No. 84-444
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
RAI'JDAL J. NOONAN,
Plaintiff and Appellant,
SPRING CREEK FOREST PRODUCTS, IPJC. ,
a Montana corporation, and ROBERT
ULRICH,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moulton, Bellingham, Longo & Mather; Brent R. Cromley
argued, Billings, Montana
For Respondents:
Crowley, Haughey, Hanson, Toole & Dietrich; L. Randall
Bishop argued, Billings, Montana
Submitted: March 28, 1985
Decided: 24, 1985
Filed: MAY L 3 1985
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Randal Noonan appeals an order of the Yellowstone
County District Court granting the motion for summary judg-
ment of Spring Creek Forest Products, Inc. The trial court's
order effectively dismissed the employee's civil action for
damages based on intentional tort. We affirm.
Noonan was employed by Spring Creek as a wood planer
operator in July of 1 9 8 0 . Spring Creek is a sawmill located
near Judith Gap. This was Noonan's first full-time job as
the nineteen-year-old had just graduated from high school.
The employee's job required him to feed rough-cut
lumber through a planer to be milled to the proper dimen-
sions. On December 2 2 , 1980, a piece of wood became stuck in
the planer. Noonan reached in to clear the chip of wood and
his left hand was drawn into the machine resulting in serious
injury.
Noonan submitted a claim for workers' compensation
benefits which was granted. Appellant has received these
benefits up through the present lawsuit.
This action was filed on April 22, 1 9 8 3 . Noonan al-
leged that the injury was the result of the employer's inten-
tional action. Appellant sets forth the following facts in
an affidavit and deposition.
1. The planer on which Randy Noonan was working was
broken for approximately a month.
2. The employer had. been requested to repair the
planer but had failed to do so.
3. Randy Noonan had been told by his employer not to
turn off the planer because it would slow down production.
4. Randy's foreman would sometimes come to work
intoxicated and was intoxicated on the day of the accident.
5. The owners of Spring Creek knew that Randy's fore-
man worked while intoxicated.
6. No guard was on the planer.
7. The "on" and "off" switches were mislabeled by
Spring Creek.
8. Randy was required to run the planer regardless of
safety.
9. Spring Creek knew of prior accidents on the planer
but concealed the fact of such accidents from Randy Noonan.
10. Spring Creek knew that it was in violation of OSHA
Safety F-egulations.
11. Spring Creek knew that plaintiff Randy Noonan would
be required to retrieve pieces of wood from the planer.
12. If the planer had not been broken, it would not
have been necessary for Randy to retrieve wood from the
planer and lose his hand.
13. Spring Creek's policy was to run equipment, regard-
less of safety, until it broke, at which time employees would
be laid off without pay.
The trial court granted the employer's motion for
summary judgment upon the grounds that there were no genuine
issues of material fact on whether the harm suffered was
maliciously and specifically directed at the plaintiff out of
which such specific intentional harm the plaintiff received
injuries as a proximate result. This language of the court's
order is from one of our recent decisions on intentional
torts in the workplace. Great Western Sugar Co. v. District
Court (1980), 188 Mont. 1, 610 P.2d 717.
A second basis for granting defendant's summary
judgment was that Noonan had made an election of remedies by
accepting workers' compensation benefits.
Noonan has raised the following issues:
I. Does a material issue of fact exist regarding the
employer's intent to injure the employee so as to preclude
summary judgment?
2. Has the employee effectively elected coverage under
the Workers' Compensation Act, thereby precluding recovery of
damages in a civil lawsuit?
3. Is the employee entitled to summary judgment on the
issue of the employer's liability for the injury?
This appeal presents a question concerning the inten-
tional tort exception to the exclusivity provision of the
Workers' Compensation Act. Section 39-71-411, MCA. Appel-
lant is essentially asking this Court to broaden Montana's
intentional tort exception and recognize what is presently
the minority view in the United States.
