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Recovery against employers beyond workers' compensation: How to defeat the "exclusivity bar."

Recovery against employers beyond workers' compensation: How to defeat the "exclusivity bar."

Workers' Compensation

The workers' compensation system was established to provide an expeditious administrative program to provide benefits to the injured worker due to an industrial accident or occupational exposure. The benefits are to be awarded with a minimum of delay and regardless of fault. The system provides a direct remedy to the worker and limits litigation and exposure to the employer.

Recovery for the injured employee is based upon a statutory scheme enacted by the legislature, which limits the employer's liability. The injured worker is limited to a percentage of his weekly earnings for temporary disability benefits and to a statutory schedule for permanent disability benefits. Under the workers' compensation system, the injured worker is not permitted to recover against the employer for negligence, for the limitless "pain and suffering" awards or for punitive damages.

The workmen's compensation act (St. 1911, c. 751), while intended to take away from injured employees, who shall become subject to its provisions, all common law rights of action, does not affect the right of action of the parent of a minor servant, who was injured, for the injury not only gives rise to one cause of action in favor of the minor, but to another in favor of his parents, and the parent's action is in no way consequential on that of the minor, is based on loss of services during minority and expenses necessitated by the injury. The right of action of a parent of an injured minor servant is not barred by an allowance to the servant under the workmen's compensation act (St. 1911, c. 751), on the theory that the compensation is really a payment of wages to which the parent is entitled, for part 2, s 11, clearly shows that the allowance, though based on salary, is also for permanent injuries. King v. Viscoloid Co. 106 N.E. 988, 219 Mass. 420 (Mass. 1914)

The children and wife of the employee brought an action to recover against an employer for loss of the employee's consortium and society due to injuries sustained by him as a result of the employer's alleged negligence and also sought to recover for mental anguish and impairment of health resulting from observation of employee's injuries. The Superior Court, Hampden County, Cross, J., denied the employer's motion for summary judgment on claims for loss of consortium and society but granted the motion on claims for mental anguish and impaired health and reported case. After granting the children's and wife's application for direct appellate review, the Supreme Judicial Court, Liacos, J., held that: the children's claim for loss of employee's companionship and society caused by the employer's negligence was a claim on which relief could be granted; in such action in which statement of agreed facts indicated that wife and children first saw employee's injuries in hospital, it could be inferred, for purposes of withstanding motion for summary judgment, that, concerning when the shock had occurred, applicable principles of proximity were satisfied to permit maintenance of cause of action for mental anguish and impaired health; and children and wife of such employee, who had accepted workmen's compensation payments without giving notice that he wished to preserve his rights in common law, were not barred by Workmen's Compensation Act from recovering on their claims. Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E. 2d 690 (Mass. 1980) 


Children's claim for loss of father's companionship and society caused by the defendant's negligence was a claim on which relief could be granted if children could show that they were minors dependent on their father; such dependence would have to be rooted not only in economic requirements but also in filial needs for closeness, guidance, and nurture.


Legislative inaction following judicial interpretation of a statute provides only frail evidence that the legislature approves of the court's interpretation.

"Both causes were founded upon an analogy with a master's action for enticement of his servant. To prevail, the father had to show the actual loss of his child's services. W. Prosser, Torts §124 at 882 (4th ed. 1971). With time, a doctrine of constructive loss of services developed. If the child was a minor and the father had a right to his or her services, the child was presumed to be his servant. " Id. at 692,
Ferriter v. Daniel O'Connell's Sons, Inc., 413 N.E.2d 690, 381 Mass. 507 (Mass. 1980).

Employee's receipt of dependency benefits under a provision within the Workmen's Compensation Act would not bar claims of a spouse or a child for loss of the employee's consortium or society.

Over sixty years ago, Dean Pound said, "As against the world at large, a child has an interest ... in the society and affection of the parent, at least while he remains in the household. But the law has done little to secure these interests .... It will have been observed that legal securing of the interests of children falls far short of what general considerations would appear to demand." Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 185-186 (1916)." Id. at 695, 413 N.E.2D 690.

" We recognized in King v. Viscoloid Co., 219 Mass. supra at 422, 106 N.E. 988, that the employee's remedy should be exclusive, and we do not question that proposition today. "But we find in the act nothing which goes further than this for the protection of the employer." Id. In Massachusetts, employers within the compensation act have never been in a position to rely on determinate liability for derivative third-party injuries. And fault has never been purged entirely from the statutory scheme. This is the legacy of the King decision and our unusual statute, G.L. c. 152, s 24, whose language unambiguously limits the scope of the employee's waiver. Despite numerous legislative reports on workmen's compensation a revision of the participation requirement of the act, and many amendments to the section in question, that strict language remains. Few exclusive liability provisions in workmen's compensation statutes are so narrowly drawn. Id. at 699-701, 413 N.E.2D 690.

"In the construction of statutes resembling ours, King v. Viscoloid Co., supra, is the acknowledged leading case....Without a declaration of legislative intent to the contrary, we are disinclined to disturb our rule, which has weathered sixty-six years unscathed." Id.


