Opinion
No. 54580-9-I
Filed: April 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-23306-6. Judgment or order under review. Date filed: 02/03/2004. Judge signing: Hon. Palmer Robinson.
Counsel for Appellant(s), David Andrews Williams, Attorney at Law, 9 Lake Bellevue Dr Ste 104, Bellevue, WA 98005-2454.
Counsel for Respondent(s), Jeffrey S. Miller, Attorney at Law, 1111 3rd Ave Ste 3400, Seattle, WA 98101-3264.
The Watsons sued the Seattle Seahawks after football player Tim Watson impaled his knee on a hook welded onto the rear of a blocking sled. The Watsons contend that the Seahawks deliberately injured Tim Watson and therefore fall into a narrow exception to the statutory immunity enjoyed by employers as part of Washington's industrial insurance no-fault compensation system. The Seahawks successfully moved for summary judgment on the issue of the "actual knowledge" requirement of the deliberate injury exception, and the Watsons appeal. We affirm, as evidence that an employer recognized or should have recognized a danger in the workplace does not create a triable issue of actual knowledge.
FACTS
Seattle Seahawks defensive lineman Tim Watson was injured in August 2000 while participating in a pass rushing drill. The drill required Watson to make contact with a dummy mounted on a blocking sled, or "grab bag," then move to the side and run alongside the base of the sled toward an imaginary quarterback. The Seahawks had welded hooks at the rear of the sleds so that the equipment staff could tow them on and off the practice fields. Watson slipped as he ran alongside the sled base, and his knee landed on the hook.
The Seahawks placed Watson on the injured reserve list for the 2000 season. He received compensation for his injury through the state's workers' compensation system. Despite medical care and rehabilitation, Watson was not able to meet the physical requirements for the 2001 season. The Seahawks terminated the remaining two years on his three-year contract and released him.
Watson and his wife, Courtney Watson, sued Football Northwest Management, Inc., and Football Northwest, LLC (collectively "the Seahawks") for damages relating to the injury and loss of consortium. In their complaint, the Watsons claimed that the Seahawks knew that an injury like the one suffered by Tim Watson was certain to occur and was therefore "intentional" within the meaning of the Washington Industrial Insurance Act.
Several Seahawks players stated that the hook posed an obvious danger. Lamar King stated during a deposition, I mentioned it, me personally, that the hook was there and I noticed it, and that I mentioned if somebody was to fall and slip on it, it would be a serious injury. . . . I was just saying, Dang, somebody needs to move the hook before somebody falls and gets hurt.
King also stated that he complained about the hook to a coach. "I don't know if he heard it — it was enough — I said it loud enough so he could hear it, so anybody who was close to me could hear it." Furthermore, King stated that he had slipped "a couple of times" while performing drills.
Seahawks player Antonio Cochran stated in a deposition that Watson's injury did not surprise him and further stated, I mean, I just saw the hook, whatever, I just try to avoid it. Myself, personally, I just try to avoid the hook. I didn't run over the thing like I guess he did, or whatever, the day he got hurt. I always ran straight, so I try to avoid the hook like that.
Former Seahawks defensive lineman Matt LaBounty stated in a declaration, "We defensive linemen thought the hook was very dangerous. As linemen struck the bag, then rushed past it, they were exposed to the open end of the hook. Any lineman who slipped and fell onto the hook could be seriously injured." LaBounty stated that the defensive linemen "complained to each other and to the line coaches about the bag. The coaches were well aware of the hook." LaBounty stated that one lineman refused to drill on the sled because of the danger of the hook. He also stated, "It was just a matter of time before someone was injured on this hook" and that Watson's injury "was totally predictable from the placement of the hook."
According to Seahawk equipment manager Erik Kennedy, Seahawk personnel also recognized the danger of the hook. Kennedy stated in a deposition that he conducted a "walk through" inspection of the practice field with other Seahawk personnel before the injury and that someone in the group recommended wrapping the hook. The Seahawks covered the hook with a cloth-and-tape hood. In his deposition, Watson stated that any knowledgeable person would not believe that the cover would provide protection. My main recollection is the tape itself, though, like the ball of tape, and yeah, I mean, I think anyone that's knowledgeable would know that athletic tape just kind of rigged up by somebody from the training room to cover up something like that would know that that's not going to stop something from happening.
LaBounty claimed that "[s]ometimes the hood would be knocked off the hook by the force of [a] lineman hitting the bag. When that would happen, the coach would immediately stop the drill and replace the hood."
Neil Gilman, owner of the Gilman Company that manufactures the blocking sleds, stated in a deposition that he would not have attached hooks to the rear of the sleds. "[W]e would not place a toe hook facing toward the player or underneath the pad. We would not consider that the proper place to put a toe hook." A demo tape for the blocking sleds from the Gilman Company shows two players stumbling and almost falling near the area on the sled where the Seahawks welded the hook.
After Watson injured his knee on the hook, Seahawks coach Mike Holmgren ordered the hook padded or removed. No one else has been injured on the hook.
The Seahawks successfully moved for summary judgment on the ground that the Watsons could not demonstrate a genuine issue of material fact for "actual knowledge," an element of the narrow "deliberate injury" exception to the statutory immunity enjoyed by employers under the Washington Industrial Insurance Act. The Watsons appeal.
