo-Vac's awareness of the commonsense notion that fatigued drivers are more likely to be involved in a crash than well-rested drivers. Plaintiff also cites Garza's claim that Mo-Vac "intentionally" placed drivers in a situation that was "substantially certain" to injure or kill a driver. Though this statement parrots the language of the substantial-certainty test, the affidavit's claims, however troubling they may be, do not provide any specific evidence that Mo-Vac believed that Escobedo's accident was substantially certain.
See cross that bridge when one comes to it , Merriam-Webster Online (2020) (defining the idiom as "to not worry about a possible problem until it actually happens").
See State Farm Fire & Cas. Co. v. S.S. , 858 S.W.2d 374, 378 (Tex. 1993) (substantial certainty is more than "a foreseeable risk which a reasonable person would avoid" (citation omitted)).
In light of this evidence, we hold that Plaintiff failed to raise a fact issue on the applicability of the intentional-injury exception to the exclusive-remedy provision of the Act.
* * * * *
We hold that Plaintiff's evidence does not raise a fact issue under the intentional-injury exception; thus, her claims are barred by the exclusive-remedy provision of the Act. Accordingly, we reverse the judgment of the court of appeals on her survival action and render judgment for Mo-Vac.
Justice Guzman filed a concurring opinion.
Justice Lehrmann did not participate in the decision.
Justice Guzman, concurring.
A hardworking Texan died alone on the side of a highway in a foreseeable accident that likely would not have occurred but for his employer's intentional disregard of laws enacted to protect workers and the public. Though precedent compels me to concur in the Court's conclusion that the Texas Workers' Compensation Act provides the exclusive remedy for the Escobedo family's heart-wrenching loss, I write separately to urge the Legislature to align the Act with Texas's wrongful-death statute by extending the Act's exemplary-damages exception to parents who have lost a child, like the Escobedo family.
See Tex. Civ. Prac. & Rem. Code § 71.004 (Wrongful Death Act's exemplary-damages provision); Tex. Labor Code § 408.001(b) (Workers' Compensation Act's exemplary-damages provision).
When an employee dies because of an employer's gross negligence or intentional acts or omissions, section 408.001(b) of the Workers' Compensation Act authorizes certain family members to recover exemplary damages. If Fabian Escobedo had been a husband or father when he died on the job, his employer, Mo-Vac Service Company, would be accountable under section 408.001(b) for the conduct that likely resulted in his untimely death. But the exemplary-damages remedy in section 408.001(b) is unavailable not because the alleged conduct does not rise to the level of gross negligence but because Fabian had no wife or child to grieve him. By treating some employees as more expendable than others—even when the workplace conditions are the same— section 408.001(b)'s deterrent effect is weakened, and public safety is imperiled. Employers who intentionally, willfully, and repeatedly ignore, thwart, and evade workplace laws should not escape responsibility when the foreseeable consequences of doing so materialize. Section 408.001(b) of the Act imposes consequences for such conduct but leaves a gap that endangers workers and the public. Only the Legislature is empowered to rectify the disparity section 408.001(b) creates. I.
See Tex. Labor Code § 408.001(b) ("This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.").
The Texas Workers' Compensation Act "provides reciprocal benefits to subscribing employers and their employees." The Act's overarching purpose is "to provide employees with certainty that their medical bills and lost wages will be covered if they are injured." The Act's no-fault guarantee offers peace of mind to employees, but in exchange, subscribing employers reap a substantial benefit: the Act bars employees from seeking tort remedies by making workers' compensation benefits the exclusive remedy for death or injury sustained in the course and scope of employment.
TIC Energy & Chem., Inc. v. Martin , 498 S.W.3d 68, 72 (Tex. 2016).
HCBeck, Ltd. v. Rice , 284 S.W.3d 349, 350 (Tex. 2009).