Superseded by Statute as Stated in Lijoi v. Massachusetts Bay Transp. Authority, 28 Mass.App.Ct. 926, 548 N.E.2d 893 (Mass.App.Ct., Jan 16, 1990) (NO. 88-P-1118); Corrigan v. General Elec. Co., 406 Mass.; 478, 548 N.E.2d 1238 (Mass., Jan 18, 1990) (NO. 5045) Russell v. Boston Wyman, Inc., 410 Mass. 1005, 574 N.E.2d 379 (Mass., Jul 09, 1991) (NO. 5599)

Action by a parent, individually and as an administrator of his deceased minor son's estate, challenging the constitutionality of the Workmen's Compensation Act insofar as it relates to compensation for the death of an employee who leaves no surviving dependents. The Circuit Court, Duval County, Roger J. Waybright, J., held that the statute was constitutional, and the appeal was taken. The Supreme Court, Carlton, J., held that since the employee, by his own voluntary act, chooses to bind himself and his representative and survivors in the event of death to the provisions of the Workmen's Compensation Act, no unconstitutional discrimination exists under the circumstances if, after the death of an employee who leaves no surviving dependents, the suit cannot be brought for such death under the Survival Statute or under the Wrongful Death Acts. Mullarkey v. Florida Reed Mills, Inc., 268 So.2d 363 (Fla. 1972)

The concept of the exclusiveness of remedy embodied in workmen's compensation statute providing that the Act is the exclusive source of liability of the employer if the employee has accepted the Act is a rational mechanism for making the compensation system work in accord with the purposes of the Act since, in return for accepting vicarious liability for all work-related injuries regardless of fault, and surrendering his traditional defenses and superior resources for litigation, the employer is allowed to treat compensation as a routine cost of doing business, while employee trades his tort remedies for a system of compensation without contest, thus sparing him the cost, delay, and uncertainty of a claim in litigation. F.S.A. s 440.11. Id.

Ervin, Justice (dissenting): I believe Florida Statutes, Chapter 440, F.S.A., to be unconstitutional insofar as it eliminates for a limited class of persons all right of recovery for the wrongful death of another. The majority opinion clearly does nothing to advance the goals of either Act. It frustrates the Wrongful Death Act's attempt to provide for those to whom the decedent may be indebted while being unresponsive to the Workmen's Compensation Act's dual purposes of providing benefits for workers injured on the job and preventing employers from being exposed to double liability through multiple claims. In fact, the majority result gives the employer a windfall by permitting it to escape all liability, even for a death caused by its negligence. Surely the Workmen's Compensation Act does not intend to render totally harmless a negligent employer who is responsible for an employee's wrongful death. See Trail Builders Supply Company v. Reagan, Fla.1970, 235 So.2d 482, 485. Mullarkey v. Florida Feed Mills, Inc., 268 So. 2d 363 (Fla. 1972).

In several states, there are certain classes of people that receive special treatment under the workers' compensation act. Minors are such a group that has additional options available on occasion. A minor, in some jurisdictions, may elect to pursue a common-law action. Pappano v. Shop Rite of Pennington, Inc., 213 N.J. Super 305, 517 A.2d 178 (App. Div. 1986).

Civil action by an employee against an employer. The Second District Court, Weber County, Charles G. Cowley, J., dismissed the complaint on the ground that the employee was covered by workmen's compensation insurance at the time he was injured, and the appeal was taken. The Supreme Court, Callister, J., held that the employer's failure to furnish annually to the commission proof of financial ability to pay direct compensation did not disqualify the employer as a self-insurer to give the employee the right to maintain civil action. Lovato v. Beatrice Foods, 22 UTAH 2d 371, 453 P. 2d 692 (Utah 1969)

It should be noted that Utah's Act is compulsory and not permissive or elective. Ind. Comm. of Utah v. Daly Min. Co., 51 Utah 602, 172 P. 301 (1918). All employees who are not specifically excepted must comply with the Act. Compliance may be accomplished in one of three ways as provided in Section 35--1--46, U.C.A.1953, i.e., (1) by being insured with the State Insurance Fund, (2) by being insured with a qualified insurance carrier, or (3) by qualifying as a self-insurer.


Manifestly, it was a continuing solvency and ability to pay that the legislature had in mind as a prerequisite for exemption from the insurance requirement of the act. As practical men, the legislators knew that financial status does not remain static and that a statute that expended its force in a single examination would provide little assurance of prompt payment of compensation during future years. I am of the opinion that an employer who desires to carry its own insurance must comply with the statute and file an annual proof of financial ability to pay direct compensation before it is entitled to the benefits of the act. Id, at 695-696.

Plaintiff's allegations that the defendant "willfully and deliberately" imprisoned her in his office "without legal excuse or justification" and that the actions of the defendants were "intentionally, deliberately and maliciously committed" to cause the plaintiff to suffer great emotional and mental distress met requirements of a true intentional tort and fell outside the exclusive remedy provision of the Worker's Disability Compensation Act. M.C.L.A. s 418.131. Schutt v. Lado, 138 Mich. App. 433, 360 N.W. 2d 214 (MICH 1984)

In this case, the plaintiff has clearly alleged torts that fall outside the exclusive remedy provision. She alleges that Dr. Robert Lado" willfully and deliberately" imprisoned her in his office "without legal excuse or justification" and that the actions of the defendants were "intentionally, deliberately and maliciously committed" to cause the plaintiff to suffer great emotional and mental distress. These allegations meet the requirements of a "true" intentional tort: "the formation by the employer of a specific intention to cause an injury or death (combined with some action aimed at accomplishing such result), as opposed to mere negligence or even gross negligence." Barnes v. Double Seal Glass, supra, 129 Mich.App. 81, 341 N.W.2d 812 (T.M. Burns, P.J., concurring). The allegations are, therefore, distinguishable from those allegations of intentional torts, which, in essence, claim only that an employer was negligent in permitting another person to commit an intentional tort against the plaintiff. Such claims would properly belong within the exclusive remedy provision of the WDCA. See Burgess v. Holloway Construction Co., 123 Mich.App. 505, 332 N.W.2d 584 (1983); Genson v. Bofors-Lakeway, Inc., 122 Mich.App. 470, 332 N.W.2d 507 (1983), and McKinley v. Holiday Inn, 115 Mich.App. 160, 320 N.W.2d 329 (1982), lv. den. 417 Mich. 890 (1983). Id. at 215.

