Ira Martel v. Connor Contracting, Inc., Jason Clark, and Stephen Connor

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2018 VT 107

No. 2017-342

Ira Martel Supreme Court

On Appeal from
v. Superior Court, Washington Unit,
Civil Division

Connor Contracting, Inc., Jason Clark, and February Term, 2018
Stephen Connor

Mary Miles Teachout, J.

Vincent Illuzzi, Orleans, for Plaintiff-Appellant.

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for
Defendants-Appellees Connor Contracting, Inc. and Stephen Connor.

John E. Brady of Brady/Callahan, Springfield, for Defendant-Appellee Jason Clark.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. This case is about two separate exceptions to the exclusivity rule

of workers’ compensation, the first of which applies when an employee is injured other than by

accident, and the second of which applies when a person or entity can be held personally liable for

an employee’s injuries. Plaintiff Ira Martel appeals the trial court’s decision granting summary

judgment on his personal injury claims in favor of his employer, defendant Connor Contracting,

Inc., and two co-employees, defendants Jason Clark and Stephen Connor. We hold that plaintiff’s

action against Connor Contracting is barred by the exclusive remedy provision of Vermont’s

Workers’ Compensation Act. We further hold that plaintiff’s action against the individual
defendants is barred because the acts that plaintiff alleges give rise to liability fell within the scope

of a nondelegable corporate duty and defendants, therefore, cannot be held personally liable for

plaintiff’s injuries. Accordingly, we affirm.

¶ 2. The following facts are undisputed except where otherwise noted. In August 2013,

plaintiff was part of a four-person crew employed by Connor Contracting to perform roof repair

work at the Montpelier Health Center. Defendant Jason Clark was the worksite foreperson, and

defendant Stephen Connor was the treasurer of Connor Contracting and one of the company

owners. While working on the project, plaintiff and the other members of the roofing crew used a

personal-fall-arrest system (PFAS), which was safety equipment provided by Connor Contracting

and required by the company’s safety program rules, the federal Occupational Safety and Health

Administration, and the Vermont Occupational Safety and Health Administration (VOSHA). See

29 C.F.R. § 1926.501(b)(2)(i) (2018) (requiring that employees be protected from falling by

guardrail, safety net, or PFAS when working six feet or more above lower level); CFR 1910

Subpart D Walking Working Surfaces; Subpart I Personal Protective Equipment, Code of Vt.

Rules 24 050 004, http://labor.vermont.gov/wordpress/wp-content/uploads/Subpart-D_Clean-

text.pdf [https://perma.cc/B8C8-RGAE] (incorporating 29 C.F.R. § 1910.28(b)(1)(i) by reference

and requiring employers to provide employees fall protection, including guardrail, safety net, or

personal fall protection system, for work performed four feet or more above lower level). The

PFAS is a four-part safety system: a harness worn by the worker; an anchor, which is typically

part of the building where the work is taking place; a lanyard; and a D ring. The lanyard is attached

to the anchor point and the D ring. The PFAS is designed to catch users if they fall off the elevated

work surface and thereby prevent a potentially injuring impact.

¶ 3. The Health Center roofing project was scheduled for completion on August 13,

2015. Plaintiff and two other members of the original work crew remained at the site on the last

2
day of the project, completing the final work on the soffit of the building’s main roof.1 Defendant

Clark, the worksite foreman, was not on site. The soffit work had to be completed by standing on

the roof of an entrance porch below the main roof because the mechanical boom lift at the site

could not reach this particular area of the roof. The entrance porch roof was ten to fifteen feet

above the ground. Plaintiff was completing the soffit work when he fell from the edge of the roof,

hit the ground below, and was injured.2 He was not wearing a PFAS at the time he fell. The parties

dispute whether a complete PFAS system was still at the project site on that day and available for

plaintiff’s use. Plaintiff alleges that Connor Contracting had moved the D ring component of the

PFAS to a different worksite the day before. More specifically, he alleges that defendant Clark

removed the D ring from the site under the direction of defendant Stephen Connor. Thus, plaintiff

alleges that he was left with only a harness and lanyard at the site and no way to attach the harness

to an anchor point. Connor Contracting disputes the removal of the PFAS and states that defendant

Clark left two harnesses and lanyards at the project site.3

¶ 4. Plaintiff filed a workers’ compensation claim after his accident and received

benefits. In July 2016, plaintiff filed this action, alleging separate causes of action against Connor

Contracting and the individual defendants. Plaintiff sought damages in both—against Connor

1
The soffit is the underside of the eave of the roof.
2
The record does not describe the precise nature of the work that plaintiff was performing
on the soffit when he fell. The trial court’s summary judgment decision emphasized that plaintiff
was working on a flat roof when he fell, for example by stating that “there is no indication in the
facts that anyone should have known that Mr. Martel would fall from the roof. Nothing in the
record explains why being on a flat roof presents such an acute risk of injury that it is substantially
certain that a fall will occur.” The trial court’s decision does not mention that plaintiff was working
on the soffit, nor does that decision consider whether work on the underside of the edge of the roof
above could affect the likelihood of injury.
3
Defendants’ filings in the trial court discuss only the harness and lanyard and do not
mention whether the D ring was left on site. On appeal, defendants “dispute that the safety
equipment (harness and lanyard) that remained on site was insufficient to have prevented Mr.
Martel’s fall if he had used it as he was trained.”
3
Contracting on the theory that the company had acted with substantial certainty of causing him

injury or death when it removed parts of the PFAS from the Health Center worksite, and against

the individual defendants on a coemployee-personal-liability theory based on the same alleged

removal of required safety equipment. The trial court granted defendants summary judgment on

both claims, deciding that workers’ compensation provided plaintiff’s sole remedy for the injuries

he sustained, and accordingly plaintiff could not pursue an alternate remedy against either Connor

Contracting or the individual defendants on the facts alleged. Plaintiff now appeals.

