Opinion
No. 36473-5-II.
April 29, 2008.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-2-00704-4, Leonard W. Costello, J., entered May 31, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
Deborah M. McLean appeals the trial court's dismissal under CR 12(b)(6) of her negligence claim against her employer, Skookum Educational Programs, a Washington corporation. We affirm.
A party may move for judgment on the pleadings asserting by said motion the defense of "failure to state a claim upon which relief can be granted." See CR 12(c) and CR 12(b)(6).
Facts
On May 28, 2003, McLean was injured at a job site in Bremerton, Washington when she slipped and fell on a ramp leading from a portable toilet provided by her employer, Skookum Educational Programs. Skookum, a subcontractor for a foreign general contractor, was hired to clear brush and trash at Jackson Park, a housing complex for United States Navy families. The general contractor rented the toilet from Skookum for the convenience of the workers on the site. The portable toilet was delivered to the site on a truck and remained on the truck bed. The ramp that led up to the truck bed was positioned at an angle of more than 20 degrees and was not equipped with cleats or other non-slip surface. McLean received worker's compensation benefits for her injury.
On March 24, 2006, McLean filed her summons and complaint for personal injury damages alleging negligence claims against Skookum and the foreign general contractor in Kitsap County Superior Court. On May 5, 2006, the superior court granted Skookum's CR 12(b)(6) motion and dismissed Skookum as a party defendant, ruling that McLean's claim was barred by the Industrial Insurance Act. McLean now appeals that dismissal.
As noted, McLean also sued the general contractor, Foster Wheeler Environmental Corporation, a Texas corporation, and later amended her complaint to include Foster's successor through novation to the Navy clean-up contract, Tetra Tech EC, Inc., a Delaware corporation. The superior court granted Foster's summary judgment motion because Foster was not a proper party to McLean's lawsuit as a result of the noted novation. When McLean amended her complaint to include Tetra, Tetra removed the suit to federal court on diversity grounds. On May 31, 2007, a federal district court granted Tetra's summary judgment motion because McLean had failed to bring suit against Tetra within the applicable three-year statute of limitation period. McLean subsequently filed the present appeal on June 27, 2007. Only the dismissal of Skookum is currently at issue.
Discussion
Since its inception in 1911, the Industrial Insurance Act (IIA), Title 51 RCW, has provided Washington employers with immunity from lawsuits arising from workplace injuries. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). In exchange for this immunity, the IIA provides an exclusive workers' compensation system that affords swift and certain recovery for injured employees, regardless of fault. See Vallandigham, 154 Wn.2d at 26; see also RCW 51.04.010. The IIA also supplies a limited exception to this exclusive compensation system permitting an employee to sue an employer only when the employer intentionally injures the employee. See RCW 51.24.020. Washington courts have consistently interpreted this exception narrowly, holding that mere negligence, even gross negligence, does not rise to the level of deliberate intention. See Vallandigham, 154 Wn.2d at 27 (citing Birklid v. Boeing Co., 127 Wn.2d 853, 860-61, 904 P.2d 278 (1995)).
RCW 51.24.020 states:
If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.
Here, McLean contends that her complaint alleges a valid negligence claim against her employer, Skookum. She contends that Skookum provided a ramp that violated the safety requirements of WAC 296-155-515, and that fact takes her claim outside the exclusive remedy available under the worker's compensation system. But as noted above, the IIA and case law interpreting it provide a single exception to the IIA's exclusivity. A suit for damages is available to an employee only for an injury that resulted from an employer's deliberate intention to produce such injury. See Vallandigham, 154 Wn.2d at 27 (discussing RCW 51.24.020). Notably, McLean's complaint asserted only a cause of action for negligence. Nowhere does her complaint mention any "deliberate intention" by Skookum to cause her injury. Accordingly, the trial court correctly ruled that her negligence claim was barred by the IIA and sustainably granted Skookum's CR 12(b)(6) motion to dismiss.
WAC 296-155-515(3) provides that "[r]amps, runways and walkways shall not be inclined more than twenty degrees from horizontal and when inclined shall be cleated or otherwise treated to prevent a slipping hazard on the walking surface."
McLean alternatively argues that even if the IIA applies, the deliberate intention exception is fulfilled because Skookum violated the noted WAC provision. But Vallandigham answers this contention also. "Even failure to observe safety laws or procedures does not constitute specific intent to injure, nor does an act that had only substantial certainty of producing injury." Vallandigham, 154 Wn.2d at 27 (citing Birklid, 127 Wn.2d at 860). Restated, the "deliberate intention" exception requires that the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. See Valencia v. Reardan-Edwall Sch. Dist. No. 1, 125 Wn. App. 348, 351, 104 P.3d 734, review denied, 155 Wn.2d 1004 (2005) (citing Birklid, 127 Wn.2d at 865). Accordingly, "deliberate intention" cannot be shown by the employer's gross negligence or carelessness. Valencia, 125 Wn. App. at 351. "Simply exposing employees to unsafe conditions is not enough." Valencia, 125 Wn. App. at 351 (citations omitted). Nor can it be shown by the employer's failure to follow safety procedures or laws governing safety. Even knowledge to a substantial certainty that an act will produce an injury is not sufficient. In sum, McLean's claim was barred by the IIA. The trial court did not err in dismissing Skookum.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Van Deren, A.C.J.
Armstrong, J.