Walston v. Boeing Co.

/ F I ~E ~
IN CLIRICI OFFICI
llJIMME COURT, 8TA'I'E OF WMIINimll
DATE SEP 1 8 2014

77ta~~9·
IN THE SUPREME COURT OF THE STATE OF WASHINGTON

DONNA WALSTON, individually and as )
personal representative of the Estate of ) No. 88511-7
Gary G. Walston, )
) EnBanc
Petitioner, )
)
v. )
)
THE BOEING COMPANY; and )
SABERHAGEN HOLDINGS, INC., as )
successor to TACOMA ASBESTOS )
COMPANY and THE BROWER )
COMPANY, )
)
Respondents. ) Filed SEP 18 2014
)

OWENS, J. -- In 1911, the legislature passed the Industrial Insurance Act

(IIA), Title 51 RCW, creating a no-fault system for efficiently compensating workers

injured on the job. As part of that system, employers receive immunity from civil

suits resulting from on-the-job injuries. RCW 51.04.01 0. However, the legislature

specified that employers that deliberately injure their employees are not immune from

suit. RCW 51.24.020. Under our precedent, an employer deliberately injures an

employee if"the employer ha[s] actual knowledge that an injury [is] certain to occur
Walston v. Boeing Co.
No. 88511-7

and willfully disregard[s] that knowledge." Birklid v. Boeing Co., 127 Wn.2d 853,

865, 904 P.2d 278 (1995).

In this case, Gary G. Walston was exposed to asbestos while working at The

Boeing Company and was later diagnosed with mesothelioma. The Court of Appeals

held that pursuant to the IIA, Boeing was immune from suit because Walston had not

raised a material question of fact as to whether Boeing had actual knowledge that

injury was certain to occur. We agree. Walston has not made such a showing, and

therefore, he is limited to the recovery provided by the IIA' s workers' compensation

system.

FACTS

Walston worked for Boeing from 1956 to 1995. Although Walston was

exposed to asbestos throughout his career with Boeing, at issue in this case is an

incident of asbestos exposure that occurred in 1985. In January of that year,

maintenance workers began repairing pipe insulation in the ceiling above the hammer

shop. Specifically, the workers rewrapped the overhead pipes to contain flaking

asbestos insulation. These maintenance workers used ventilators and protective

clothing referred to as "moon suits" during the project. Clerk's Papers (CP) at 2014.

Although this work occurred overhead, Walston and the other hammer shop

employees continued work below without protective ventilators or clothing. The

repairs created visible dust and debris, and Walston used a plastic covering to protect

2
Walston v. Boeing Co.
No. 88511-7

his toolbox. Walston and other hammer shop employees requested that they work in a

different location during the pipe repair. The supervisor told them to go back to work

but recommended that they avoid working directly under the overhead repairs.

Walston was diagnosed with mesothelioma, a lung disease caused by inhaling

asbestos fibers, in 2010. He passed away in April2013. One of Walston's experts,

Dr. Carl Brodkin, concluded that Walston's exposure during 1985 was "likely by far .

. . the highest level of exposure experienced by Mr. Walston" during his Boeing

career and "a component part of Mr. Walston's cumulative exposure that resulted in

his development of Mesothelioma." CP at 2873. Another expert witness, Dr. Arnold

Brody, testified that an individual exposed to asbestos fibers at levels greater than

background sustain an immediate microscopic injury that is not observable. However,

another of Walston's experts, Dr. Andrew Churg, conceded that asbestos exposure is

not certain to cause mesothelioma or any other disease.

Walston sued Boeing, claiming that his disease was caused by his exposure to

asbestos while employed by the company. Boeing does not dispute that it was aware

that asbestos was a hazardous material in 1985. Neither does Boeing dispute the facts

underlying the 1985 incident. Instead, it argues that it did not have actual knowledge

that Walston was certain to be injured and therefore it is immune from suit under the

IIA. Boeing moved for summary judgment, but the trial court denied the motion. The

Court of Appeals reversed and remanded for entry of an order granting summary

3
Walston v. Boeing Co.
No. 88511-7

judgment to Boeing. Walston v. Boeing Co., 173 Wn. App. 271,288, 294 P.3d 759

(2013). We granted review. Walston v. Boeing Co., 177 Wn.2d 1019, 304 P.3d 115

(2013).

