Washington Court Rejects "Deliberate Injury" Claims Against Two Employers

While workers compensation statutes normally protect employers from personal injury lawsuits by employees injured on the job, there may be exceptions when an injury is the result of a known hazardous condition or a deliberate management act or omission. In two recent cases, employers were able to defend claims brought outside the workers compensation statute. The Washington State Court of Appeals rejected personal injury lawsuits by employees who alleged their employers had deliberately injured them, and in reaching those decisions, the court reaffirmed that the exception under the Washington Industrial Insurance Act is a narrow one.

The WIIA states an employer loses its normal protection from employees' personal injury lawsuits if an employee suffers an injury because of the employer's "deliberate intention . . . to produce such injury." RCW 51.24.020. In the first case to claim the exception, a 14-year-old girl suffered serious injuries when her hands and arms were pulled into an ice auger while she was working for a small, family-owned business. Her injury occurred while she was sharing a summer job with the daughter of the owners. Her legal guardian brought a personal injury lawsuit against the owners, relying on the "deliberate injury" exception. [Schuchman v. Hoehn, Docket No. 21060-0-III (11/06/03)]

The court rejected the 14-year-old's claim. Washington's "deliberate injury" exception requires proving more than gross negligence, so neither a failure to follow safety procedures nor acting with a substantial certainty of producing injury was enough to trigger the exception. Instead, it applies only if the employer has actual knowledge that an injury is certain to occur, yet willfully disregards that knowledge. This standard was not met, despite evidence that one of the owners had admitted that they "knew this was going to happen," but just did not know when it would occur. This alleged admission could not prove actual knowledge by the owners that the young worker was certain to be injured. Moreover, there was no evidence that the ice auger had injured anyone else; the auger included numerous warning signs; and the business had a license allowing it to employ children as ice baggers. Thus, the worker could not establish that the owners acted with willful disregard of certain injury.

The second case under the exception for deliberate intention involved the physically aggressive behavior of an autistic student. Two special education instructors sued their school district employer for injuries they suffered in working with this student, who had the cognitive ability of a 2- or 3-year-old but the strength of a grown man. On two consecutive days, the student had (1) shoved one of the instructors backwards, causing her to strike her head and lose consciousness, and (2) bit the other instructor on her breast, breaking the skin and leaving a bruise. The instructors received workers' compensation benefits for their injuries, but they sued for additional personal injury damages, arguing that there were so many episodes of aggression by this student that the school district must have known they were certain to be injured, yet willfully failed to take effective preventive steps. [Vallandigham v. Clover Park School District, Docket No. 30301-9-II (11/12/03).]

In finding the exception did not apply, the court agreed that a jury could reasonably conclude the school district had actual knowledge that some kind of an injury was certain to occur. The court relied on evidence of numerous injuries and aggressive episodes by the student against the plaintiff instructors and others. This included evidence that, by the time in question, the student was physically hurting others on a daily basis. Even so, the court held there was no factual issue about whether the school district "willfully disregarded" its actual knowledge of certain injury. The court listed several specific steps that the district had taken in an effort to address the student's aggressive behavior, including medical consultation, behavioral analysis and assessment, changes in staffing, creating a separate isolation space, offering restraint training, issuing walkie-talkies, and investigating possible alternative placements.

These two cases remind employers that it is crucial to take preventive action whenever the employer becomes aware that employees may be injured by a hazard present in the workplace. Failing to take preventive action may expose the employer to large damages awards by overcoming the normal workers' compensation act "bar" against an employee suing the employer for personal injuries. Conversely, as shown by the court in rejecting the claim for injuries caused by the autistic student, even if the employer's efforts fail to prevent injuries, the fact that the employer took such steps may help it avoid liability for personal injury damages.