Concerning the issue of the empl-oyer's intent, Noonan
alleges that the thirteen facts set forth above show an
intent to injure. In his view, they show, at the least, a
material issue of fact on the question of intent; therefore,
summary judgment was improper.
Noonan relies on case law from a number of jurisdic-
tions that have recognized an intentional tort in similar
circumstances. The leading cases have arisen in Ohio and
West Virginia. See Jones v. VIP Development Co. (Ohio 1984),
472 N.E. 2d 1046; Blankenship v. Cincinnati Milacron Chemi-
cals, Inc. (Ohio 1982), 433 N.E.2d 572; Mandolidis v. Elkins
Industries, Inc. (W. Va. 1978), 246 S.E.2d 907. What these
cases have established is that a worker may pursue a cause of
action alleging intentional tort without showing the employer
had a specific intent to injure. Ohio and other jurisdic-
tions allow these intentional tort actions to proceed where
the employer knows or believes that harm is a "substantially
certain" consequence of the unsafe workplace. See for exam-
ple, Shearer v. Homestake Min. Co. (S.D. 1983), 5 5 7 F - S ~ P P .
549. The existence of this knowledge or intent may be in-
ferred from the employer's conduct and surrounding
circumstances.
Montana has chartered a course quite different from
those states on the cutting edge of the minority trend. As
recently as 1980 we held:
' .. the 'intentional harm' which
removes an employer from the protection
of the exclusivity clause of the Work-
ers' Compensation Act is such harm as it
maliciously and specifically d-irected at
an employee, or class of employee out of
which such specific intentional harm the
employee receives injuries as a proxi-
mate result. Any incident involving a
lesser degree of intent or general
degree of negligence not pointed specif-
ically and directly at the injured
employee is barred by the exclusivity
clause as a basis for recovery against
the employer outside the Workers1 Com-
pensation Act." Great Western Sugar Co.
v. District Court, 610 P.2d at 720.
Great Western is arguabl-y distinguishable from the
present case in that the injured worker there failed to
allege intentional conduct on the part of his employer.
Noonan, on the other hand, has clearly made the necessa.ry
allegations in his complaint, that if supported by the facts,
would remove the cause of action from the exclusivity provi-
sion of the Workers1 Compensation Act.
We have reviewed each of the plaintiff's alleged facts
set forth above and fail to discern how any of the specific
facts could be interpreted to mean harm was specifically
directed at Noonan. The facts do establish that the owners
of Spring Creek operated a hazardous and dangerous workplace.
The number of injuries that occurred among a relatively small
number of workers provides ample support for this observa-
tion. However, to translate this situation into an inference
of tortious intent on behalf of the employer would require a
standard of law that this Court has thus far refused to
adopt.
Where an employee's allegations go no further than to
charge an employer with knowledge of a hazardous machine, the
complaint does not state a cause outside the purview of our
exclusive remedy statute. In so holding we are in accord
with several jurisdictions that have reached this question.
Fryman v. Electric Steam Radiator Corporation (Ky. 1955), 277
S.W.2d 25 (all-egations that metal press was defective and
dangerous and that employer was notified of unsafe condition
of machine by prior operators were not sufficient to state
cause of action on theory of employer's deliberate intent to
injure employee); Duk Hwan Chung v. Fred Meyer, Inc. (Or.
1976), 556 P.2d 683 (employer's removal of safety switch on
pie-cutting machine not sufficient to establish deliberate
intent to injure employee) ; Jenkins v. Carman Mfg. Co. (Or.
1916), 155 P. 703 (employer's knowledge of broken condition
of a roller on a lumber conveyor, failure to repair it, and
direction to employee to work in its vicinity did not consti-
tute a deliberate intent to produce injury); Higley v. Weyer-
haeuser Company (Wash.App. 1975), 534 P. 2d 596 (plaintiff's
affidavit that eye injury was caused by inadequate plexiglas
shielding in sa.wrnill and owner's knowledge of flying cutter
heads was not sufficient to establish deliberate intention).
