My dissent focuses on the narrow interpretation that the majority attaches to the "intentional injury" required to escape the exclusive remedy effect of the Workers' Compensation Act, Tex.Rev.Civ.Stat.Ann. arts. 8306-8309i (Vernon 1967 Supp. 1988). The Act generally exempts employers from common law liability to their employees based on negligence, or even gross negligence, and is the employee's exclusive remedy for a work-related accidental injury. Reed Tool Co. v.Copelin, 689 S.W.2d 404, 406 (Tex. 1985). Excepting only intentional injuries, the Act's exclusive remedy (art. 8306, § 3(a)) establishes liability without proof of fault and with relative speed and certainty, providing medical and disability benefits to the injured worker, and thus theoretically "balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions." Id. at 407.
This appeal, however, calls into question the blurred distinction between "accidental" and "intentional" injuries, and a re-examination of the public policy underlying such distinction. Whether an employer's gross and outrageous indifference to the life and safety of an employee, after repeatedly being warned of the dangerous working conditions that the employee was confronting, should be treated asfunctionally equivalent to an intent to injure, is the issue on which I differ from the majority.
In the case at bar, appellant Mary Rodriguez's third-party cause of action for loss of consortium is derivative of Juan's (her husband's) action, to the extent that the tortfeasor's liability to the impaired spouse must first be established.See Bennight v. Western Auto Supply Co., 670 S.W.2d 373 *Page 704 (Tex.App. — Austin 1984, writ ref'd n.r.e.). If Mr. Rodriguez's injury was "accidental," Mrs. Rodriguez's loss of consortium is not compensable because her claim, like that of her husband's, is barred by the exclusive remedy afforded by the Workers' Compensation Act. On the contrary, if Juan's injury resulted from an intentional tort, Mary's claim for loss of consortium is not barred by the Act. Massey v. ArmcoSteel Co., 652 S.W.2d 932 (Tex. 1983).
Where the employer deliberately exposes the employee to an unreasonable risk of harm, and the employee thereafter sustains such harm, it is inequitable to hold the employer immune from common law liability on the flimsy ground that he did not intend an actual or specific injury to the employee. Considerations of public policy — particularly the prevention of an unnecessary, foreseeable, and unreasonable risk of harm to the employee — are not inherently incompatible with, and should modify, the basic theory of the Act, at least to the extent of not rewarding gross and callous indifference to the employee's life, safety, or health. It is not unreasonable to infer an employer's intent to injure from the injurious consequences that normally and foreseeably flow from such of his acts that constitute outrageous indifference to the employee's life, safety, or health, consequences that the employer knows or should know are substantially certain to result. See Bennight v. Western Auto Supply Co., 670 S.W.2d at 377; Restatement (Second) of Torts § 8A (1965).1
In the case before us, Rodriguez argues that, before he even started on his trip, the six-wheeler truck had several badly worn tires — some not only lacking treads, but also being split and cracked, and one with its inner tube visible. Nevertheless, his supervisor insisted that he drive the truck as is, despite Rodriguez's misgivings about its unsafe condition. The first tire explosion occurred near Schulenberg, and Rodriguez called one of his supervisors to bring a good spare tire from Houston. Wallace, the supervisor, told him instead to rotate one of the back tires forward as a replacement. Feeling that his employment was dependent on the completion of the trip, Rodriguez continued despite his fear of "the substantial certainty of another blowout." As feared, the second explosion occurred near Victoria, causing the truck to veer off the road and flip with Rodriguez inside, with the proximate result being his severe injuries that formed the basis of this lawsuit.
When the majority treats the employer's conscious indifference to Rodriguez's safety and life as distinct from an actual intent to injure, thus providing the employer insulation from a common law action based on gross negligence — even malicious or culpable negligence — it, of course, follows the primary authority in the field, A. Larson, who wrote that
the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. 2A, The Law of Worker's Compensation, § 68.13 (1983).
But we also signify that the herein proposed judicial inhibition against such employer's gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct, must yield to the traditionally preferred priority assigned to the employer's "continued ability to spread the risk of such losses . . . through reasonable insurance premiums." Reed ToolCo. v. Copelin, 689 S.W.2d at 407. We must choose, and I happen to think that the law should discourage, not ignore, such gross employer negligence, and that the employee's life, health, and safety are more important than even these financial considerations. The State has a more compelling interest in the protection of its workers from foreseeable *Page 705 and likely injury — or death — than in an efficient system of spreading the costs of doing business.
We need not be bound by Larson or by prior legislative or judicial inaction in this area of tort law because, as the Texas Supreme Court held in Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983), "tort law has traditionally been developed primarily through the judicial process." Courts "possess the legitimate heritage of common law innovation that develops new principles to accommodate changing values."Ivy v. Army Times Publishing Co., 428 A.2d 831, 835 (D.C.App. 1981) (Ferren, J., dissenting).
Further, Tex.R.Civ.P. 166-A requires a defendant who moves for summary judgment on an essential element of the plaintiff's case to establish that there exists no genuine issue of material fact on that element. The burden is on the movant to establish that it is entitled to judgment as a matter of law. I do not find that the defendant has met its burden. The majority is improperly affirming the summary judgment based on the non-movant, Rodriguez's, failure to establish an intent to injure as a negligence basis for the recovery of damages, but Naylor Industries has failed to establish its right to judgment as a matter of law. Whether Naylor's gross negligence, after repeated warnings, is tantamount to an intent to injure, or to knowing, with substantial certainty, than an injury will occur, is an essential question for a jury to decide.
Because I think that the knowing, conscious, deliberate exposure of an employee to an unreasonable risk of harm isfunctionally equivalent to knowing with substantial certainty that the employee will be so harmed, thus imputing to such a callous employer an intent to injure, I dissent.
The word "intent" is used throughout the Restatement of this subject to denote that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result from it.