¶ 5. This Court reviews “summary judgment decisions de novo, using the same standard

as the trial court.” Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129

A.3d 108. Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a).

A fact is material if it might affect the outcome of the action. Gauthier, 2015 VT 108, ¶ 14. When

we consider the facts, “we give the nonmoving party the benefit of all reasonable doubts and

inferences.” H & E Equip. Servs., Inc., v. Cassani Elec., Inc., 2017 VT 17, ¶ 10, 204 Vt. 559 , 169

A.3d 1308 (quotation and alteration omitted). “Where the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Gauthier,

2015 VT 108, ¶ 14 (quotation omitted).

¶ 6. Plaintiff raises two arguments on appeal. First, he argues that the trial court should

have denied summary judgment for defendant Connor Contracting because the removal of PFAS

components raises a jury question concerning whether Connor Contracting acted with the level of

intent to injure plaintiff required to circumvent the exclusive remedy provision of the Workers’

Compensation Act under Vermont law. Second, he asserts that the trial court should have denied

summary judgment for the individual defendants because the actions of defendants Clark and

4
Connor were outside of the scope of nondelegable corporate duties and thus gave rise to personal

liability for plaintiff’s injuries. We begin with plaintiff’s argument as to Connor Contracting.4

¶ 7. Plaintiff’s claim against Connor Contracting depends on whether his injuries can

be said to have occurred “accidentally.” If they occurred accidentally, then the Workers’

Compensation Act bars an alternate remedy. Conversely, if plaintiff’s injuries can be characterized

as nonaccidental, then plaintiff may pursue an alternate remedy. Our analysis of this question

therefore starts with the workers’ compensation statute, which in the usual course provides an

exclusive remedy—“the rights and remedies granted by [workers’ compensation] to an employee

on account of a personal injury for which he or she is entitled to compensation . . . shall exclude

all other rights and remedies of the employee . . . at common law or otherwise on account of such

injury.” 21 V.S.A. § 622. An employee is entitled to collect workers’ compensation benefits if

the employee “receives a personal injury by accident arising out of and in the course of

employment by an employer.” Id. § 618(a)(1) (emphasis added). In this case, it is undisputed that

plaintiff was a statutory employee of Connor Contracting for purposes of the Workers’

Compensation Act, defendant Connor Contracting was plaintiff’s statutory employer, and plaintiff

was injured “in the course of [his] employment.” Id.; see also id. §§ 601(3) (defining employer),

601(14) (defining employee). The only question, then, is whether plaintiff’s injuries occurred “by

4
Plaintiff argued in his complaint, and again in his opposition to defendants’ motion for
summary judgment, that his injuries could not be said to have occurred accidentally because
removal of the PFAS components made his injuries “substantially certain” to occur. He refocuses
his argument on appeal, framing it instead to suggest that his injuries cannot be said to have
occurred accidentally because removal of the PFAS components indicates an “intent to injure”
him. Defendants argue that plaintiff waived his argument that defendants intentionally injured
him by focusing on the substantial certainty of injury in the trial court. Jordan v. Nissan N. Am.,
Inc., 2004 VT 27, ¶ 10, 176 Vt. 465, 853 A.2d 40 (“It is well settled . . . that matters not raised at
trial may not be raised for the first time on appeal.”). Because both the intent-to-injure and
substantial-certainty tests are premised on the idea that an employer has acted in such a way that
an employee has been injured other than by accident, we consider plaintiff’s essential argument
preserved. That is, because plaintiff’s argument in both the trial court and on appeal has essentially
been that his injuries were not sustained “accidentally,” we do not consider the precise intent
element of plaintiff’s claim dispositive for purposes of preservation.
5
accident” as that phrase is defined within the context of workers’ compensation. Id. § 618(a). As

explained more fully below, we hold that the trial court correctly granted summary judgment to

Connor Contracting on this question.