ANALYSIS
We apply de novo review to a trial court's disposition of a summary judgment motion. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). The moving party is entitled to summary judgment when it demonstrates through the pleadings, affidavits, depositions, and admissions on file that there is no genuine issue of material fact. Folsom, 135 Wn.2d at 663. Reasonable inferences from the evidence must be resolved against the moving party, and the motion should be granted only if, from all the evidence, a reasonable fact finder could reach but one conclusion. Folsom, 135 Wn.2d at 663.
The Washington Industrial Insurance Act provides quick, no-fault compensation to employees for injuries incurred on the job, while granting employers immunity from suits for those injuries. Birklid v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278 (1995). In RCW 51.24.020, the Legislature provides an exception to the immunity for injuries inflicted with "deliberate intention" by an employer. Birklid, 127 Wn.2d at 859. In Birklid, our Supreme Court ruled that the phrase "deliberate intention" in RCW 51.24.020 means the employer (1) had actual knowledge that an injury was certain to occur and (2) willfully disregarded that knowledge. Folsom, 135 Wn.2d at 666-67; Birklid, 127 Wn.2d at 865. Neither gross negligence nor failure to observe safety procedures and laws governing safety constitute a specific intent to injure. Birklid, 127 Wn.2d at 860.
RCW 51.24.020 provides:
"If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title."
Folsom and other decisions set a high threshold for surviving summary judgment on the issue of actual knowledge. Under these decisions, evidence that employers recognized or should have recognized an obvious danger in the workplace does not create a triable issue of genuine fact that an employer had actual knowledge of certain injury.
In the closely analogous decision of Schuchman v. Hoehn, 119 Wn. App. 61, 79 P.3d 6 (2003), a 14-year-old girl's hands and arms were severely injured when they were caught in the auger of a bin that channeled ice into an ice machine. Schuchman, 119 Wn. App. 65. The girl's mother sued the Hoehns, who employed the girl and owned the company that operated the machinery. Schuchman, 119 Wn. App. at 65. The mother claimed that one of the Hoehns told her, "`We knew this was going to happen, we just didn't know when.'" Schuchman, 119 Wn. App. at 65. The Court of Appeals affirmed summary judgment for the defendants and ruled that as a matter of law, "an employer acting with even a substantial certainty that injury will occur to the employee does not have the requisite specific intent to injure that triggers the exception to employer immunity." Schuchman, 119 Wn. App. at 72 (citing Folsom, 135 Wn.2d at 665). The appellate court held that the plaintiffs failed to establish the requisite specific intent and pointed out that the record did not reflect any previous injury with the auger. Schuchman, 119 Wn. App. at 72.
In Folsom, plaintiffs produced evidence that a Burger King franchisee may have known of a worker's criminal history, of his sexual harassment of female co-workers, that the back door entrance did not have a security peephole and did not lock properly, that keeping cash in the restaurant might invite theft, and that there was no active security system. Folsom, 135 Wn.2d at 665-66. Our Supreme Court ruled that this evidence might show negligence, but it does not establish that the franchisee had actual knowledge that the worker would rob the restaurant and kill two co-workers or that the franchisee intended the murder of its employees. Folsom, 135 Wn.2d at 667. The franchisee was therefore entitled to summary judgment on the issue of actual knowledge. Folsom, 135 Wn.2d at 667.
In Henson v. Crisp, 88 Wn. App. 957, 946 P.2d 1252 (1997), the manager of a Payless store fired a realistic-looking toy gun at a female employee, causing her to suffer nervous distress. Henson, 88 Wn. App. at 959. An appellate court ruled that a jury could find that the supervisor acted with gross negligence, but not with actual knowledge that the employee would suffer emotional distress. Henson, 88 Wn. App. at 961-62. These decisions demonstrate that evidence showing negligence or gross negligence on the part of an employer does not create a triable issue of fact. To survive summary judgment, a plaintiff must produce evidence showing that the employer knew that injury was certain to occur.
The Watsons do not produce evidence showing actual knowledge of certain injury, and we therefore affirm summary judgment for the Seahawks. LaBounty's declaration and the various deposition statements support the proposition that the hook posed an obvious danger, that Watson's teammates recognized the danger, and that the Seahawks should have or did recognize the danger. But under the standard set by Folsom and other decisions, they do not establish a triable issue as to whether the Seahawks had actual knowledge that injury was certain.
The Watsons also contend that summary judgment for the Seahawks effectively rewrites the Birklid definition of deliberate intent by requiring a history of previous injury. We disagree. A history of previous injury will bolster a plaintiff's case, and it might make a crucial difference in opposing a summary judgment motion. For example, the Watsons might be able to present a genuine issue of material fact on actual knowledge if they could show that previous players had fallen on the hook and suffered injury. But the summary judgment for the Seahawks does not impose a new requirement not found in Birklid. It merely reflects the inability of the Watsons to meet the high threshold established in Folsom and other decisions with the facts at hand.
In conclusion, the evidence claimed by the Watsons cannot create a triable issue of material fact of whether the Seahawks actually knew that the hook on the blocking sled would cause injury. We affirm summary judgment for the Seahawks.
SCHINDLER and GROSSE, JJ., Concur.