ISSUE

Has Walston raised a question of material fact as to whether Boeing had actual

knowledge that he was certain to be injured by the asbestos exposure, thus allowing

him to pursue his claim outside of the IIA's workers' compensation system?

STANDARD OF REVIEW

When reviewing summary judgment, we engage in the same inquiry as the trial

court. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d

805 (2005). Summary judgment is appropriate only if "there is no genuine issue as to

any material fact" and "the moving party is entitled to a judgment as a matter of law."

CR 56(c). All facts must be considered in the light most favorable to the nonmoving

party. Vallandigham, 154 Wn.2d at 26. Summary judgment is granted only if, given

the evidence, reasonable persons could reach only one conclusion. !d. The moving

party bears the burden of showing that there is no genuine issue of material fact. !d.

If this burden is satisfied, the nonmoving party must present evidence demonstrating

material fact. !d. Summary judgment is appropriate if the nonmoving party fails to

do so. !d.

4
Walston v. Boeing Co.
No. 88511-7

ANALYSIS

The IIA created the workers' compensation system, which we have described

as a "grand compromise" that gave employers "immunity from civil suit by workers"

in return for giving injured workers "a swift, no-fault compensation system for

injuries on the job." Birklid, 127 Wn.2d at 859.

However, the IIA does not exempt employers from civil claims filed by

employees with injuries resulting "from the deliberate intention of his or her employer

to produce such injury." RCW 51.24.020 (emphasis added). Until the Birklid case in

1995, this exception was mainly applied in cases of physical assault against an

employee. See Birklid, 127 Wn.2d at 861-62. In Birklid, we considered for the first

time a situation in which an employer knew in advance that its workers would become

ill from the use of a new resin, yet still decided to put the resin into production. /d. at

863. The employer "then observed its workers becoming ill from the exposure." /d.

We held that "deliberate intention" includes when "the employer had actual

knowledge that an injury was certain to occur and willfully disregarded that

knowledge." /d. at 865 (emphasis added).

Before adopting that narrow test, we reviewed broader tests from other

jurisdictions and rejected them. /d. at 863-65. In particular, we considered a test that

defined deliberate intention to include situations in which the injury is '"substantially

certain to occur."' /d. at 864 (quoting Beauchamp v. Dow Chern. Co., 427 Mich. 1,

5
Walston v. Boeing Co.
No. 88511-7

22, 398 N.W.2d 882 (1986)). We rejected that test and instead adopted a narrower

test for Washington. !d. at 865. Thus, "deliberate intention" is a high standard that is

met in Washington only when an employer had actual knowledge that an injury was

certain to occur. !d. An act that has substantial certainty of producing injury is

insufficient to meet that standard. !d. at 860. Similarly, negligence-even gross

negligence-is not sufficient to meet the "deliberate intention" standard. !d.

We addressed the deliberate intention standard again in the Vallandigham case,

where a school district was sued by two employees who had been injured by a

severely disabled special education student. 154 Wn.2d at 17. The same student had

injured staff members approximately 96 times during one school year. !d. at 24. We

affirmed summary judgment for the school district, holding that the school district had

no actual knowledge that injury was certain to occur. !d. at 35. The holding was

based in part on the unpredictable nature of the special education student's behavior.

Although the district acknowledged that it was aware that further injuries to school

employees was a "'probability,"' we reiterated that "[ e]ven substantial certainty that

employee injury will occur by virtue of an employer's action (or inaction) is

insufficient." !d. at 21, 36. "Disregard of a risk of injury is not sufficient to meet the

[Birklid test]; certainty of actual harm must be known and ignored." !d. at 28.

The holdings from Birklid and Vallandigham are binding on this case. As the

experts in this case acknowledge, asbestos exposure is not certain to cause

6
Walston v. Boeing Co.
No. 88511-7

mesothelioma or any other disease. It does cause a risk of disease, but as we have

previously held, that is insufficient to meet the Birklid standard. !d. Walston has not

raised an issue of material fact as to whether Boeing had actual knowledge that injury

was certain to occur. And to the extent that Walston argues that the deliberate

intention standard is satisfied as long as the employer knows that someone, not

necessarily the plaintiff, is certain to be injured, this court already rejected that

argument in Birklid. 127 Wn.2d at 865. Therefore, the Court of Appeals properly

remanded for entry of an order granting summary judgment to Boeing.