¶ 8. Three cases are relevant to our discussion here: Kittell v. Vermont Weatherboard,

Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam); Mead v. Western Slate, Inc., 2004 VT 11,

176 Vt. 274, 848 A.2d 257; and Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 2009 VT 91,

186 Vt. 369, 987 A.2d 292. In Kittell, the earliest of these three cases, the plaintiff alleged that he

was injured after his employer had him operate a saw, without any training or experience, from

which the employer had removed all safety equipment, and that this constituted “wanton and wilful

acts and omissions” that should permit recovery beyond workers’ compensation. 138 Vt. at 440,

417 A.2d at 926. This Court framed the issue as “whether [the plaintiff’s] complaint pleads a cause

of action outside the scope of” workers’ compensation—put more precisely, the Court had to

determine “whether plaintiff’s allegation of wilful and wanton conduct leading to a sudden but

foreseeable injury constitutes personal injury by accident.” Id. (quotation omitted). We explained:

The overwhelming weight of authority in other jurisdictions is that
“the common-law liability of the employer cannot be stretched to
include accidental injuries caused by the gross, wanton, wilful,
deliberate, intentional, reckless, culpable, or malicious negligence,
breach of statute, or other misconduct of the employer short of
genuine intentional injury.”

Id. at 441, 417 A.2d at 927 (quoting 2A A. Larson, Workmen’s Compensation Law § 78.13, at 13-

5 (1976)). We accordingly held that “[n]othing short of a specific intent to injure falls outside the

scope of the [Workers’ Compensation] Act,” and that, because the plaintiff alleged wilful and

wanton action, not action taken with specific intent to injure, he could not pursue an alternate,

common-law remedy in place of workers’ compensation. Id.

¶ 9. Mead presented essentially the same issue as Kittell. There, a quarry employee

injured in a rock fall at his worksite collected workers’ compensation but also filed a personal

6
injury action against his employer, alleging that evidence of a recent rock fall at the same location

should have prompted the employer to stop operations at that location. We described the

employee’s claim as “alleging that [the employer] had committed an intentional tort by failing to

order [the employee] to cease operations and leave the area after the initial rock fall, resulting in a

substantial certainty of injury.” 2004 VT 11, ¶ 4. The trial court denied the employer’s motion to

dismiss, which argued that the Workers’ Compensation Act barred the employee from seeking an

alternate remedy, and the action proceeded to a jury trial. The court instructed the jury that in

order to find for the employee, the jury must conclude that he had presented sufficient evidence to

prove that his employer “had the ‘specific intent to injure him,’ but that such intent could be

established in one of two ways: that [the] defendants either ‘had the purpose or desire to cause him

injury or that although the [d]efendants lacked such purpose or desire they knew to a substantial

certainty that their actions would bring about his injury.’ ” Id. ¶ 6; see also Restatement (Second)

of Torts § 8A (1965) (“The word ‘intent’ is used throughout the Restatement of this Subject to

denote that the actor desires to cause consequences of his act, or that he believes that the

consequences are substantially certain to result from it.”); Reed Tool Co. v. Copelin, 689 S.W.2d

404, 406 (Tex. 1985) (stating workers’ compensation does not bar alternate remedy where

employee is injured intentionally, specific intent to injure is “fundamental difference” between

negligent and intentional injuries, and adopting two-prong Restatement (Second) of Torts § 8A

definition of intent as definition of specific intent to injure). Thus, while the broader issue in Mead

was like that in Kittell, the narrow question before the Court was whether the trial court’s

instructions to the jury were correct—that intent to injure could be proved where an employer had

knowledge of the substantial certainty of injury.

¶ 10. We did not answer this narrow question in Mead. Instead, we explained that the

evidence presented in support of the employee’s claim was insufficient to satisfy either intent to

injure or substantial certainty. Mead, 2004 VT 11. ¶ 18. We further explained that, “[e]ven

7
assuming that we were receptive to modifying Kittell consistent with the trial court’s

approach . . . we do not believe that the record here ‘fairly and reasonably’ supports a rational

inference that [the employer] knew to a substantial certainty their actions would result in injury to

[the employee].” Id. ¶ 17. Though the facts of Mead meant that we did not need to engage directly

with the trial court’s interpretation of Kittell, this statement means that Kittell’s scope is narrow—

and that we would need to modify the holding in Kittell to permit an injured employee to seek a

remedy other than workers’ compensation where the employer, although having no intent to injure,

knew that injury to the employee was substantially certain to occur. Put another way, Mead

supports reading Kittell to hold that an injury is intentional only when an employer “desires to

cause [the] consequences of his act,” but not when the employer “believes that the consequences

are substantially certain to result from” an act. Restatement (Second) of Torts § 8A.

¶ 11. Stamp Tech, like Kittell and Mead, arose from an employee’s claim that his

workplace injuries were not “an accident” and consequently that workers’ compensation did not

bar a common law remedy, in this case for injuries sustained when a 200-ton press machine that

may not have had safety guards crushed the employee’s arm. 2009 VT 91, ¶¶ 25-26. As in Mead,

both the substantial certainty and intent to injure standards came into play in the trial court; here,

in the trial court’s decision granting summary judgment in favor of the employer on the exclusive-

remedy question, wherein the court addressed the employee’s claim under both standards. Id. ¶ 28.

In reviewing that decision, and ultimately reversing it, we expressly avoided considering whether

to adopt the substantial-certainty-of-injury standard—“[w]ithout expressing an opinion as to

whether we would entertain [the employee’s] invitation to adopt some form of a substantial

certainty exception to the Vermont Workers’ Compensation Act’s exclusive remedy provision, we

hold that the superior court erred in granting summary judgment in favor of [the employer].” Id.