The employee brought an action against the employer to recover for injuries sustained when the employee's hand came in contact with a ten-inch table saw not equipped with a safety guard. The Circuit Court, Randolph County, George R. Triplett, J., sustained the employer's motion to dismiss, and the employee appealed. In another case, recovery was sought against another employer for another employee's death occurring when the platform, which spanned excavation at a bridge construction site, dislodged. The Circuit Court, Kanawha County, W. H. Belcher, J., granted the employer's motion to dismiss, and an appeal was taken. In a third action, recovery was sought against the coal company for the death of its employee, who was crushed by a large quantity of falling slate. The Circuit Court, Boone County, Jerry W. Cook, J., sustained the employer's motion to dismiss, and the appeal was taken. After the consolidation of the cases, the Supreme Court of Appeals, McGraw, J., held that: .....under Workmen's Compensation Act provision, the employer is subject to a common-law tort action for damages or for wrongful death where the employer commits an intentional tort or engages in willful, wanton, and reckless misconduct; the material issue of fact on the issue of whether the employee injured by saw was injured as a result of deliberate intent on the part of employer precluded summary judgment; the genuine issue of material fact whether employee, who was killed when the platform was dislodged, was killed as a result of deliberate intent on the part of employer precluded summary judgment, and complaint filed by the administratrix of the estate of coal company employee stated a claim for relief. Mandolidis v. Elkins,161 W.Va. 695, 246 S.E. 2d 907, 96 A.L.R. 3d 1035 (App. Div. W. Va. 1978). 
"Wilful, wanton, and reckless misconduct" requires a subjective realization of the risk of bodily injury created by the activity and, as such, does not constitute any form of negligence.
In the employee's action against the employer to recover for injuries sustained when the employee's hand came in contact with a ten-inch table saw not equipped with a safety guard, a genuine issue of material fact whether the employee was injured as a result of deliberate intent on the part of the employer, and, thus, the employer was not immune from suit under Workmen's Compensation Act precluded summary judgment for the employer.

Wilfulness or wantonness imports premeditation, knowledge, and consciousness that injury is likely to result from the act done or from the omission to act. Wilful, malicious, or intentional misconduct is not, properly speaking, within the meaning of the term 'negligence.' Negligence and wilfulness are mutually exclusive terms that imply radically different mental states. 'Negligence' conveys the idea of inadvertence as distinguished from premeditation or formed intention. An act into which knowledge of danger and wilfulness enter is not negligence of any degree but is wilful misconduct. In our view, when death or injury results from wilful, wanton, or reckless misconduct, such death or injury is no longer accidental in any meaningful sense of the word and must be taken as having been inflicted with the deliberate intention for the purposes of the workmen's compensation act. In light of the foregoing discussion, the phrase "deliberate intent to produce such injury or death" must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); See 2 Restatement (Second) of Torts s 500-03 (1965).

While wilful, wanton, and reckless misconduct are well-established concepts, we wish to make clear that we are using the words "wilful," "wanton," and "reckless" misconduct synonymously and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby. See Restatement (Second) of Torts s 500, Comment at 587-88 (1965).

"We adopt the Restatement Second of Torts definition of "intent." Intentional . . . "denote(s) that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts s 8A (1965). See also W. Prosser, Handbook of the Law of Torts 31-2 (4th ed. 1971).
"Proof of the subjective realization of the risk may and must generally be proved by circumstantial evidence. For example, the defendant's knowledge of the existence and contents of federal and state safety laws and regulations is competent evidence. Prior deaths or injuries as a result of the risk would certainly be relevant. Id. at 914.
As stated in Handley v. Union Carbide Corp., 804 F.2d 265 (4th Cir.(W.Va.), Oct 31, 1986) (NO. 85-2333 (L), 85-2334)
Superseded by Statute as Stated in
Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (N.C., Aug 14, 1991) (NO. 584A88)
Declined to Follow by
Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094 (D.D.C., Sep 23, 1981) (NO. CIV. 81-0699); Shearer v. Homestake Min. Co., 557 F.Supp. 549 (D.S.D., Feb 25, 1983) (NO. CIV79-5122); Called into Doubt by Statute as Stated in Ball v. Joy Mfg. Co., 755 F.Supp. 1344 (S.D.W.Va., Sep 18, 1990) (NO. CIV. A. 1:87-0268, CIV. A. 1:88-0133, CIV. A. 1:88-1691)

In action arising from alleged exposure of workers to asbestos or asbestos-containing products while in the course of their employment, workers moved for leave to file amended and supplemental complaint setting forth their claims of "intentional wrong" against former employers. The District Court, Brotman, J., held that employers of workers allegedly exposed to asbestos were shielded from liability at common law as a result of the New Jersey Workmen's Compensation Statute's provision that workmen's compensation remedy was exclusive remedy except for intentional wrong, notwithstanding workers' allegations in their proposed amendment and supplemental complaint. Copeland v. Johns-Manville Products Corporation, 492 F.Supp. 498 (DC NJ 1980)