The deposition, affidavits and pleadings before the
District Court did not raise a genuine issue of material fact
on the question of whether Spring Creek intentionally injured
Randal Noonan. The loh7er court was solely confronted with a
question of law. As our discussion has indicated, the court
correctly construed the intentional harm exception to the
exclusivity provision of the Workers' Compensation Act.
The summary judgment of the District Court is affirmed.
By the nature of our decision the appellant's additional
issues need not be reached.
--7
We concur:
Justices
Mr. Justice Frank B. Morrison, Jr. concurs as follows:
I concur in the result but wish to add these comments.
Justice Hunt has done an able job, in his dissent, of
demonstrating the similarity between "intent" and "willful
conduct". There is sufficient evidence in this record to
allow a factual determination if we apply a "willful"
standard. The conscious disregard of others is the type of
conduct that rises to the level of willfulness and were we to
adopt such a standard for Workerst Compensation purposes
this case should be permitted to go to a jury for resolution
of the liability and damage questions.
I believe the legislature intended Workerst Compensation
to be the exclusive remedy except in those situations where
the defendant's conduct arose from specific intent rather
than willfulness. In other words, an assault would allow a
personal injury action. Gross negligence, such as we have
here, would not.
Were we to open the door for personal injury actions
where the defendant's conduct rises to a level of gross
negligence or willfulness, I can foresee persona1 injury
actions in many Workers' Compensation cases. Although there
may be a basis in sound public policy for allowing this, I do
not believe that is what
Mr. Justice John C. Sheehy, dissenting:
I dissent. On April 22, 1983, Randal J. Noonan filed a
complaint against Spring Creek Forest Products, Inc. and
Robert Ulrich, alleging that his employer Spring Creek, and
his foreman, Ulrich, had intentionally caused his injury in
the workplace. Moonan demanded a jury trial. Although his
right of trial by jury is secured to him by the Constitution
and should remain inviolate, Article 11, Section 26, Montana
Constitution, 1972, the effect of the decision of the
District Court and of the majority in this case is to deprive
Noonan of his right to a jury trial where he has presented a
genuine issue as to a material fact.
Noonan was injured on December 22, 1980. At 7 o'clock
in the morning he had gone to work and at 7: 15 the injury
occurred. He was "running 1-umber" at a planer, when a piece
of wood became caught between two rollers. He went down to
reach in and pull it out. The two rollers to his left were
broke and scraping, and he had reported the broken condition
of the rollers about a month prior but they were never fixed.
When he put his hand in there, he was caught in the rollers
and pulled in. The skin of his left arm was pulled off from
his wrist to his elbow, he lost three fingers and a thumb,
had a toe transplantation, all necessitating a severe and
painful recovery process.
The buttons controlling the start and stop of the planer
were reversed, "they weren't hooked up right." Noonan
reported that when something was wrong with the machine, "he
ran it until it broke; you don't stop and fix."
Noonan was not the first to be injured at the planer.
On November 19, 1979, Neil R. Miller received a chipped bone
in his right hand when he was removing a piece of wood from
the planer and the roller caught his glove pulling his hand
and arm between the rollers. Randal Noonan had earlier
suffered a lacerated finger when he was pulling on a rope and
slipped and struck a pulley on the planer. Robert Ulrich on
August 12, 1980, suffered a smashed finger when he tried to
remove a piece of wood which had been caught in the planer.
Robert Ulrich also received a foreign body in an eye on
September 18, 1980, when he was checking on the operation of
the planer and a wood chip flew into his eye. Randal
Noonan's accident happened on December 22, 1980.
In Great Western Sugar Company v. District Court (1980),
188 Mont. 1, 7, 610 P . 2 d 717, 720, this Court set out the
test for "intentional harm" that removes an employer from the
protection of the exclusivity clause of the Workers'
Compensation Act, Section 39-71.-411. If the harm is
maliciously and specifically directed at a class of employee,
and if out of such specific intentional harm an employee is
injured as a proximate result, the test is met.