Walston contends that under the Court of Appeals' holding, deliberate intention

can be found only when the injury is immediate and visible. This is an incorrect

reading of the Court of Appeals opinion. The Court of Appeals explained that

immediate and visible injury is one way to raise an issue of material fact as to whether

an employer had constructive knowledge that injury was certain to occur. Walston,

173 Wn. App. at 284. The court noted that this was how the employees raised an

issue of material fact in Birklid and other cases involving exposure to toxic chemicals.

!d. Since immediate and visible injury was not present in this case, Walston could not

use that to show that Boeing had knowledge of certain injury. However, the Court of

Appeals did not hold that immediate and visible injury is the only way to show an

employer's knowledge that injury was certain to occur.

7
Walston v. Boeing Co.
No. 88511-7

Finally, Walston asks the court to find that Boeing had actual knowledge of

certain injury because individuals exposed to asbestos are injured at the cellular level.

We reject that argument because it would be inconsistent with the standard developed

in Birklid and Vallandigham. Under Birklid, a risk of injury is insufficient to meet the

deliberate intention standard. The asymptomatic cellular-level injury here is not itself

a compensable injury. See, e.g., Dep 't ofLabor & Indus. v. Landon, 117 Wn.2d 122,

125-28, 814 P.2d 626 (1991) (holding that a disease does not occur upon exposure; it

occurs when it manifests itself). Instead, as Walston's experts acknowledge, the

asymptomatic cellular-level injury resulting from the exposure to asbestos created a

risk of compensable injury. Thus, even if Boeing had actual knowledge that exposure

to asbestos would cause asymptomatic cellular-level injury, the Birklid deliberate

intention standard would not be met.

CONCLUSION

Workers who are injured on the job are compensated through the workers'

compensation system except in those egregious cases where the employer deliberately

intended to injure the workers. Applying the standard set out in Birklid, we conclude

that Walston has not raised a question of material fact as to whether Boeing had actual

knowledge of certain injury resulting from the asbestos exposure. Therefore, Walston

has not shown that Boeing deliberately intended to injure him and cannot pursue a

claim outside of the workers' compensation system. We affirm the Court of Appeals

8
Walston v. Boeing Co.
No. 88511-7

and remand for entry of an order granting summary judgment to Boeing on Walston's

claims.

9
Walston v. Boemg Co .
·
No. 88511-7

WE CONCUR:

-=i-w ~f-. q.

10
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

No. 88511-7

WIGGINS, J. (dissenting)-The majority holds that the deliberate injury

provision in the Industrial Insurance Act (I lA), Title 51 RCW, does not apply when

an employer knowingly and intentionally exposes an employee to high levels of

asbestos causing that employee to develop and eventually die from an asbestos-

related disease. I disagree.

I would hold that while it is a close call, petitioners Gary G. Walston and

Donna Walston (Walston) have presented sufficient evidence to survive summary

judgment. By 1985, The Boeing Company knew that forcing its workers to inhale

asbestos fibers causes immediate scarring of lung tissue and long-term disease

such as mesothelioma. Nevertheless, Boeing forced Walston to work under a

shower of asbestos over his objection. The IIA specifically exempts deliberately

caused diseases from employer immunity. RCW 51.24.030(3). Walston's

evidence, including expert testimony that inhaling asbestos causes certain injury to

the lungs, raises questions of fact as to whether Boeing knew its employees were

being injured and willfully disregarded that knowledge. Thus, I would hold that the

trial court properly denied Boeing's motion for summary judgment, I would reverse

the Court of Appeals, reinstate the trial court's denial of Boeing's summary

judgment motion, and remand for further proceedings.
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

ANALYSIS

I. Under Birklid, an Employer Must Know That Injury Is Certain To Occur but
Need Not Foretell Every Specific Harm or Victim

Title 51 RCW (Washington's IIA) generally limits a worker's right to recover

for workplace injuries to benefits under the statute but permits an employee to sue

the employer "[i]f injury results to a worker from the deliberate intention of his or her

employer to produce such injury .... " RCW 51.24.020. We considered the

meaning of "deliberate intention" in Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d

278 (1995). In Birklid, Boeing tested new fiberglass parts impregnated with a resin

used to make interior parts for its airplanes. When workers became ill upon

exposure to the resin, a supervisor requested improved ventilation, but Boeing

refused, "apparently for economic reasons." /d. at 856. "As Boeing's supervisor

predicted, when full production began, workers experienced dermatitis, rashes,

nausea, headaches, and dizziness." /d.