¶ 29.

8
 ¶ 12. Nonetheless, plaintiff in this case argues that our decision in Stamp Tech may be

read to implicitly adopt and apply a substantial-certainty standard rather than Kittell’s intent-to-

injure standard. We disagree. Our holding in Stamp Tech was narrow and turned on the kind of

decision on appeal—summary judgment—and the correct standard of review for that decision.

The trial court had concluded in its summary judgment decision in favor of the employer that “the

most that [could] be adduced from the undisputed facts, and the evidence in the record, [was] that

[the employer] knowingly permitted a hazardous work condition to exist.” Id. ¶ 30 (alterations

omitted). This statement suggests that the trial court found that intent to injure under Kittell is not

satisfied simply because hazardous work conditions exist. We explained that the trial court’s

decision suggested that the employee had not been given the benefit of reasonable doubts and

inferences, as the nonmoving party must be on summary judgment. Id. ¶ 31; see also V.R.C.P.

56(a). We accordingly reversed because the record included disputed facts—whether the safety

equipment on the press machine existed and, if it did, whether it had been removed—that, when

viewed in the light most favorable to the employee, were material and thus rendered summary

judgment inappropriate. Stamp Tech, 2009 VT 91, ¶ 31.

¶ 13. Plaintiff’s argument concerning the potential disconnect between Stamp Tech’s

avoidance of whether to adopt the substantial-certainty standard and what plaintiff sees as the

decision’s implicit application of exactly that standard also reaches a footnote in the opinion. The

footnote addressed the dissent’s argument that installation of some safety equipment on the press

machine “belie[d] any claim that [the employer] intended to injure its employees with this

particular machine.” Id. ¶ 37 (Burgess, J., dissenting). In response the majority wrote:

We disagree with the inference the dissent draws from “the
undisputed fact that the employer installed light guards on the
machine.” When viewed in isolation, the fact may perhaps be
construed as “belying any claim that the employer intended to injure
its employees.” Viewed in the appropriate context and in the light
most favorable to [the employee], however, this suggests that [the
employer] appreciated the dangerousness of the press, but
9
 nevertheless rendered the light guards ineffective by removing the
hard guard. We cannot say that a reasonable fact-finder could not
infer intent to injure based on these circumstances.

Id. ¶ 31 n.5 (citations omitted) (alterations omitted). As with the central holding in Stamp Tech,

when considered against the backdrop of the kind of decision on appeal—and bearing in mind the

correct standard of review for that decision—this footnote simply means that the record included

disputed material facts, rendering summary judgment inappropriate. Thus, Stamp Tech did not

broaden Kittell’s reach, nor did it impliedly adopt a substantial-certainty standard.

¶ 14. Kittell remains the standard in Vermont, and specific intent under Kittell is required

to prove that an injury that would otherwise be compensable through workers’ compensation has

not occurred accidentally and the employee may, therefore, pursue an alternate remedy. Intent to

injure under Kittell is a high bar—it reaches only those instances where an employer deliberately

causes an employee an injury. See Kittell, 138 Vt. at 440, 417 A.2d at 926 (requiring more than

that injury be “sudden but foreseeable”).

¶ 15. Plaintiff has not alleged facts that reach Kittell’s bar. Even taking the facts in the

light most favorable to plaintiff and assuming, therefore, that Connor Contracting rendered the

PFAS useless by removing the D ring and preventing plaintiff from attaching a harness to an

anchor point, the record does not include facts permitting the inference that Connor Contracting

deliberately intended to harm plaintiff. That is, the record does not give rise to a reasonable

inference that Connor Contracting specifically intended to injure plaintiff, and consequently does

not give rise to a reasonable inference that plaintiff’s injuries fall outside the spectrum of injuries

occurring “by accident.” 21 V.S.A. § 618(a)(1). Compare De Coigne v. Ludlum Steel Co., 297

N.Y.S. 636, 641 (App. Div. 1937) (concluding workers’ compensation did not provide exclusive

remedy where complaint charged employer “with wrongfully, intentionally, and knowingly selling

and delivering to [employee] for immediate consumption food containing poisonous and

deleterious ingredients, rendering the same injurious to health,” employee ate food, and became

10
sick), with Santiago v. Brill Monfort Co., 205 N.Y.S.2d 919, 920 (App. Div. 1960) (concluding

workers’ compensation exclusivity provision barred employees’ claims that employer’s “wanton,

intentional, unlawful and affirmative wrongful acts in removing certain safety guards from

machines operated by [employees] . . . constituted an assault on [employees] by [employer]”

because employees did not allege “guards were removed with a deliberate intent to injure” but

instead alleged “removal was for the sole purpose of increasing production for greater increment

and profits” (quotation omitted)).

¶ 16. Plaintiff essentially asks us to hold that the failure to comply with safety regulations

is sufficient in and of itself to meet the level of intent necessary to circumvent workers’

compensation as an exclusive remedy. Such a holding would be contrary to Vermont statute.