-Motivation for profit was not an "intentional wrong."
"Employers of workers allegedly exposed to asbestos or asbestos-containing products were shielded from any liability at common law as a result of the operation of New Jersey Workmen's Compensation Statute which barred common-law action for damages against employers unless alleged conduct of employer constituted "intentional wrong," notwithstanding workers' allegations in their proposed amendment and supplemental complaint that employers had failed to remove workers from peril and intentionally withheld information from workers about dangerous conditions in which they worked and that they were motivated by their desire to foster an atmosphere of ignorance among workers to ensure uninterrupted work and profits. N.J.S.A. 34:15-8.


-Statute establishes shield for an employer
"The New Jersey workmen's compensation statute, like all workmen's compensation acts, establishes a different method for determining liability than the traditional approach followed by the courts in actions at common law. It creates a presumption, rebuttable only by an express written statement to the contrary in advance of any accident that every employment contract is governed by its article on elective compensation. N.J.S.A. 34:15-9. That article states that "compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer" according to statutory schedules for payment. N.J.S.A. 34:15-7. The quid pro quo for this statutory declaration of employer liability for all employee injuries is to be found in N.J.S.A. 34:15-8, which provides that the agreement of the parties to adhere to the article on elective compensation shall normally bar the pursuit of other remedies against the employer. It reads: Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." 492 F. Supp. 498, 500.

Employee injured by exposure to chemicals brought suit against employer/chemical company. The United States District Court for the Southern District of West Virginia, Charles H. Haden, II, Chief Judge,
Handley v. Union Carbide Corp., 620 F. Supp. 428 (1985), entered judgment notwithstanding verdict for chemical company, and stay was denied, Handley v. Union Carbide Corp., 622 F. Supp. 1065 (1985). On appeal, the Court of Appeals, Sprouse, Circuit Judge, held that:  in determining whether the chemical company acted with "deliberate intention" in causing the employee's injuries to lose its immunity from tort liability under the Workers' Compensation Act, the trial court properly separated employee's occupational duties into distinct components for which individualized safety standards and procedures could be devised and even assuming that chemical company violated procedures described in its internal safety data sheets, that finding alone was not enough to support a conclusion that any "commonly accepted" and "well-known safety standard" was violated. Handley v. Union Carbide Corporation, 804 F.2d 265 (4th Cir. 1986). 

-Violation of safety regulation, not delivered, intent
Even if a chemical company violated procedures described in its internal safety data sheets resulting in employee's exposure to chemicals, that finding alone was not enough to support a conclusion that any "commonly accepted" and "well-known safety standard" was violated and that as result chemical company lost its immunity from tort liability normally available to employers under West Virginia Workers' Compensation Act, as there was no proof that safety rules at issue extended anywhere beyond company's own facilities. W.Va.Code, 23-1-1 et seq., 23-4-2, Id.

The West Virginia Workers' Compensation Act excludes the covered employer's immunity from suit for workplace injuries inflicted on employees with "deliberate intention." [FN17] In 1978, the West Virginia Supreme Court of Appeals issued a far-reaching decision in Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907 (1978). It ruled that deliberate intention "must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct." Id. at 706, 246 S.E.2d at 914. Handley at 270.
In 1983, the West Virginia Legislature amended the compensation statute with the express intent of modifying the standard adopted in Mandolidis. The statute now states that "in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of wilful, wanton and reckless misconduct." Handley at 270.
W.Va.Code s 23-4-2(c)(1) (1985 Replacement Vol.) provides in its entirety that: It is declared that enactment of this chapter and the establishment of the workmen's [workers'] compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided, and to establish a system which compensates even though the injury or death of an employee may be caused by his own fault or the fault of a co-employee; that the immunity established in sections six and six-a [ss 23-2-6 and 23-2-6a], article two of this chapter, is an essential aspect of this workmen's [workers'] compensation system; that the intent of the legislature in providing immunity from common law suit was and is to protect those so immunized from litigation outside the workmen's [workers'] compensation system except as herein expressly provided; that, in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of wilful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter. Handley, at 270.
An employer may be held liable if it acts "with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee." W.Va.Code s 23-4-2(c)(2)(i) (1985 Replacement Vol.).
The other provision in the statute from which a jury could infer a deliberate intent to injure. W.Va.Code s 23-4-2(c)(2)(ii)(A)-(E) (1985 Replacement Vol.) This alternate section provides that an employer will be held to have acted with the requisite "deliberate intention" if the plaintiff/employee proves each of the following elements:


  • (A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
  • (B) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working conditions and the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working conditions;
  • (C) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not or of a commonly accepted and well-known safety standard within the industry or business of the such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
  • (D) That notwithstanding the existence of the facts outlined in subparagraphs (A) through (C) hereof, such employer nevertheless after that exposed an employee to such specific unsafe working condition intentionally; and (E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition. W.Va.Code s 23-4-2(c)(2)(ii)(A)-(E) (1985 Replacement Vol.). Handley, at 270.