It should be axiomatic that the proof of malicious and
specifically directed harm can be inferred from the facts and
circumstances surrounding the occurrence. If that be not
true, the only possible way for an employee to recover for an
intentionally-caused injury from an employer would be the
direct admission of the employer that he did in fact so
willfully intend. Surely the law cannot be so constricted as
to prevent a jury or other trier of fact from determining
from all the surrounding facts and circumstances whether in
fact the harm was malicious on the part of the employer and
specifically directed at a class of employee working on the
same machine. This Court has no trouble in criminal cases,
where the proof against the defendant must be beyond a
reasonable doubt, that his criminal intent may he inferred
from the facts established by witnesses and the circumstances
developed by the evidence. State v. Welling (Mont. 1982),
647 P.2d 852, 39 St.Rep. 1215; State v. Weaver (Mont. 1981),
637 P.2d 23, 38 St.Rep. 2050. We have stated that intent to
injure may be presumed from acts knowingly committed. State
v. Brown (1959), 136 Mont. 382, 351 P.2d 219. This Court has
no trouble holding that actual fraudulent intent within the
meaning of the Uniform Fraudulent Conveyance Act may be
established by circumstantial evidence. Montana National
Rank v. Michels (Mont. 1981), 631 P.2d 1260, 1263, 38 St.Rep.
334, 337. What beguiling charm of intellect allows
inferences to establish malicious intent in criminal cases,
in fraudulent conveyances cases, but not in a case where a
man's left arm is literally ripped to pieces?
I would hold in this case that a genuine issue of
material fact exists here as to whether the employer
malicious1.y and specifically directed intentional harm to the
plaintiff. A jury should decide that issue.
From a reading of the District Court's memorandum
granting summary judgment, I must conclude that the District
Court was led off-base by another beguiling argument. The
district judge principally felt that Noonan, in accepting
Workers' Compensation benefits, had made an "election" which
prevented him from suing the employer for intentional harm.
In this case the insurance company which protects Spring
Creek from tort liability is also the insurer that provides
coverage for its Workers' Compensation cases. The insurer,
through Missoula Service Company, on December 30, 1980,
invited Noonan to make an industrial accident claim by
sending him claim forms for compensation and assuring him
that "you will receive all the benefits to which you are
entitled according to law."
It is not inconsistent for Noonan to be receiving
Workers1 Compensation benefits at the same time that he is
proceeding with his intentional harm claim against his
employer. If he should lose the intentional harm claim, he
is nevertheless undoubtedly entitled to Workers' Compensation
benefits. If he should win his intentional harm claim, the
payments provided by the employer under the Workers1
Compensation Act would be an offset to any recover he might
make on the intentional harm claim. Thus, the recoveries
against the employer are merely cumulative; there is no
inconsistency as far as Noonan is concerned, because on the
same set of facts he is contending that an intentional harm
occurred.
In Massett v. Anaconda Company (Mont. 1981), 630 ~ . 2 d
736, 739, 38 St.Rep. 961, 964, this Court held that an
employee's application for a 30 year pension to his employer
did not bar his claim for disability benefits from the same
employer. In passing we said:
"As a legal doctrine, election is the exercise of a
choice of an alternate and inconsistent right or
course of action. Full knowledge of the nature of
inconsistent rights and. the necessity of choosing
between them are elements of the election. (Citing
authority) (election of remedies presupposes the
knowledge of alternatives with an opportunity for
choice) ; (Citing authority) (in order that
election of one remedial right shall bar another,
the rights must be inconsistent and the election
must be made with knowledge.) . . ."
In other cases we have held that an election of remedy
exists only when a remedy is pursued to a final conclusion.