Employers have a duty to “furnish to each of [their] employees employment and a place of

employment which are free from recognized hazards that are causing or are likely to cause death

or significant physical harm to [their] employees” and to “comply with safety and health standards

promulgated under the VOSHA Code.” 21 V.S.A. § 223(a); see also id. § 201 (delegating

rulemaking authority to promulgate regulations consistent with federal Occupational Safety and

Health Act of 1970 through state VOSHA Code). But the statute also provides that:

Nothing in the VOSHA Code shall be construed to supersede or in
any manner affect the workers’ compensation laws of this
State . . . or enlarge or diminish or affect in any other manner the
common law or statutory rights, duties, or liabilities of employers
and employees under any law with respect to injuries, diseases, or
death of employees arising out of, or in the course of employment.

Id. § 222(2). Given this statutory restriction, and in the absence of facts giving rise to an inference

of specific intent, we cannot conclude that Connor Contracting’s failure to provide a working

PFAS is sufficient to permit plaintiff to seek a remedy beyond workers’ compensation.

¶ 17. Because we hold that under Vermont law an injured employee must show specific

intent to injure, and that plaintiff has not alleged facts that would support a finding of specific

11
intent here, we need not address plaintiff’s argument concerning the likelihood or certainty that he

would be injured because Connor Contracting removed PFAS components. We turn now to

plaintiff’s remaining argument, and as with his first argument, we affirm the trial court’s decision

granting the individual defendants summary judgment.

¶ 18. Plaintiff argues that defendants Jason Clark, the Health Center project foreperson,

and Stephen Connor, an officer of Connor Contracting, are individually liable for his injuries

because they were not performing a duty of Connor Contracting when they removed PFAS

components from the worksite. This removal, plaintiff argues, falls outside the scope of a

corporation’s nondelegable duty to provide a safe workplace and amounts to a breach of the

individual defendants’ personal duty to plaintiff. We disagree.

¶ 19. As explained above, workers’ compensation generally provides employees injured

accidentally in the course of their employment an exclusive remedy. 21 V.S.A. § 622. One

exception to this presumption of exclusivity applies to intentionally inflicted injuries; another is

for injuries caused by someone other than the employer:

Where the injury for which compensation is payable under [the
Workers’ Compensation Act] was caused under circumstances
creating a legal liability to pay the resulting damages in some person
other than the employer, the acceptance of compensation benefits or
the commencement of proceedings to enforce compensation
payments shall not act as an election of remedies, but the injured
employee . . . may also proceed to enforce the liability of such third
party for damages in accordance with the provisions of this section.

Id. § 624(a). A co-employee or corporate officer may be subject to personal liability for acts or

omissions under this section “only for those negligent acts or omissions that breach a personal,

rather than a nondelegable corporate, duty owed to a plaintiff employee.” Dunham v. Chase, 165

Vt. 543, 543, 674 A.2d 1279, 1280 (1996) (mem.). Thus, the determination of whether a

coemployee may be held personally liable for an employee’s injuries focuses on “the nature of the

12
obligation the plaintiff alleges has been breached.” Garrity v. Manning, 164 Vt. 507, 513, 671

A.2d 808, 811 (1996).

¶ 20. We have consistently held that an employer’s duty to provide a safe workplace is a

nondelegable corporate duty. See, e.g., Chayer v. Ethan Allen, 2008 VT 45, ¶ 24, 183 Vt. 439,

954 A.2d 783; Dunham, 165 Vt. at 544, 674 A.2d at 1280; Garrity, 164 Vt. at 513, 671 A.2d at

811. This duty includes the specific “duty to provide safe equipment for the execution of the

employment task.” Gerrish v. Savard, 169 Vt. 468, 473, 739 A.2d 1195, 1199 (1999).

Accordingly, a plaintiff “must allege something more than a breach of the corporate duty to provide

a safe workplace” to impose co-employee, personal liability on the defendants. Dunham, 165 Vt.

at 544, 674 A.2d at 1280 (quotation omitted). In this case, plaintiff has alleged only acts that fall

within the scope of nondelegable corporate duties.

¶ 21. Plaintiff’s argument centers on removal of the PFAS components from the

worksite. But even if a complete PFAS was not available to plaintiff on the date of his injuries,

and even assuming the individual defendants negligently removed PFAS components, these facts

still do not fall outside the scope of the nondelegable duty to provide a safe workplace and safe

equipment for an employee. Gerrish is directly on point on this question. There, the employee

alleged that the employer breached a personal duty by failing to repair a crane’s faulty brake and

frayed cable, such that the crane cable snapped and a granite block fell on the employee, causing

him injury. We explained that the employer’s decisions still fell within the scope of the

nondelegable corporate duty, even assuming the employer negligently decided that the crane could

operate safely without repairing either the brake or the cable. Gerrish, 169 Vt. at 473, 739 A.2d at

1199. Though the employer “altered the working environment and thereby increased the risk for

all employees,” the nature of the duty implicated meant that the employer was nonetheless

“exercising managerial prerogatives”—and because these “managerial prerogatives” were

exercised “in fulfillment of the employer’s nondelegable duties,” the employer’s actions were not

13
such as would give rise to personal liability for the employee’s injuries. Id. at 473-74, 739 A.2d

at 1199-1200. The same reasoning applies here. Even if the individual defendants negligently

removed the PFAS, the duty to provide a safe workplace is a nondelegable corporate duty and the

presence, or absence, of the PFAS is part of the safe workplace equation.5 Thus, the facts alleged

by plaintiff show only that the individual defendants acted in the exercise of their “managerial

prerogative” to fulfill a corporate duty, and accordingly the individual defendants may not be held

personally liable for plaintiff’s injuries under 21 V.S.A. § 624(a).