We noted in Birklid that the central feature distinguishing that case from all

prior cases involving the intentional injury exception was that Boeing knew in

advance that its workers would suffer injury from working with the new material. /d.

at 863. We concluded that the injuries were not an accident and that the case

involved "willful disregard of actual knowledge by the employer of continuing

injuries to employees." /d. We held that "the phrase 'deliberate intention' in RCW

51.24.020 means the employer had actual knowledge that an injury was certain to

occur and willfully disregarded that knowledge." /d. at 865.

2
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

Here, the injury at issue is a disease. The legislature provided that for the

purpose of injury intentionally inflicted by the employer, '"injury' shall include any

physical or mental condition, disease, ailment or loss, including death, for which

compensation and benefits are paid or payable under this title." RCW 51.24.030(3).

The IIA generally defines "injury" as "a sudden and tangible happening, of a

traumatic nature, producing an immediate or prompt result, and occurring from

without, and such physical conditions as result therefrom." RCW 51.08.1 00. An

"occupational disease" means a disease or infection that arises out of employment.

RCW 51.08.140. By defining "injury" to include "disease" for purposes of the

"deliberate intent" exception, the legislature envisioned certain circumstances

where an employer knowingly exposes workers to conditions certain to produce a

disease.

Diseases differ from traditional workplace injuries. 1 For example, physical

injuries are often immediately visible, while diseases have latency periods with

symptoms materializing sometime after exposure. Relatedly, there is no way to

know with absolute certainty that an exposed individual will ever contract a disease.

Moreover, most diseases are caused by multiple factors, which can make it difficult

to prove causation.

1 A search of Washington cases involving intentionally produced disease yielded no
results. For this reason, I find our case law instructive but not controlling. See, e.g.,
Birklid, 127 Wn.2d at 856 (physical condition case involving dizziness, dryness in nose
and throat, burning eyes, and upset stomach); Vallandigham v. Clover Park Sch. Dist.
No. 400, 154 Wn.2d 16, 19, 109 P.3d 805 (2005) (scratches and slaps).

3
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

This case involves a disease arising from exposure to a toxic substance.

Most toxic exposure injuries are dose-related, meaning the greater the exposure,

the more severe the consequences. In addition, whether an exposed individual will

suffer a compensable injury depends in part on vulnerabilities unique to that person.

These qualities makes it near impossible to predict with absolute certainty how

each exposure will affect a particular individual.

Asbestos is one of the most notorious of hazardous substances injuring

workers in cases brought into our courts. In addition to a long latency period,

asbestos-related injuries are continuous, progressive, and cumulative. Each

exposure builds on the last and can lead to any number of injuries at any given

point in time including shortness of breath, asbestosis, mesothelioma, lung cancer,

or a number of other late-appearing cancers. It is true that exposure to asbestos

gives rise to uncertainties inherent in predicting specific toxic-produced injuries.

And yet, we know that inhaling asbestos causes injuries. See Lockwood v. AC&S,

Inc., 109 Wn.2d 235, 260, 744 P.2d 605 ( 1987) (holding that defendant had

continuing duty to warn of hazards of asbestos after exposure); Macias v.

Saberhagen Holdings, Inc., 175 Wn.2d 402, 406, 282 P.3d 1069 (2012) (holding

that respirator manufacturers were not entitled to summary judgment where victim

died from "mesothelioma, a deadly type of cancer associated with asbestos

exposure," after using product).

Indeed, these qualities, along with the certainty that inhaling asbestos

initiates a specific injurious process, have led federal courts to define the

4
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

"occurrence" of injury in asbestos cases as a continuing process, beginning with

the inhalation of asbestos fibers and ending years later with the manifestation of an

asbestos-related disease. See ACandS, Inc. v. Aetna Cas. & Sur. Co., 764 F.2d

968, 972 (3d Cir. 1985) ("bodily injury" means any part of the single injurious

process that asbestos-related diseases entail); Keene Corp. v. Ins. Co. of N. Am.,

215 U.S. App. D.C. 156, 667 F.2d 1034, 1046 (1981) (inhalation exposure is part

of injurious process and constitutes "injury" under policy); Porter v. Am. Optical

