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Employer's discipline of foreman halts intentional injury claim
Under the intentional tort exception to the exclusive remedy provision, an employee must show that the employer knew, to a substantial certainty, that his injury would occur.
Case name: Ulrick v. Kunz, et al., No. 09-3327 (6th Cir. 10/22/09, unpublished). Ruling: The 6th U.S. Circuit Court of Appeals affirmed summary judgment for a construction company in an intentional tort lawsuit. The worker did not show that the company was substantially certain a coworker would injure him.
Summary: A carpenter and a foreman were involved in a fight at a jobsite. The foreman struck the carpenter in the leg with a wrecking bar. The carpenter sued the foreman and the construction company for intentional harm, alleging the company was substantially certain that the foreman would injure someone. The foreman had been involved in three confrontations with other workers. The construction company gave him an ultimatum after the second physical confrontation, forbidding him from touching any employee in "any form in an aggressive or unwelcome manner" and instructing him to fire rather than argue with poor workers. On the third occasion, the foreman followed the employer's directions, firing a confrontational worker after a verbal altercation. The court concluded that the carpenter failed to show the construction company acted "with deliberate intent to cause an employee to suffer an injury." The court rejected the carpenter's contention that the company knew the foreman "could" have caused another injury based on his past behavior, and pointed out the employer took measures to stop the violence. The court determined that the worker did not demonstrate that the employer was substantially certain the foreman would harm another worker in the manner that the injury occurred. The 6th Circuit pointed out that the substantial certainty test was originally intended to apply to claims for injuries caused by physical conditions in the workplace, not employee-caused injuries. The court noted that when dealing with employee-caused injuries, it was important to take into account the "additional risks and dangers a human can pose because humans possess volition and potential instability in a way no other workplace hazard can." The court noted that some courts have addressed the problem of human-caused injuries by considering what measures the employer took to ensure that an employee would not cause injury in the future. Read more at the WORKERSCOMP ForumTM homepage. December 14, 2009 Copyright 2009© LRP Publications |
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