"The plaintiffs make the final argument that Carbide sets the safety standards for the chemical industry as a whole because of its position as an industry leader. This argument is similar to one made before the trial court. We agree with the trial court that there was no evidence upon which the jury could find that the safety rules at issue here extended anywhere beyond Carbide's own facilities. Internal safety data of a single company might well be probative in establishing existing industry standards in some areas. Still, as the district court noted, the Handleys presented no evidence of Carbide's size concerning the rest of the chemical industry. There was also no evidence of Carbide's *274 internal safety rules' effects on the rest of the industry. The record is equally bare of evidence from which the jury could infer the weight Carbide's policies carried within the industry. The bald assertion that Carbide is one of the leaders in its field is not sufficient--mainly since it was not conveyed to the jury in the form of admissible evidence. Under these circumstances, we think that the introduction of evidence of Carbide's safety sheets alone was not enough to support a jury finding of an industry or business safety standard. Handley, at 273.

"Intentional tortious act" is all that is necessary to bypass the exclusivity bar. Eight current or former employees and a number of their spouses appealed from a judgment of the Court of Appeals, Hamilton County, affirming the holding of the Court of Common Pleas, Hamilton County, dismissing the action against employer and defendant employees by plaintiff employees seeking compensatory and punitive damages arising out of their exposure to fumes and otherwise noxious characteristics of certain chemicals. The Supreme Court, William B. Brown, J., held that:an employee is not precluded by section of the State Constitution or by sections of the Workers' Compensation Act from enforcing his common-law remedies against his employer for an intentional tort, and complaint stated a cause of action on the theory that employees were exposed to fumes and otherwise noxious characteristics of certain chemicals within scope of their employment. Reversed and remanded. Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E. 2d 572, 23 O.O. 3rd 504 (Ohio, Mar 3, 1982) (NO. 81-402); Certiorari Denied By 103 S.Ct. 127, 74 L. Ed. 2d (U.S. Ohio, Oct 04, 1982) (NO. 82-10). 

Neither section of State Constitution, providing that workers' compensation "shall be in lieu of all other rights to compensation," nor sections of the Act providing that "Employers * * * shall not be liable to respond in damages at common law or by statute for any injury * * * received or contracted by any employee in the course of or arising out of his employment" or that "No employee * * * shall be liable to respond in damages at common law or by statute for an injury or occupational disease, received or contracted by any other employee," preclude an employee from enforcing his common-law remedies against his employer for an intentional tort. R.C. ss 4123.01 et seq., 4123.74, 4123.741; Const.Art. 2, s 35.
"The workers' compensation system is based on the premise that an employer is protected from a suit for negligence in exchange for compliance with the Workers' Compensation Act. The Act operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability. But the protection afforded by the Act has always been for negligent acts, not intentional tortious conduct. Indeed, workers' compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional torts are covered under the Act would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act. Id. at 577.
"As was stated in Mandolidis v. Elkins Industries, Inc. (W.Va.1978), 246 S.E.2d 907, 913: The workmen's compensation system completely supplanted the common law tort system only concerning negligently caused industrial accidents, and employers and employees gained certain advantages and lost certain rights they had heretofore enjoyed. Entrepreneurs were not given the right to carry on their enterprises without any regard to the life and limb of the participants in the endeavor and free from all common law liability." Id. at 577 (Emphasis added)
Remember that the compensation scheme was specifically designed to provide less than full compensation for injured employees. ([FN12] This court stated in State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 275, 143 N.E. 574, that: " * * * (Workers' Compensation) was never intended by the most ardent advocates of * * * (it) to give full and adequate remuneration because this would remove much of the inducement of * * * (workers) to exercise care and caution on their own part." Damages such as pain and suffering and loss of services on the part of a spouse are unavailable remedies to the injured employee. Punitive damages cannot be obtained. Yet, these damages are available to individuals who have been injured by the intentional tortious conduct of third parties, and there is no legitimate reason why an employer should be able to escape from such damages simply because he committed an intentional tort against his employee. Id. at 577.
The Court reiterated, " of the avowed purposes of the Act is to promote a safe and injury-free work environment. (R.C. 4101.11 and 4101.12.) Affording an employer immunity for his intentional behavior certainly would not promote such an environment, for an employer could commit intentional acts with impunity with the knowledge that, at the very most, his workers' compensation premiums may rise slightly. Id. at 577.

"Worker and his wife sued employer under various theories for damages arising from worker's exposure to chemicals on the job. The Circuit Court, Iron County, Robert V. Payant, J., granted summary judgment for the employer, and the worker and his wife appealed. The Court of Appeals, Beauchamp v. Dow Chemical Co., 140 Mich.App. 699, 364 N.W.2d 286, affirmed in part and reversed in part. Employer appealed. The Supreme Court, Levin, J., held that: the exclusive remedy provision of the Workers' Disability Compensation Act did not preclude action by a worker who alleged that the employer committed an intentional tort against him; the employer's conduct would not be barred by exclusivity provision if employer intended act that caused injury and knew that injury was substantially certain to occur from the act; wife could maintain an action against an employer for loss of consortium, and exclusivity provision precluded common-law civil action for breach of contractual promise to provide safe working conditions. Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 427 Mich. 1, 55 U.S.L.W. 2424 (Mich. 1986)
"...The contract claim is barred by the exclusive remedy provision.... Id. at 884

In determining whether the employer's conduct, which results in injury to the worker, was "intentional," thereby allowing the worker to bring a common-law civil action against the employer notwithstanding the exclusivity provision of the Workers' Disability Compensation Act, the test is whether employer intended act that caused injury and knew that injury was substantially certain to occur from the act; declining to follow Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 472 N.E.2d 1046; Griffin v. George's Inc., 267 Ark. 91, 589 S.W.2d 24; Serna v. Statewide Contractors, 6 Ariz.App. 12, 429 P.2d 504. M.C.L.A. ss 418.101 et seq., 418.131.