State ex rel. Crowley v. District Court, Gallatin County
(1939), 108 Mont. 89, 88 P.2d 23. We have said that an
apparent election made und.er a mistake as to rights is not
binding as "election of remedies," Rowe v. Eggum (1938), 107
Mont. 378, 87 P.2d 189.
"Mere acceptance of some compensation benefits,
then, is not enough to constitute an election.
There must also be evidence of conscious intent to
elect a compensation remedy and to waive his other
rights." 2A. Larson 12-117 to 12-121, $ 67.35,
(1983).
In this case it is clear that the remed-ies are
cumulative, that Noonan has not procured a final disposition
of his Workers' Compensation claim, that he plainly has not
waived his right to sue for the intentional harm, and the
mere acceptance of compensa.tion does not constitute an
election. The District Court clearly erred in giving effect
to the doctrine of the election of remedies to grant summary
judgment against Noonan.
Noonan has also a.sked us on appeal to grant him summary
judgment as to the employer's liability on his intentional
harm case. It is true that in the District Court, Spring
Creek did nothing to disprove the facts and circumstances
which give rise to the inference here of intentional harm by
the employer. Still, for the same reason that I feel that
summary judgment should not have been granted against Noonan,
I feel that summary judgment should not be granted. against
Spring Creek. The issue of fact is for a trier of fact, in
this case for the jury which was demanded.
I would reverse and remand for trial upon the merits of
the plaintiff's claim of intentional tort.
Mr. Justice William E. Hunt, Sr., dissenting:
I respectfully dissent.
While I agree that the policy of Workers' Compensation
is to protect the employer from employee tort action for
injuries received during their employment, I believe there
must be a limit on what the employee must tolerate. In my
opinion in the case cited by the majority, for its present
holding that the employee can not file a suit unless he can
show that he personally was the victim of an intentional
injury, this Court paved the way for recovery of an
intentional tort. That case is Great Western Sugar Co. v.
District Court (1980), 188 Mont. 1, 7, 610 ~ . 2 d717, 720:
"We hold that the 'intentional harm' which removes
an employer from the protection of the exclusivity
clause of the Workers' Compensation Act is such
harm as it [sic] maliciously specifically
directed at an employee, or class of employee out
of h srch p e c i f i intentional - -
- w h i creceives sinjuries c- - proximate result.
harm the
employee as a
Any incident involving a lesser degree of intent or
general degree of negligence not pointed
specifically and directly at the injured employee
is barred by the exclusivity clause as a basis for
recovery against the employer outside the Workers'
Compensation Act." (Emphasis added.)
In the case at bar the cause of action was fully pled,
and in my opinion well and truly established a prima facie
case for liability. To affirm a finding that none of the
[13] specific factual allegations could be interpreted to
mean harm was "specifically directed" at Noonan, misses the
point.
The unsafe workplace existed over a protracted period of
time, within the full knowledge of the employer, amid various
complaints by employees and was in reckless disregard of
their safety. Such conduct, "specifically directs the harm
at each and every employee."
The "intentional harm" we talked about in the Great
Western Sugar - case, supra, does not, of course, refer to
Co.
any degrees of negligent conduct. Nor does it imply such
conduct must go so far as to constitute conduct similar to
that of assault. A specific intent to cause harm is not
necessary.
Rather, what we have here is the type of intentional
conduct known as reckless disregard of safety. Perhaps it is
best summed up in Restatement (Second) of Torts S 500, and
the Special Note:
"The actor's conduct is in reckless disregard of
the safety of another if he does an act or
intentionally fails to do an act which it is his
duty to the other to do, knowing or having reason
to know of facts which would lead a reasonable man
to realize, not only that his conduct creates an
unreasonable risk of physical harm to another, but
also that such risk is substantially greater than
that which is necessary to make his conduct
negligent.
"Special Note: The conduct described in this
Section is often called 'wanton or willful
misconduct' both in statutes and judicial opinions.