Affirmed.

FOR THE COURT:

Associate Justice

¶ 22. ROBINSON, J., concurring in the mandate only. I agree that the trial court’s

decision granting summary judgment to defendant Connor Contracting should be affirmed because

plaintiff failed to provide sufficient evidence to prove that defendant acted with the requisite intent

to allow plaintiff to avoid the exclusive-remedy bar of the Workers’ Compensation Act. But I

disagree with the majority’s reasoning, and in particular its unnecessary decision to readopt the

specific-intent standard set forth in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d

926 (1980). With respect to Connor Contracting, I therefore concur in the mandate only.6

5
In plaintiff’s brief, he alleges that the individual defendants removed PFAS equipment
from the jobsite because they intended to use it themselves at another site. Plaintiff does not cite
the record for this alleged fact. However, even if this is true, it would not affect the conclusion
here that plaintiff failed to present evidence that the individual defendants committed any acts
outside the scope of the employer’s nondelegable corporate duties.
6
I agree that the trial court properly granted summary judgment to the individual
defendants, Jason Clark and Stephen Connor, for the reasons stated by the majority.
14
 ¶ 23. I would not readopt the Kittell standard in this case. We don’t need to in order to

resolve this case, as plaintiff’s claim fails under any potentially applicable standard. I would not

choose to do so for two related reasons. First, I would not depart from our approach in recent cases

of deferring the question until we are presented with an appropriate case. Second, around the

country, this area of law is in flux. Rather than adding another zag to the zig-zag of our law on

this issue, I would defer deciding this question until presented with a case that requires us to reach

it, benefitting in the meantime from the lessons of our sister states and the developing law around

the country.

¶ 24. We need not determine which potential definition of “intent” applies because

plaintiff failed to present sufficient facts to satisfy either an intent-to-injure or a substantial-

certainty standard. Taken in the light most favorable to plaintiff, the facts could support a

determination that employer disabled the personal fall arrest system by removing an essential part

of the safety system from the worksite, preventing plaintiff from attaching a harness to an anchor

point. However, there is no evidence that employer specifically intended to injure plaintiff by

removing the part. Furthermore, the undisputed evidence is that plaintiff was instructed to work

on a flat roof. Plaintiff has failed to show that he was substantially certain to fall off the roof in

question or that his employer knew with substantial certainty that plaintiff would be harmed

without the safety equipment under the circumstances. Thus, plaintiff’s appeal can be resolved

without defining the scope of the intentional-tort exception to the exclusivity bar.

¶ 25. One reason I would not readopt the Kittell definition of intent in this case is that we

have consistently and appropriately declined to decide whether the definition of “intentional” acts

is limited by our analysis in Kittell when the circumstances of a case have not required us to reach

the question. In Kittell, this Court recognized an exception to the Workers’ Compensation Act’s

application and associated exclusivity bar for intentional torts. Id. at 441, 417 A.2d at 927. The

Court reasoned that the Act provides benefits, which are the exclusive remedy, for an employee

15
who is injured by accident arising out of and in the course of employment, id. at 440, 417 A.2d at

926, but not for intentional injuries. Following the near-universal rule at the time, the Court

defined “intentional” narrowly, holding that “[n]othing short of a specific intent to injure falls

outside the scope of the Act.” Id. at 441, 417 A.2d at 927 (citing decisions from other

jurisdictions). We therefore affirmed the dismissal of plaintiff Kittell’s personal-injury action

against his employer because although he alleged that he was an inexperienced worker ordered to

work without instructions or warnings at a multiple saw end trim from which the employer had

removed all safety devices, he failed to assert that the employer acted with the intent to injure him.

Id.

¶ 26. Twenty-four years later, we questioned the continuing vitality of the Kittell

definition of “intent” in Mead v. Western Slate, Inc. 2004 VT 11, 176 Vt. 274, 848 A.2d 257. In

Mead, a quarry employee alleged that his supervisor and employer had committed an intentional

tort by failing to order him to cease operations and leave the quarry after a rock fall had occurred.

The trial court instructed the jury that the employee could prove the defendants had the requisite

specific intent to injure him by showing either that the defendants had the “purpose or desire to

cause him injury” or that “they knew to a substantial certainty that their actions would bring about

his injury.” Id. ¶ 6. The jury found in favor of the employee, finding that the defendants knew to

a substantial certainty that their actions or inaction would injure him.

¶ 27. We reversed on appeal. In doing so, we explored the significant evolution in the

law regarding the scope of the exclusivity bar in courts across the country over the decades since

Kittell was decided. Id. ¶¶ 13-16. We noted that a growing number of jurisdictions had expanded

the definition of specific intent “to include instances where the employer not only intends to injure

the worker, but engages in conduct with knowledge that it is substantially certain to cause injury

or death.” Id. ¶ 13 (citing decisions). Some states had adopted a more stringent version of the test

16
requiring virtual certainty of injury, while still others had chosen to retain the strict intent-to-injure

standard. Id. ¶¶ 14-15.