"The origin and evolution of the workers' compensation act indicates that the legislation, including the exclusive remedy provision, was designed to provide an alternative compensation system respecting accidental and not intentional injuries....In 1911, the Legislature created a "commission of inquiry to make the necessary investigation, and to prepare and submit a report ... setting forth a comprehensive plan and recommending legislative action providing compensation for accidental injuries or death of workmen arising out of and in the course of employment...." The commission's "creation resulted from a wide dissatisfaction with the present system of employers' liability for negligence is to employees [sic]." At the end of the nineteenth century, "the industrial accident rate had reached alarming proportions." As plants grew larger and more dangerous, injuries became more frequent, and proof that injury was due to the employer's fault without the contributory fault of the employee was more difficult. An increasing number of injuries were left uncompensated. Dean Prosser wrote that seventy and ninety-four percent of the injuries were uncompensated. A national commission found that workers recovered for fifteen percent of their injuries even though seventy percent were caused by employer negligence or workplace conditions. Id. at 884-5.
"Including intentional torts within the exclusivity provision would mean the Legislature intended to limit substantially an employee's recovery for intentional injury inflicted by the employer. It would mean that the Legislature intended to limit the employer's liability and allow "an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers." Intentional misconduct would seem to be the type of behavior the Legislature would most want to deter and punish. Including intentional torts within the exclusivity provision would, in that sense, be counterproductive....Accidents are an inevitable part of industrial production, but intentional torts by employers are not. In certain instances, there would be no remedy under the...analysis for employees who were the victims of intentional torts. An employer, for example, who intentionally disfigured an employee without affecting the employee's ability to work would not be subject to liability under the workers' compensation act or, under...[the] analysis, subject to civil suit. Id. at 889.

Shearer v. Homestake Mining Co., 557 F.Supp. 549, 553 (D.S.D.1983), aff'd, Shearer v. Homestake Mining Co., 727 F.2d 707 (CA 8, 1984); Petramalo, "Employer total liability," 1986 ABA National Institute on Workers' Compensation, p 167 ("[i]n most states, common-law suits alleging that the employer has 'intentionally' inflicted an injury or illness upon plaintiff employees will not be barred by the exclusivity principle"). Herrold, n 8 supra at 138 ("[a] majority of courts have held that an employer who deliberately harms his employee is not shielded from liability by the exclusivity of the particular jurisdiction's workers' compensation remedy").

See, e.g., N.J.Stat.Ann., s 34:15-8 (New Jersey Workmen's Compensation Act); South Dakota Codified Laws Ann., s 62-3-2; Ky.Rev.Stat., P 342.015; Louisiana Rev.Stat.Ann., s 23:1032; Oregon Rev.Stat., s 656.156; Wash.Rev.Code, s 51.24.020; W.Va.Code, s 23-4-2; Arizona Rev.Stat., s 23-1022; Lavin v. Goldberg Bldg. Material Corp, 274 A.D. 690, 693, 87 N.Y.S.2d 90 (1949), app. den. 275 A.D. 865, 89 N.Y.S.2d 523 (1949).

"...the courts have found that intentional tort actions can be brought even though there is an exclusivity provision and there is no statutory language explicitly allowing civil actions for intentional torts. In re Johns-Manville, n. 39 supra; Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985); Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 614-615, 433 N.E.2d 572 (1982); Heskett v. Fisher Laundry & Cleaners, 217 Ark. 350, 230 S.W.2d 28 (1950); Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985); Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930); Austin v. Johns-Manville Sales Corp, 508 F.Supp. 313, 316 (E.D.Me.1981) (interpreting Maine workers' compensation law). Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). Id. at 889

"There are some states that hold that common-law suits are precluded by the exclusivity provisions. See, e.g., DeArman v. Ingalls Iron Works Co. Inc., 258 Ala. 205, 61 So.2d 764 (1952); Eason v. Frontier Air Lines, Inc., 636 F.2d 293 (CA 10, 1981); Nutt v. E.I. duPont deNemours, 441 A.2d 226 (Del.1982); Nutt v. A.C. & S., Inc., 466 A.2d 18 (Del.1983); Wilkinson v. Achber, 101 N.H. 7, 131 A.2d 51 (1957); Parker v. Energy Development Corp., 691 P.2d 981 (Wyo.1984). Id. at 890.

That while the workers' compensation law barred the employee's action at law for his initial injury, the employee's allegations that the employer fraudulently concealed from him and from doctors retained to treat him, as well as from the state, that he was suffering from a disease caused by ingestion of asbestos, thereby preventing him from receiving treatment for the disease and inducing him to continue to work under hazardous conditions, were sufficient to state a cause of action for aggravation of the disease, as distinct from the hazards of the employment, which caused him to contract the disease, and the employee was entitled to bring an action at law against his employer for such aggravation. Johns-Manville Products Corporation v. Contra Costa Superior Court, 165 Cal.Rptr. 858, 612 P.2d 948 (1980).