- - other - -phrase is sometimes used by
On the hand, this
courts to refer to conduct intFnded - cause harm
to
to another. " (~mphasis
- added. )
Comment a following the Special Note distinguishes two
types of recklessness:
"a. Types of reckless conduct. Recklessness may
consist of either of two different types of
conduct. In one the actor knows, or has reason to
know . .. of facts which create a high degree of
risk of physical harm to another, and deliberately
proceeds to act, or to fail to act, in conscious
disregard of, or indifference to, that risk. In
the other the actor has such knowledge, or reason
to know, of the facts, but does not realize or
appreciate the high degree of risk involved,
although a reasonable man in his position would do
so. An objective standard is applied to him, and
he is held to the realization of the aggravated
risk which a reasonable man in his place would
have, although he does not himself have it."
The conduct of Spring Creek comes within the former
type. Although reckless disregard of safety is not akin to
the classic type of intentional tort, it nonetheless has a
close relationship to other conduct which is intentional.
Comment f, following the Restatement, supra, provides:
"f. Intentional misconduct and recklessness
contrasted. Reckless misconduct differs from
intentional wrongdoing in a very important
particular. While an act to be reckless must be
intended by the actor, the actor does not intend to
cause the harm which results from it. It is enough
that he realizes or, from facts which he knows,
should realize that there is a strong probability
that harm may result, even though he hopes or even
expects that his conduct will prove harmless.
However, a strong probability is a different thing
from the substantial certainty without which he
cannot be said to intend the harm in which his act
results. "
Perhaps one reason the majority ruled as it did was
because in alleging an "intentional injury," Noonan was
inartful. He did not base his claim on an assault, or
battery, or any of that genre of intentional tort one readily
thinks of when "intentional" injury is alleged. Perhaps
Noonan's complaint could have been better drafted. But the
District Court could have, and in my opinion should have,
discerned that Spring Creek's reckless disregard for the
safety of its employees embodied the intent element of
Noonan's complaint.
The annotation in 96 A.L.R.3d 1064, et seq. (1979)
provides an excellent discussion of the circumstances wherein
various types of "intentional" conduct are not barred by the
exclusive remedy provision of the Workers' Compensation Acts
in several jurisdictions. One case cited therein, Mandolidis
v. Elkins Industries, Inc. and also cited in the majority
opinion, supra, should be reviewed carefully by this Court.
That case was described as being on the "cutting edge of the
minority trend." Most importantly, Mandolidis is not
inconsistent with Great Western Sugar -
Co. The majority
opinion concedes it is only "arguably distinguishable." The
distinction lies in specific intent versus reckless disregard
for safety. The similarity, however, lies in the fact that
the unsafe conditions were specifically directed at a class
of employees out of which the employee received injuries.
In my opinion, a distinction should be made between
specific intent and reckless disregard of safety. Then,
Noonan's allegation would present a question of fact,
rendering summary judgment inappropriate.
One other thing by way of clarification that I would
like to discuss is one of the issues that was raised by
Noonan according to the majority opinion. That issue is as
follows:
"Has the employee effectively elected coverage
under the Workers' Compensation Act, thereby
precluding recovery of damages in a civil lawsuit?"
This question should never have been raised but since it
has, it should be put to rest permanently. The answer to the
question is no. If an employer has coverage, the employee is
covered if he is injured at his place of employment and files
a claim. This is true whether the injury is a result of an
intentional harm or not. There is no provision in the law
that allows an injured employee to refuse benefits of the Act
in the unlikely event that he wanted to do so after he has
filed a claim. Similarly, there is no provision for
withholding benefits from an injured employee who meets the
requirements of the Act. His benefits continue as long as he
is entitled to them or he recovers in his tort action. In
that case, necessary adjustments will be made to offset any
overpayment because of Workers' Compensation benefits that
may exist.
I concur with the foregoing dissent of Mr. Justice William
E. Hunt, Sr.