¶ 28. We ultimately concluded that it was unnecessary to decide whether to adopt a

substantial-certainty standard, because the evidence presented to the jury was insufficient to

support its decision in favor of the plaintiff even under that less stringent test. Id. ¶ 17.

Specifically, although the plaintiff showed that there was a risk of a second rockfall in the quarry,

there was no evidence of when such a fall would occur or that previous falls had led to injuries

under similar circumstances. Id. ¶ 18. The evidence therefore could not support a reasonable

inference that the defendants knew with substantial certainty that directing the plaintiff to continue

to work in the quarry until the supervisor returned from an errand to inspect the area would result

in the plaintiff’s injury. Id. In reaching this conclusion, we neither reaffirmed nor rejected the

more restrictive definition of intent in Kittell, leaving the door open to a future determination of

the proper definition of “intent.” Id. ¶ 17.

¶ 29. In a more recent case, we again deferred judgment on the question of whether, for

purposes of the exception to workers’ compensation exclusivity, an employer “intends” to cause

an injury that is “substantially certain” to arise from the employer’s intentional actions. See Stamp

Tech, Inc. ex rel. Blair v. Lydall/Thermal Acoustical, Inc., 2009 VT 91, 186 Vt. 369, 987 A.2d

292. In Stamp Tech, an injured worker sued his employer after his arm was crushed in an industrial

press, claiming that the employer intentionally created the dangerous condition that caused his

injury by removing a “hard guard” from the press. Id. ¶ 1. The trial court granted summary

judgment to the employer on the ground that the employee had not set forth sufficient evidence to

establish an exception to the exclusivity bar under either the Kittell specific-intent standard or the

substantial-certainty standard discussed in Mead.

¶ 30. This Court reversed and remanded. We declined to “express[] an opinion as to

whether we would entertain [the] plaintiff’s invitation to adopt some form of a substantial certainty

17
exception” to the exclusive remedy provision. Id. ¶ 29. However, we concluded that it was

premature for the trial court to grant summary judgment to the employer “on the issue of intent or

substantial certainty” because the facts alleged by the employee were “susceptible to competing

inferences” and there were facts in dispute, i.e., whether the hard guard ever existed and, if so,

whether the employer removed it from the press. Id. ¶ 31.7

¶ 31. I don’t deny that this posture leaves the law lacking clarity. However, I am loathe

to readopt the Kittell definition of intent when we have not been presented with a case that requires

us to do so. See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) (“While

not slavish adherents to stare decisis, [i.e., the requirement that courts follow precedential judicial

decisions,] we generally require more than mere disagreement to overturn a decision, particularly

one of such recent vintage.” (citation omitted))

¶ 32. I’m especially reluctant to dive in to this question prematurely given the significant

developments across the country in this area of the law. Kittell represents an extremely stringent

view of intent from which many states have since evolved. See Mead, 2004 VT 11, ¶ 13

(summarizing cases). The West Virginia Supreme Court of Appeals led the way in 1978 when it

ruled that an employer could be held liable in tort for “wilful, wanton, and reckless misconduct.”

Mandolidis v. Elkins Indus., Inc., 246 S.E.2d 907, 914 (W.Va. 1978).8 During the 1980s and

7
In dissent, Justice Burgess argued that by reversing summary judgment in the absence of
any evidence that the employer had a specific intent to injure the claimant, the majority implicitly
adopted a definition of intent broader than the specific-intent-to-injure standard of Kittell. Id. ¶ 32
(Burgess, J., dissenting).
8
The West Virginia legislature fleshed out this holding by statute in 1983. West Virginia
law currently requires a showing that “the employer or person against whom liability is asserted
acted with a consciously, subjectively and deliberately formed intention to produce the specific
result of injury or death to an employee,” or “[t]hat the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working condition and of the high degree of risk
and the strong probability of serious injury or death presented by the specific unsafe working
condition.” W. Va. Code Ann. § 23-4-2(d)(2)(A)-(B). A specific unsafe working condition is
defined as “a violation of a state or federal safety statute, rule or regulation, whether cited or not,
18
1990s, several other states followed suit by broadening their definition of intent for purposes of

the exception to the workers’ compensation exclusivity bar. Courts in Connecticut, Louisiana,

Michigan, New Jersey, North Carolina, Ohio, Oklahoma, South Dakota, and Texas have held that

an employer could be sued in tort if it knew that its conduct was “substantially certain” to cause

injury or death to an employee. Suarez v. Dickmont Plastics Corp., 639 A.2d 507, 512 (Conn.

1994); Bazley v. Tortorich, 397 So. 2d 475, 482 (La. 1981); Beauchamp v. Dow Chem. Co., 398

N.W.2d 882, 893 (Mich. 1986); Millison v. E.I. du Pont de Nemours & Co., 501 A.2d 505, 514

(N.J. 1985); Woodson v. Rowland, 407 S.E.2d 222, 228 (N.C. 1991); Fyffe v. Jeno’s, Inc., 570

N.E.2d 1108, 1112 (Ohio 1991); Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 25, 127 P.3d 572;

VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 875-76 (S.D. 1983); Reed Tool Co. v.