Tex. Labor Code § 408.001(a) ; Martin , 498 S.W.3d at 72-73 ; see Castleberry v. Goolsby Bldg. Corp. , 617 S.W.2d 665, 666 (Tex. 1981).
When an employer is at fault in bringing about an employee's injury, the exclusive-remedy bar may seem harsh, but it is an integral part of a comprehensive legislative scheme. By limiting an injured employee's right to bring a cause of action against an employer in exchange for guaranteed benefits, the Legislature struck a carefully considered balance: assured compensation for workplace injuries without the uncertainty and expense of litigating responsibility. But because the Act focuses on injuries that are broadly categorized as "accidental," we have long recognized that the Texas Constitution prohibits application of the exclusive-remedy bar to intentional injuries.
Tex. Workers' Comp. Comm'n v. Garcia , 893 S.W.2d 504, 521 (Tex. 1995) ("In comparison, the Act—carrying forward the general scheme of the former act—provides benefits to injured workers without the necessity of proving negligence and without regard to the employer's potential defenses. In exchange, the benefits are more limited than the actual damages recoverable at common law.").
Id. at 511 ("Employees injured in the course and scope of employment could recover compensation without proving fault by the employer and without regard to their or their coworkers' negligence."); Reed Tool Co. v. Copelin , 689 S.W.2d 404, 407 (Tex. 1985) ("The system balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions against the advantage to employees of relatively swift and certain compensation without proof of fault.").
Middleton v. Tex. Power & Light Co. , 108 Tex. 96, 185 S.W. 556, 560 (1916) ; see Tex. Const. Art I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.").
In 1916, just three years after the Legislature enacted the Workers' Compensation Act, we held "the Legislature is without the power to deny the citizen the right to resort to the courts for the redress of any intentional injury to his person by another." Because "[t]his cause of action is guaranteed to the employee by the Texas Constitution and cannot be taken away by the Legislature," the Workers' Compensation Act's exclusive-remedy provision does not bar a suit for intentional injuries. Correspondingly, when an employee dies from an intentionally inflicted on-the-job injury, the Act does not bar the decedent's estate from pursuing a cause of action against the employer. As the Court observes, the intentional-injury exception is exceptionally narrow and has never been codified.
Middleton , 185 S.W. at 560.
Castleberry , 617 S.W.2d at 666.
Middleton , 185 S.W. at 560.
Castleberry , 617 S.W.2d at 666.
Ante at 120–21, 128–29, 130–31.
Over the years, the exception's contours have been shaded through its application to specific facts. For example, we have explained that even when an employee's injury is "caused by [the] willful negligence or willful gross negligence" of her employer, the employer's actions do not give rise to an intentional-injury claim for purposes of the exception. We have also held that "the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury." Adding to that, we have recognized myriad other scenarios that would not support a claim under the intentional-injury exception: (1) "the intentional modification or removal of safety controls or guards"; (2) "[t]he intentional violation of a safety regulation"; (3) "the intentional failure to train an employee to perform a dangerous task"; or (4) "[r]equiring an employee to work long hours." Though any of this conduct could properly be categorized as "gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence," it is not the equivalent of an intentionally inflicted injury protected by the Texas Constitution.
Castleberry , 617 S.W.2d at 666.
Reed Tool Co. v. Copelin , 689 S.W.2d 404, 407 (Tex. 1985).
Id. at 406-07.
Id. at 406.
In keeping with a constrained view of the intentional-injury exception, the Court's opinion today refines the standard and holds that the exception applies only when the employer "believe[s] that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace." To my mind, the "particular employee" addition to the intentional-injury standard is an unduly rigid gloss that is unnecessary to resolve the dispute in this case, and I cannot join the Court in adopting it. I nonetheless agree the standard of proof in intentional-injury cases must remain high "to prevent the intentional-injury exception from devolving into a standard of exceptionally egregious gross negligence." Consistent with a standard that requires more than egregious gross negligence, I agree with the Court that the record bears no evidence that "Mo-Vac intended a driver be killed on the job or that Escobedo's crash due to his grueling schedule was substantially certain."