A defendant is engaged in mining, milling, manufacturing, and packaging asbestos. Plaintiff worked in its Pittsburg, California, plant for 29 years beginning in February 1946, and he was continuously exposed to asbestos during that period. As a result of the exposure, he developed pneumoconiosis, lung cancer, or other asbestos-related illnesses. The defendant corporation has known since 1924 that long exposure to asbestos or the ingestion of that substance is dangerous to health, yet it concealed this knowledge from the plaintiff and advised him that it was safe to work near asbestos. It failed to provide him with adequate protective devices and did not operate the plant by state and federal regulations governing dust levels. Id. at 950. See also Lilienfeld, D., "The Silence: The Asbestos Industry and Early Occupational Cancer Research--A Case Study," Am J Public Health 1991; 81:791-900.


The doctors retained by the defendant to examine the plaintiff were unqualified, and the defendant did not provide them with adequate information regarding the risk of asbestos exposure. It failed to advise these doctors of the development of pulmonary disease in the plaintiff or of the fact that the disease was the result of the working conditions at the plant, although it knew that his illness was caused by exposure to asbestos. Id. at 951.


Defendant willfully failed to file a First Report of Occupational Injury or Illness with the State of California regarding the plaintiff's injury, as required by law. Had this been done, and if the danger from asbestos had been revealed, the plaintiff would have been protected. Each of these acts and omissions was done falsely and fraudulently by the defendant, intending to induce the plaintiff to continue working in a dangerous environment. Id. at 950-951.


Plaintiff was ignorant of the risks involved and would not have continued to work in such an environment if he had known the facts. Id. at 951.

Employees brought civil suits against the employer and company physicians, asserting that defendants, with knowledge of adverse health consequences of asbestos use and exposure and as part of the concerted plan for profit, deliberately exposed employees to a dangerous work environment on certification to the Appellate Division, the Supreme Court, Clifford, J., held that: (1) employees' initial resulting occupational diseases were not actionable in an additional civil suit, but (2) allegations that defendants fraudulently concealed knowledge of already contracted diseases stated distinct, actionable, civil claim. Millison v. E.I. du Pont de Nemours & Company, 101 N.J. 161, 54 U.S.L.W. 2326 (NJ 1985).

Conduct of employer, but also the context in which such conduct takes place: "may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act?" Id., at 514. "Those corporations that would use their medical departments as a tool to prevent employees from learning of known injuries that are substantially certain to be aggravated by lack of disclosure must be deterred from embarking on such a course of conduct." Id., at 517.
"Intentional wrong" exception of exclusive remedy provision of Workers' Compensation Act, N.J.S.A. 34:15-8, applies to employers as well as co-employees. Where the employer is a corporation, actions taken by certain corporate officers and supervisors are actions taken by a corporate employer.
Each year the du Pont doctors would give employees complete physical examinations, including chest x-rays, pulmonary function tests, electrocardiograms, urine analyses, and blood tests. Defendants fraudulently concealed plaintiffs' asbestos-related diseases and sent them back into the workplace, where their initial infirmities were aggravated by additional exposure to asbestos. Id. at 509.


"Our view is that in light of the Compensation Act's purpose of assisting disabled workers, the best approach is to allow a plaintiff to process his workers' compensation claim without forfeiting the opportunity to establish that he was injured as a result of conduct that amounted to an intentional wrong, entitling him to seek damages beyond those available in workers' compensation. If, however, a plaintiff should prevail in his suit based on intentional wrong, he would not be entitled to keep the entire amount of his compensation award and his civil suit remedy. That double recovery is to be avoided is evident from so much of the Compensation Act as demands that compensation claimants who have recovered from third parties be required to reimburse their employer or its insurance carrier for compensation payments already made. N.J.S.A. 34:15-40. Id., at 519.

Evidence that the superintendent of a store made false statements accusing employees of various thefts in malice and without good faith supported verdicts for the employees and that $2,000 compensatory damages and $500 punitive damages to each for physical illness, humiliation, and loss of employment were not excessive. Braman v. Walthall, 215 Ark. 582, 225 S.W. 342 (Ark. 1949).


"She gave the following testimony as abstracted in appellees' brief: 'The first thing he asked me was if I had a husband, and I told him no. Then he started in. He kept me in the store until six o'clock--thirty minutes after closing time. He told me to be back at 9:00 in the morning. I asked him if he was accusing me of taking anything, and he just told me to come back in the morning to get my money. I couldn't get it then--it was all closed. I got in the store at quarter to nine Friday, September 26, and in about ten minutes from then, I was in his office back there, and he began on me. He had these tickets on his desk, and I did not have anything to do with the tickets. All I did was stamp tickets. I did not have a sales book. He said, 'You took this money and you made a duplicate ticket, leaving off the two dates and putting on these other two. Therefore you stole $11.29, didn't you?' I said, 'No.' He said, 'Myrna, don't lie to me.' I said, 'I am telling you the truth', and he called me everything in the world he could. He shook his finger at me and hit me so many times on the end of my nose until there is a mark there. He said I had taken material and I had stolen money from the store to the extent of $5,000. I kept telling him no. I was crying. I tried to leave. He grabbed me by the arm and pushed me down and said I wasn't leaving. I wanted a drink. I was sick at my stomach. He ordered me not to leave the room--I was to sit there until he finished with me. My arm was black and blue. He would get right up and say, 'You little lying thief, you are going to tell me or you are going to pay the price.' Id., at 344.