Corp.,641 F.2d 1128, 1144(5thCir.1981)(same). 2 Experts agree. Forexample,

asbestosis has been described as a progressive disease "characterized by

pulmonary fibrotic changes which develop slowly over the years. The process

begins near the time of initial exposure. The fibers insidiously injure the lungs

throughout the period of exposure, and the process continues even after physical

2 The legal definition of "injury" in other contexts supports a finding that inhaling
asbestos causes certain and immediate injury. For example, in Department of Labor
& Industries v. Fankhauser, 121 Wn.2d 304,311,849 P.2d 1209 (1993}, this court held
that the last injurious exposure rule did not bar workers from compensation even
though their last exposure to asbestos occurred during noncovered self-employment.
Notably, the relevant injury was each exposure to asbestos throughout employment.
Likewise, a tort claim arises when a plaintiff is exposed to asbestos and not when he
or she discovers the injury. See Koker v. Armstrong Cork, Inc., 60 Wn. App. 466, 472,
804 P.2d 659 (1991) ("injury producing event" was exposure to asbestos, so tort claim
arose before 1981 tort reform act); Krivanek v. Fibreboard Corp., 72 Wn. App. 632,
635, 865 P.2d 527 (1993) (same); Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App.
22, 34, 935 P.2d 684 (1997) (Washington Product Liability Act did not apply because
both the exposure and the tissue changes leading to the disease occurred well before
the effective date of the act); see also Ins. Co. of N. Am. v. Forty-Eight Insulations, Inc.,
633 F.2d 1212, 1219 (6th Cir. 1980) (noting universal medical agreement that
asbestosis "occurs" at exposure and not when disease is discovered}, decision clarified
on reh'g, 657 F.2d 814 (6th Cir. 1981).

5
Walston (Gary) et ux. et at. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

symptoms become evident." Pamela J. Layton, Comment, Manifestation: The

Least Defensible Insurance Coverage Theory for Asbestos-Related Disease Suits,

7 U. PUGET SOUND L. REV. 167, 175 (1983) (footnotes omitted).

Thus, I would hold that certainty does not mean absolute certainty that a

particular plaintiff will develop a particular disease. Under Birklid, an employer must

know that injury is certain to occur but need not foretell every specific harm or

victim. In fact, in Birklid, Boeing did not know which workers would get sick, whether

the injuries would be compensable, or the severity of illnesses workers would

experience. Nevertheless, this court held that employees' claims fell under the

deliberate injury exception because employers knew workers were being

continuously injured. Thus, to show "deliberate intention" under RCW 51.24.020,

a plaintiff must show that an employer knew with a high degree of confidence that

injury would result and yet willfully disregarded that knowledge. This interpretation

gives effect to legislature's intent to hold an employer accountable when the

employer deliberately intends to produce a disease. Davis v. Dep't of Licensing,

137 Wn.2d 957, 963, 977 P.2d 554 (1999) (we interpret statutes so that all the

language used is given effect, with no portion rendered meaningless or

superfluous). Requiring 100 percent certainty would once again read the statutory

exception out of existence in the context of disease-which, given its inclusion of

"disease" in the definition of injury for purposes of the exception, would violate the

6
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

legislature's clear intent. See RCW 51.24.030(3). 3 Here, exposure to asbestos

caused immediate and certain scarring in Walston's lungs-under the statute, this

satisfies the injury requirement once and if the scars develop into a compensable

disease.

II. This Interpretation of Birklid Satisfies the IIA's Purpose of Balancing
Competing Interests While Also Deterring Intentional Wrongdoing

Birklid is consistent with general tort concepts outside the workers'

compensation context. The gradations of tortious conduct can best be understood

as a continuum. Woodson v. Rowland, 329 N.C. 330, 341-42, 407 S.E.2d 222

( 1991) (discussing the Restatement (Second) of Torts § 8A & cmt. b ( 1965)

3 In Travis v. Dreis & Krump Manufacturing Co., 453 Mich. 149, 190, 551 N.W.2d 132,
150 (1996), the Michigan Supreme Court interpreted a similar intentional tort exception
in their state's Worker's Disability Compensation Act. In his concurrence in part,
dissent in part, Justice Levin writes:

As the lead opinion implicitly recognizes, absolute unavoidability
of the consequences cannot be the standard for determining when an
event is "certain to occur." Even the deliberate firing of a gun directly at
an employee is not certain to cause injury if the employer's aim is untrue.
Yet, if the bullet should find its mark, no court would hesitate to find the
injury "certain to occur'' despite its evitability.