Ante at 129–30.
Id. at 130–31.
Id.
However, denying the Escobedo family the opportunity to pursue a cause of action against Mo-Vac reveals an inequity in the workers' compensation scheme that imperils workers and threatens the welfare of the public at large. Mo-Vac's alleged behavior in causing or contributing to Fabian's death shocks the conscience by demonstrating willful disregard for public and employee safety. Mo-Vac, however, will not be held to answer for its intentional conduct because of an incongruity between the beneficiaries who may recover exemplary damages for intentional and grossly negligent conduct under the wrongful-death statute and those who may recover such damages for the same conduct under the workers' compensation statute.
II.
A.
The Workers' Compensation Act, from its inception, has included an exception to the exclusive-remedy bar that is both broader and narrower than the intentional-injury exception under the Texas Constitution. What is now codified as section 408.001(b) makes the Act's exclusive-remedy provision in section 408.001(a) inapplicable to intentional and grossly negligent conduct that results in an employee's death. But even though Fabian's parents, San Juanita and Primitivo Escobedo, are entitled to seek exemplary damages as statutory beneficiaries under the Texas Wrongful Death Act, their claims for the same outrageous conduct are not covered by the exclusive-remedy exception in section 408.001(b) of the Workers' Compensation Act and are therefore barred by section 408.001(a).
Middleton v. Tex. Power & Light Co. , 108 Tex. 96, 185 S.W. 556, 558 (1916) (noting the Act's exception for "exemplary damages [that] may be recovered in an ordinary suit by the surviving husband, wife and heirs of any deceased employee whose death is caused by homicide through the wilful act or omission or gross negligence of his employer").
Compare Tex. Civ. Prac. & Rem. Code § 71.004 (parents of the deceased may bring a wrongful-death action), with Tex. Labor Code § 408.001(b) (only the decedent's surviving spouse and heirs may recover exemplary damages).
After Fabian passed away, his parents filed a wrongful-death suit against Mo-Vac. Under the Wrongful Death Act, parents of a decedent are authorized to recover exemplary damages "[w]hen the death is caused by the wilful act or omission or gross negligence of the defendant[.]" The Workers' Compensation Act similarly permits recovery of exemplary damages when death is "caused by an intentional act or omission of the employer or by the employer's gross negligence," but unlike the wrongful-death statute, only "the surviving spouse or heirs of the [decedent's] body" may invoke the exemplary-damages exception to the exclusive-remedy provision. Because the Escobedos do not satisfy section 408.001(b)'s familial-relationship requirement, their wrongful-death claims were dismissed.
Id. at §§ 71.004 ("An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased."), .009 (exemplary damages authorized for intentional or grossly negligent conduct).
As currently enacted, the Workers' Compensation Act relieves employers of accountability for grossly negligent conduct simply because an employee's survivors do not fit into the narrow category of familial relationships authorized to pursue an exemplary-damages claim under section 408.001(b). Employers should not avoid the consequences of patently dangerous conduct merely because the deceased employee was unmarried and childless. Categorizing employees based on marital and parental status neuters the effectiveness of exemplary damages as a deterrent. No one is safe if strong disincentives for gross indifference to safety standards are lacking. Section 408.001(b)'s spouse-or-child limitation highlights where the statutory scheme falls short in deterring wrongful conduct.
Id.
See id.
B.
If the Escobedos had been empowered to pursue exemplary damages based on Mo-Vac's gross negligence, the record bears evidence to support that claim. For purposes of section 408.001(b), gross negligence involves objective and subjective elements: (1) the employer's conduct "when viewed objectively from the standpoint of the actor at the time of its occurrence involve[d] an extreme degree of risk, considering the probability and magnitude of the potential harm to" its employees; and (2) the employer "ha[d] actual, subjective awareness of the risk involved, but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of" its employees.
