I concur only with those portions of the majority entitled Facts, Exclusive Remedy, and Collateral Estoppel.
I dissent from the balance of the majority opinion. Specifically, I dissent from the holding that an employer has a common law duty to provide a working environment reasonably free from tobacco smoke. This is an issue which was not raised in the petition for review, and which was not briefed at any stage of the proceedings.
Not a single authority, whether it be cases or literature, relied upon by the majority was cited by either party. The majority has truly gone off on a frolic and detour of its own making.
The majority's holding may well be correct, but the issue is of great significance to the entire public and private work force of this state. The court and the parties deserve the benefits which would come from adherence to the rules of appellate practice.
It may well be that proper briefing, indeed any briefing, might convince us that this subject is of such great consequence it should be left to the legislative process for solution. It is common knowledge that the Legislature has long struggled with the general subject matter. It should not be resolved by an ex parte, sua sponte fiat holding.
PEARSON, C.J., and UTTER, DOLLIVER, ANDERSEN, and DURHAM, JJ., concur with BRACHTENBACH, J. *Page 827