/d. at 194-95. Justice Levin continues:

Properly understood, the term "certain" in the statute must mean
some unacceptably high, but not complete, risk. It is higher than our
previous formulation, "substantial certainty." Similarly, it represents
greater danger than the risk necessary to support negligence or even
gross negligence. Nonetheless, it cannot mean a one hundred percent
likelihood that an injury will occur, because such certainty does not, as a
practical matter, exist in this world.

/d. at 195 (Levin, J., concurring in part, dissenting in part). I agree with this analysis.

7
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

hereinafter REST. 20 TORTS) and Prosser and Keeton on the Law of Torts§ 8, at 35

(W. Page Keeton ed., 5th ed. 1984)). The most aggravated conduct is where the

actor has the subjective purpose or desire to bring about the probable

consequences of his conduct. REST. 20 ToRTS § 8A & cmt. b; PROSSER AND

KEETON, supra. But "intent" is broader than a desire to bring about results. REST.

2D TORTS§ 8A & cmt. b. One who intentionally acts knowing that particular results

are substantially certain to follow also "inten[ds]" the results. /d. cmt. b.

As the probability that [a certain] consequence[] will follow decreases,
and becomes less than substantial certainty, the actor's conduct loses
the character of intent, and becomes mere recklessness .... As the
probability decreases further, and amounts only to a risk that the
result will follow, it becomes ordinary negligence ....

/d.
We follow the basic rules discussed in the Restatement. We find intent

where a defendant acted with a purpose to achieve the result of his act or where

he or she believed that the consequences were substantially certain to result.

Bradley v. Am. Smelting & Ref. Co., 104 Wn.2d 677, 683, 709 P.2d 782 (1985).

However, mere negligent or reckless conduct does not satisfy the intent element.

Ct. Sorensen v. Estate of McDonald, 78 Wn.2d 103, 109, 470 P.2d 206 (1970) (in

a host-guest context, wanton misconduct contemplates intentional conduct on part

of host driver that is more reckless and dangerous than gross negligence, yet short

of premeditated and deliberate harm).

8
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

Our holding in Birklid interprets the intentional tort consistently with general

tort principles while still keeping in mind the IIA's purpose of balancing competing

interests. 127 Wn.2d at 859 (IIA is a "grand compromise" between employers and

workers). Prior to Birklid, our case law set a high bar for satisfying the intentional-

wrong exception, requiring proof of specific intent to injure. /d. at 860 (citing

Delthony v. Standard Furniture Co., 119 Wash. 298, 300, 205 P. 379 (1922)). The

Birklid court noted that this interpretation had "effectively read the statutory

exception to the IlA's exclusive remedy policy nearly out of existence." /d. at 862.

Our court apparently recognized that the workers' compensation system confronts

the unpleasant, harsh reality that, at times, employers will knowingly expose

workers to injury and disease. 4 Accordingly we concluded that the phrase

"deliberate intention," while at times referring to specific intent to injure, can also

mean that the employer (1) had actual knowledge that an injury was certain to occur

and (2) willfully disregarded that knowledge. /d. at 865-66. Importantly, neither

RCW 51.24.020 nor tort principles require a 100 percent probability that an action

will cause a specific result; certainty can be achieved with less.

The Birklid rule appropriately attempts to capture the categories of employer

conduct that are perhaps not specifically intended to harm, but that are sufficiently

4
Other Washington statutes evidence a specific concern for hazardous exposures in
the workplace. See RCW 49.70.010 (enacted in 1984; "legislature finds and declares
that the proliferation of hazardous substances in the environment poses a growing
threat to the public health, safety, and welfare"); RCW 70.1050.01 0(2) (initiative
measure approved 1988; "[a] healthful environment is now threatened by the
irresponsible use and disposal of hazardous substances").

9
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

egregious so as to constitute an "intentional wrong." This pronouncement was not

intended to expand the narrow intentional tort exception to workers' compensation

exclusivity. Rather, it constitutes this court's effort to identify employer intentional

torts under the IIA by borrowing from the intent standard that would apply to any

other intentional tort claim in this state. 5 By adopting the Birklid standard, this court

furthers the workers' compensation objective of workplace safety while balancing

the interests of employer and employee. At the same time, it furthers the general

tort principle that injuries are to be compensated and antisocial behavior is to be

discouraged. See PROSSER & KEETON, supra, § 1, at 3.