Tex. Civ. Prac. & Rem. Code § 41.001(11) ; see Tex. Labor Code § 408.001(c) ("In this section, ‘gross negligence’ has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.").
With regard to the first element, Urbano Garza's affidavit testimony paints a disturbing picture that Mo-Vac was objectively aware that forcing its drivers to work long, grueling hours created an "extreme risk" that one of its drivers would suffer severe injury or even death in the course and scope of employment. Mr. Garza provided uncontroverted testimony that Mo-Vac instructed its drivers to falsify their driving records. In other words, Mo-Vac coerced workers who were under economic duress to flat-out lie. The falsified records allowed Mo-Vac's drivers to work longer hours in direct violation of government-imposed safety rules enacted to protect not only Mo-Vac's drivers, but everyone using a public roadway. And even more alarming, Mo-Vac specifically trained its drivers to alter their driving logs to create the appearance of compliance with legally mandated safety standards. Mr. Garza estimated that falsification of Mo-Vac's driving logs resulted in drivers working "19 to 24 hours straight–day after day." And strikingly, the record indicates that in the eight days leading up to his death, Fabian Escobedo worked a total of 137 hours, averaging more than 17 hours of work per day. Cumulatively, this evidence objectively establishes Mo-Vac knew that requiring its drivers to operate semi-trucks with limited sleep—and in direct violation of safety standards—created "an extreme degree of risk."
See U-Haul Int'l, Inc. v. Waldrip , 380 S.W.3d 118, 137 (Tex. 2012) ("Under the objective component, ‘extreme risk’ is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff's serious injury.").
Similarly, Mr. Garza's testimony shows Mo-Vac subjectively "knew about the risk," yet its actions "demonstrated indifference to the consequences." Mr. Garza repeatedly confronted Mo-Vac management about the excessive hours Mo-Vac drivers spent on the road, noting such practices were dangerous and violated driving regulations. And when such conversations took place, Garza "would get an ‘ear full’ or a verbal reprimand from [his] supervisors about keeping production up at all costs." Mr. Garza also recounted that he was instructed by Mo-Vac management "to get the numbers up" and "to simply tell the drivers ‘don't get killed out there.’ " Notably, when Mr. Garza expressed his fear to Mo-Vac management "that one of [Mo-Vac's] drivers was going to get killed because of [the company's] insistence on unreasonable driving hours," management responded: "[W]e will cross that bridge when we come to it." Garza's affidavit leaves little doubt that management had "actual, subjective awareness of the risk" flowing from its conduct "but nevertheless proceed[ed] with conscious indifference to the rights, safety, or welfare of" its employees. While the record bears no evidence of "intent" as we have narrowly defined the intentional-injury exception under the Texas Constitution, at a minimum, there is some evidence of extreme gross negligence. Even so, Fabian's parents have no recourse against Mo-Vac for their loss because, unlike the wrongful-death statute, the workers' compensation scheme treats similarly situated workers differently and values their lives differently based on who survives them. If the statutes were parallel, San Juanita and Primitivo's claims against Mo-Vac would be viable, and the exemplary-damages provision in the Workers' Compensation Act would have more force in deterring the dangerous conduct that resulted in their son's death.
Waldrip , 380 S.W.3d at 137.
Ante at 134–35, 130–31.
* * * * *
In a perfect world, employers would do the right thing simply because it is the right thing to do. But we don't live in a perfect world. We live in a world that requires laws, regulations, and disincentives to help ensure employers don't do the wrong thing. Without meaningful consequences for engaging in prohibited conduct, laws are not effective. On that score, the Workers' Compensation Act has a loophole that unwittingly permits employers to engage, with impunity, in unsafe practices. I believe the tragic circumstances presented here make a strong case for aligning the Workers' Compensation Act with the Wrongful Death Act, and I call on the Legislature to do so.