Copelin, 689 S.W.2d 404, 407 (Tex. 1985).9 Some lower New York courts have also recognized

this modern test. Acevedo v. Consol. Edison Co. of N.Y., 596 N.Y.S.2d 68, 71 (App. Div. 1993);

Finch v. Swingly, 348 N.Y.S.2d 266, 268 (App. Div. 1973).

¶ 33. The following excerpt from a Connecticut Supreme Court opinion aptly

summarizes the reasoning common to these decisions:

The substantial certainty test differs from the true intentional tort
test but still preserves the statutory scheme and the overall purposes
of the [workers’ compensation] act. The problem with the
intentional tort test, i.e., whether the employer intended the specific
injury, appears to be that it allows employers to injure and even kill
employees and suffer only workers’ compensation damages so long
as the employer did not specifically intend to hurt the worker.
Prohibiting a civil action in such a case would allow a corporation
to “cost-out” an investment decision to kill workers. The
“substantial certainty” test provides for the “intent to injure”

or of a commonly accepted and well-known safety standard within the industry or business of the
employer.” Id. § 23-4-2(d)(2)(B)(iii).
9
The Michigan, Ohio, and Oklahoma legislatures subsequently modified the scope of the
exception in those states to return to a specific-intent standard. See Travis v. Dreis & Krump Mfg.
Co., 551 N.W.2d 132, 142 (Mich. 1996); Houdek v. ThyssenKrupp Materials N.A., Inc., 2012-
Ohio-5685, ¶ 23, 983 N.E.2d 1253; Okla. Stat. tit. 85A, § 5(B)(2).

19
 exception to be strictly construed and still allows for a plaintiff to
maintain a cause of action against an employer where the evidence
is sufficient to support an inference that the employer deliberately
instructed an employee to injure himself.

Suarez, 639 A.2d at 512 (citations and quotations omitted).10

¶ 34. Some jurisdictions have adopted a third standard in defining “intent,” requiring a

showing that the employer had knowledge that the injury was “certain” or “virtually certain” to

occur (as opposed to “substantially certain”). See Figueroa v. Delant Constr. Co., 118 So. 3d 272,

272 (Fla. Dist. Ct. App. 2013); Helf v. Chevron U.S.A., Inc., 2009 UT 11, ¶ 43, 203 P.3d 962; see

also Mich. Comp. Laws Ann. § 418.131(1).

¶ 35. Other courts have declined to adopt the substantial-certainty standard and chosen

to remain with the stricter specific-intent test, for reasons including unwillingness to depart from

precedent, the language of the particular statute involved, or concern that the broader standard will

lead to abuse. Fenner v. Mun. of Anchorage, 53 P.3d 573, 576-77 (Alaska 2002); Guerrero v. OK

Foods, Inc., 230 S.W.3d 296, 298 (Ark. Ct. App. 2006); Schwindt v. Hershey Foods Corp., 81

P.3d 1144, 1147 (Colo. App. 2003); Limanowski v. Ashland Oil Co., 655 N.E.2d 1049, 1053 (Ill.

App. Ct. 1995); Thornton v. W.E. Blain & Sons, Inc., 878 So. 2d 1082, 1086 (Miss. Ct. App.

2004); Valencia v. Freeland & Lemm Const. Co., 108 S.W.3d 239, 243 (Tenn. 2003); Birklid v.

Boeing Co., 904 P.2d 278, 285 (Wash. 1995).

¶ 36. Given these varied approaches, and this Court’s own established restraint on the

subject, I would not resolve this question today. Not only do we not need to, but plaintiff does not

10
These decisions do not necessarily equate the applicability of the worker’s compensation
statute and the scope of the exclusivity provision in the way Kittell did. For example, in Suarez,
the Connecticut Supreme Court rejected the argument that a claimant cannot pursue both worker’s
compensation benefits and a civil tort remedy for an injury intentionally inflicted by the employer.
639 A.2d at 514-16. The court acknowledged that benefits would be subject to set-off to avoid
double recovery, but explained that a rule requiring an injured worker to elect remedies at the
outset, and prohibiting a worker intentionally injured by the employer from collecting workers’
compensation benefits, would be a remedy in name only, leaving intentionally harmful conduct by
employers unpenalized. Id. at 514.
20
actually ask us to. He argues that even accepting that this Court did not adopt the substantial

certainty test in Stamp Tech, there is sufficient evidence here for a reasonable factfinder to infer

an intent to injure by the employer. Accordingly, we don’t have before us comprehensive briefing

to inform an analysis of the proper definition of “intent.” In my view, we should reserve a decision

on the precise scope of the exception to the exclusivity provision for a case where the issue is more

squarely presented.

¶ 37. For these reasons, I concur in the mandate only with respect to the claim against

defendant Connor Contracting. I am authorized to state that Chief Justice Reiber joins this

concurrence.

Associate Justice

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