Ill. This Interpretation of Birklid Will Not Initiate a Flood of Litigation

Amicus argue that allowing plaintiff to survive summary judgment here could

potentially open our courts to a flood of litigation. Jurisdictions that require a

showing of specific intent to injure appear to be similarly concerned with eroding

the protections of exclusivity. Like courts in those jurisdictions, amici cite to

treatises authored by Arthur Larson, a prominent legal scholar in the area of

workers' compensation law. Decades ago, Larson warned that applying the

substantial certainty test would lead to a "flood of exceptions to exclusiveness" that

5
In Birklid, 127 Wn.2d at 865, we declined to adopt the substantial certainty test of
Michigan, South Dakota, Louisiana, and North Carolina, adopting for a narrower
standard. I would hold that the narrower standard we adopted requires a virtual
certainty that injury or death will result. See FLA. STAT.§ 440.11(1)(b) (intentional tort
when employer acts knowing that injury is "virtually certain" to occur); Van Dunk v.
Reckson Assocs. Realty Corp., 210 N.J. 449, 460-61, 45 A.3d 965, 972 (2012)
(substantial certainty standard requires a virtual certainty).

10
Walston (Gary) et ux. et at. v. The Boeing Co. et at., No. 88511-7
Wiggins, J., dissenting

would "threaten to destroy the defense altogether." Arthur Larson, Tensions of the

Next Decade, in NEW PERSPECTIVES IN WORKERS' COMPENSATION 21, 30 (John F.

Burton Jr. ed., 1989).

But more recently, Larson, along with other proponents of the "actual intent"

standard, admitted that jurisdictions adopting the "substantial certainty" standard

have not harmed their workers' compensation systems. 6 ARTHUR LARSON & LEX K.

LARSON, LARSON'S WORKERS' COMPENSATION LAW§ 103.04[4], at 103-39 (2014).

Larson acknowledges that "in most instances, the predicted flood of litigation has

not occurred, mainly because the courts, undoubtedly conscious of the dangers,

have been quite conservative about allowing these kinds of exceptions to

exclusivity. Most have been careful to limit their use to the most egregious cases."

/d. Indeed, while jurisdictions adopting the substantial certainty standard interpret

the scope of the intentional tort differently, the general consensus remains that the

exception is a narrow one. See Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 371-

72 (S.D. 1991) (majority rule in this country is to construe the intentional tort

exception narrowly); Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d

16, 33, 109 P.3d 805 (2005) (discussing Washington's historically narrow

interpretation of RCW 51.24.020).

In sum, workers' compensation is the exclusive remedy for negligent and

reckless acts. It is also well settled that employees may still sue in tort when an

employer specifically intends to cause injury. The difficulty lies in between, where

the employer is not motivated by a desire to harm but takes a calculated risk with

11
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

the lives and safety of employees. In these cases, we joined those jurisdictions

that have rejected the specific intent rule. See Birklid, 127 Wn.2d at 862-63. We

did not experience a flood of litigation following Birklid. Applying Birklid and ever

mindful of the IIA's purpose, I would clarify that certainty is more than a mere

possibility or substantial probability of injury but is something less than actual

certainty. Because this is not an expansion of Birklid, I find amici's fears

unwarranted.

IV. Walston Has Alleged Sufficient Facts To Survive Summary Judgment

Application of the intentional tort exception to workers' compensation is fact

specific. In Washington, four elements have proved helpful in determining if the

employer acted intentionally: (1) whether the employer knew of the dangerous

condition in advance, having observed the injuries or received complaints from

employees (Birklid, 127 Wn.2d at 853); (2) whether the employer assured

employees of their safety despite knowledge to the contrary (Baker v. Schatz, 80

Wn. App. 775, 778, 912 P.2d 501 (1996)); (3) whether the employer's

actions/omissions resulting in injury were ongoing and long term (Hope v. Larry's

Markets, 108 Wn. App. 185, 189-90, 29 P.3d 1268 (2001)); and (4) whether the

health impacts from exposure were predictable ( Vallandigham, 154 Wn.2d at 18)

(behavior of a child with special needs is not predictable ). 6

6
Other jurisdictions faced with the same issue consider similar factors. West Virginia's
statute specifically directs the trier of fact to find (1) that a specific unsafe working
condition existed in the workplace which presented a high degree of risk and a strong
probability of serious injury or death; (2) that the employer, prior to the injury, had actual

12
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

Here, Walston has alleged sufficient facts to survive summary judgment. City

of Sequim v. Malkasian, 157 Wn.2d 251, 261, 138 P.3d 943 (2006) (summary

judgment is appropriate if there are no genuine issues of material fact and if

reasonable minds could reach but one conclusion). In 1985, Walston's supervisor

forced him to work for a month under asbestos abatement contractors who wore

"moon suits." The work created a shower of asbestos dust that fell visibly on

Walston's workstation. When Walston and his co-workers asked for protective

equipment, their Boeing supervisor told them to go back to work.