Personal injury action brought by an employee against the employer. On motion of the employer for judgment on the pleadings, the District Court, Hemphill, J., held that the sole and exclusive remedy of the plaintiff was not before the South Carolina Industrial Commission by virtue of the fact that incidents referred to in the complaint, and out of which accident arose, took place while she was at work on premises of, and as an employee of, the defendant, where circumstances of injury in question, including the fact that plaintiff was not disabled and lost no time as a result of the injury, showed that the injury was not compensable under the South Carolina Workmen's Compensation Act. Ritter v. Allied Chemical Corporation, 295 F. Supp. 1360 (D.S.C. 1968) "In her deposition she states that the results were a scratch on the hand and certain soreness. She does not claim any of the disabilities, or the contemplated disfigurement contemplated and treated by South Carolina as compensable under the provisions of Section 72-153, of the South Carolina Code. Id., at 1361.

Action by an employee against his employer's workmen's compensation insurer and private investigators employed by the insurer for negligently exhibiting at the workmen's compensation hearing motion pictures taken of an employee while she was under surveillance, which showing allegedly caused the physical and mental breakdown, and for assault, conspiracy and intentional infliction of emotional distress and for punitive damages. The Supreme Court, Sullivan, J., held, inter alia, that the workmen's compensation insurer did not become a 'person other than the employer,' and thus subject to suit at law, by allegedly negligently failing to control its investigators in carrying out a nonmedical investigation of the claim. Unruh v. Truck Insurance Exchange, 7 Cal. 3d 616, 102 Cal. Rptr. 815 (1972). "A deceitful investigation, in place of an honest one, frustrates the laudable objectives of the workmen's compensation law. Permitting the employee to maintain an action at law for the insurer's intentional torts will subserve these objectives but, at the same time, will not discourage the insurer from fulfilling its proper role in the compensation scheme.

Unruh v. Truck Insurance Exchange, 498 P. 2d 1063 - Cal: Supreme Court 1972102 Cal. Rptr, 815, 825, 498 P.2d 1063, 1073.

The Alaska Supreme Court, Rabinowitz, C. J., held that the statute requiring reimbursement of total amounts paid by compensation carrier when damages are recovered by an employee from a third party does not allow for pro-rata deduction of attorney fees, that intentional misconduct by an employer or its compensation carrier will destroy its immunity from suit for the delay in making compensation payments, and that the carrier should have been awarded attorney fees to the extent that it prevailed on the reimbursement issue. Stafford v. Westchester Fire Insurance Company of New York Inc., 526 P.2d 37 (1974). If an employer or its workmen's compensation carrier engages in tortious conduct which deprives a workman of benefits, the workman is entitled to receive and which goes beyond the bounds of untimely payments, immunity from suit provided by the Workmen's Compensation Act is lost. AS 23.30.155. Disapproved of by Cooper v. Argonaut Ins. Companies, 556 P.2d 525 (Alaska, Nov 08, 1976), Overruling Recognized by Van Biene v. ERA Helicopters, Inc., 779 P.2d 315 (Alaska, Aug 18, 1989) (NO. S-2571, 3485).

An employee brought an action under the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act against the employer and three of its supervisory personnel because of alleged sexual harassment and related tort and labor claims against the employer, supervisory personnel, and certain co-workers. The United States District Court for the Eastern District of Wisconsin, Myron L. Gordon, .,
Zabkowicz v. West Bend Co., 601 F. Supp. 139 (1985), dismissed tort claims against the employer and supervisory personnel, entered judgment against the employer on the sexual harassment claim, dismissed claims against co-workers for lack of subject-matter jurisdiction, and denied attorney fees to the employee, and the employee appealed. The Court of Appeals, Harlington Wood, Jr., Circuit Judge, held that: tort claims against the employer and supervisory personnel were barred by Wisconsin Worker's Compensation Act; the district court did not abuse discretion in dismissing pendent state claims against co-workers, and  district court's total denial of attorney fees was an abuse of discretion. Zabkowicz v. The West Bend Company, 789 F. 2d 540 (7th Cir. 1985), 54 U.S.L.W. 2599, 40 Fair Empl. Prac. Cas. (BNA) 1171, 40 Empl. Prac. Dec. P 36,089, 4 Fed.R.Serv.3d 1229. Under Wisconsin law, the emotional stress caused by sexual harassment was compensable under Worker's Compensation Act, and therefore, tort claims against the employer and its supervisory personnel were barred by the exclusivity provision of the Act, notwithstanding the foreseeability of harassment. W.S.A. 102.01(2)(c), 102.03(1, 2). 

Where an employee was injured by a press brake, a product liability claim could be brought against the employer. The employer was provided with a complete operations manual, three safety signs to be posted on the machine, and the American National Standards Institute ("ANSI") regulations from the product's manufacturer. All items emphasized safety. The product's manufacturer also sent a service representative to the employer's premises and noted that the safety tags were installed. "So many of these costly suits against equipment manufacturers could be forestalled if either the Workers' Compensation remedy were more realistic, the tort law compensation were more circumscribed, or if the common law suit exception were expanded to permit indemnification claims against an employer by a third party which is found liable for less than a fixed percentage of liability. Seeley v. CINCINNATI SHAPER COMPANY, LTD., 617 A. 2d 1218 - NJ: Supreme Court 1992.

Presented at: National Workers’ Compensation Convention, Hyannis MA – July 22, 1992. 


Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 have represented injured workers and their families who have suffered occupational accidents and illnesses.

Recommended Citation: Gelman, Jon L.,  Recovery against employers beyond workers' compensation: How to defeat the "exclusivity bar.", (1992),

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