At the time, evidence establishes that Boeing knew that asbestos dust was

dangerous and that employees required protection when working around asbestos.

OSHA had promulgated emergency regulations 13 years earlier to protect workers

from asbestos exposure. Boeing also knew that any amount of asbestos could

harm its workers; there is no safe level of exposure when it comes to asbestos.

knowledge of the existence of the specific unsafe working condition; (3) that the
specific unsafe working condition was a violation of a state or federal safety statute,
rule, or regulation; (4) that the employer nevertheless intentionally thereafter exposed
an employee to the specific unsafe working condition; and (5) that the employee
exposed suffered serious compensable injury or compensable death as a direct and
proximate result of the specific unsafe working condition. W.VA. CODE§ 23-4-2. New
Jersey requires courts to assess not only whether the employer acted with knowledge
that injury was substantially certain to occur but also whether the injury and the
circumstances surrounding it were part and parcel of everyday industrial life or plainly
outside the legislative grant of immunity. Millison v. E./. duPont de Nemours & Co.,
101 N.J. 161, 179, 501 A.2d 505 (1985). Michigan has reasoned that "when an
employer gives a worker discretion in deciding how to accomplish a task, and the
employee chooses a dangerous option, the employer cannot be 'certain' that an injury
will follow." Howard-Johnson v. V&S Detroit Galvanizing, LLC, 895 F. Supp. 2d 854,
861 (E.D. Mich. 2012).
13
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

One of Walston's co-workers had already died of mesothelioma from inhaling

asbestos fibers in the hammer shop.

Specifically, Boeing had detailed, documented knowledge that stripping

asbestos from overhead steam pipes presented an extraordinary danger and, thus,

hired a professional abatement team to remove the asbestos. Boeing also knew

during these types of asbestos abatement projects, "all workers in the area" should

be provided protective equipment, including an approved respirator for protection.

Indeed, the asbestos abatement contractors who worked in close proximity to

Walston wore "moon suits" with ventilators to protect them from breathing in

asbestos dust.

One of Walston's experts, Dr. Brodkin, concluded that Walston's month-long

1985 ordeal was a substantial contributing factor to his contracting mesothelioma

in 2010 and was "likely by far . . . the highest level of exposure" Walston

experienced during his Boeing career. Dr. Longo said of Boeing's 1985 conduct:

I've never seen anything like that. I was astonished. I showed this to
our [industrial hygiene] chair, and he used words like criminal that they
would do something like that. ... [T]his is such an outrageous example
of complete disregard for the workers in the facility ....

Given this evidence, I would hold that Walston has raised a material question of

fact as to whether Boeing deliberately intended to produce injury when it forced

workers to work under a shower of asbestos.

14
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

CONCLUSION

The IIA provides immunity for employer negligence. Employer liability for

intentional torts will still depend on the worker's ability to prove intent. An intentional

wrong must amount to a virtual certainty that bodily injury or death will result. A

mere probability, or knowledge that injury "could" result, is insufficient. This

interpretation comports with general legal principles and is true to the legislative

intent when considered in light of the underlying purposes of the IlA.

Washington has a "long and proud history of being a pioneer in the protection

of employee rights." Orinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 300,

996 P.2d 582 (2000). Accordingly, the court should be more, not less, vigilant in

protecting workers when employers deliberately expose their workers to

asbestos-a known deadly substance. The only way to deliberately "produce" the

disease of mesothelioma is to intentionally and knowingly cause workers to inhale

asbestos. It would undermine the purpose of the statute if an employer could

implant a ticking time bomb in an employee's body and escape liability simply

because the particular injury that resulted could not be predicted with absolute

certainty. I would hold that the trial court properly denied Boeing's motion for

summary judgment, and therefore, I would reverse the Court of Appeals, reinstate

the trial court's denial of Boeing's summary judgment motion, and remand for

further proceedings.

15
Walston (Gary) et ux. eta/. v. The Boeing Co. eta/., No. 88511-7
Wiggins, J., dissenting

Accordingly, I dissent.

16