Opinion
No. 58044-2-I.
August 27, 2007.
Tort recovery by an employee against an employer for workplace injury is allowed only in cases where it is found that an employer acts with deliberate intention when "the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."
Birklid v. Boeing Co., 127 Wn.2d 853, 865, 904 P.2d 278 (1995).
Here, a particularly vulnerable employee of a school for children with exceptional mental deficiencies was severely assaulted and permanently disabled by a student with a long track record of extremely violent assaults against school staff. The school knew of the employee's vulnerability if attacked but assigned him to work one-to-one with the student anyway. However, because the Supreme Court has determined as a matter of law that the behavior of special education students such as the student in this case is inherently unpredictable and thus preventing the requisite finding that the school had actual knowledge that future injury to its staff at the hands of the student was certain to occur, we reverse.
FACTS
Zsche Navarre was employed by the Department of Social and Health Services (the Department) as an attendant counselor manager at the Fircrest School, where children with exceptional mental deficiencies are provided instruction and treatment.
Navarre was part of an interdisciplinary team working with C.O., a 17-year-old young man who was diagnosed with mental retardation, autism, and who had a significant history of aggressive behavior. C.O. lived with his parents until he was 13, when he began to become unpredictably violent. At that age, he became a dependent of the state of Washington. According to Navarre, in C.O.'s residential placements and school settings, C.O. committed hundreds of assaults, including multiple assaults on 32 individual staff members in the Longview School District and more than 100 assaults on residential staff between early 1996 and December 1997. At least two staff members who worked with C.O. at two different residential placements were permanently disabled as a result of C.O.'s attacks.
In October 1999, C.O. was transferred to Fircrest, where he was assigned to a unit where the residents with the most challenging behaviors lived. Navarre had been working on that unit for about a year before C.O. arrived; Navarre was still suffering the effects of a head injury he had suffered in a car accident as a teen. The Department contends that after C.O. arrived, he had intermittent violent outbursts, which caused the institution to develop and reevaluate behavior plans to deal with him. In late October 1999, Fircrest reassigned certain less physically capable staff, including Navarre, away from the unit where C.O. was housed. Fircrest took a number of measures, including additional staff training, reevaluation of C.O.'s medications, and giving C.O. a computer to help him communicate better. The Department contends that as of December 1999, C.O.'s behavior had improved significantly and staff who had been reassigned were allowed to move back to C.O.'s unit; the Department contends that Navarre could have requested a transfer to another unit, but chose to return to C.O.'s unit. Navarre contends that he was forced to return.
Navarre contends that before June 2000, C.O.'s assaults on staff led to the filing of at least 18 Department of Labor and Industries claims by Fircrest employees; he committed at least 64 recorded assaults on staff between October 1999 and June 2000. Navarre contends that it was after an assault on him in October 1999 that he was reassigned to another unit because his direct supervisor did not believe Navarre could be kept safe around C.O. According to Navarre, in June 2000, a Fircrest assistant superintendent ordered that all employees in C.O.'s unit were to work in that unit only and that safety concerns did not justify reassignment to another unit. According to Navarre, he also ordered that every worker was to be assigned, in rotation, to work in a direct one-to-one staffing relationship with C.O. According to Navarre, the order was not changed even after Navarre's direct supervisor protested that Navarre was certain to be injured.
On June 19, 2000, Navarre was assigned to work one-to-one with C.O. C.O. asked Navarre to shave his head, and when Navarre tried to convince him that someone else should do it, C.O. took Navarre to the floor, severely bit his calf, and then pounded Navarre's head on the floor. A nurse nearby locked himself in a cage and did nothing to assist. Navarre is now permanently disabled. Following this assault, Fircrest changed C.O.'s staffing level to two-to-one and took a number of other steps to try to minimize his assaultive behavior.
Navarre filed an industrial insurance claim for the injuries he sustained in the assault by C.O. He was awarded medical treatment, wage replacement benefits and one year of assault pay. In addition, Navarre filed an action in tort against the Department, seeking damages under the deliberate intent exception to the Industrial Insurance Act. The Department moved for summary judgment. Relying on an opinion of the Court of Appeals, Division One, Stenger v. Stanwood School District, the trial court denied the motion. However, the trial court noted that a similar case from the Court of Appeals, Division Two, Vallandigham v. Clover Park School District, was pending before the Supreme Court. Recognizing the viability of Stenger was in question, the trial court entered the order without prejudice and continued the trial date and discovery in order to learn whether the Supreme Court would grant review of Vallandigham.
Chapter 51.24 RCW.
95 Wn. App. 802, 977 P.2d 660 (1999).
154 Wn.2d 16, 109 P.3d 805 (2005).
The Department sought discretionary review, which was denied. However, in denying the motion this court stated: "If the Supreme Court grants review [of Vallandigham] and issues an opinion clarifying the standard for willful disregard, then a renewed motion for summary judgment might be warranted."
The Supreme Court granted review of and issued an opinion in Vallandigham. The Department again moved for summary judgment based on Vallandigham. The trial court denied the motion for summary judgment. The Department then sought discretionary review. Although Navarre agrees with the trial court's decision, he supported the motion for discretionary review. The motion was granted and is now before this panel.
Vallandigham, 154 Wn.2d 16.
ANALYSIS
Ordinarily, on-the-job injuries are compensable only through worker's compensation and an injured employee may not otherwise seek recovery from an employer. But RCW 51.24.020 sets forth a narrow exception to the general rule, permitting tort recovery if an employer deliberately intended to injure its employee. Under Washington law, articulated in Birklid v. Boeing Company, an employer acts with deliberate intention when "the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."
Birklid, 127 Wn.2d 853, 865, 904 P.2d 278 (1995).
In Birklid, Boeing knowingly exposed employees to a chemical that Boeing knew would make them sick. The court found the central fact that distinguished Birklid from all other prior Washington cases that discussed the meaning of "deliberate intention" in RCW 51.24.020 was that "Boeing. . . knew in advance its workers would become ill" from the chemical, yet put it into production anyway. Thus, the court found that the facts were sufficient for a jury to find that Boeing had actual knowledge that an injury was certain to occur and allowed the case to proceed to trial.
Birklid, 127 Wn.2d at 863.
In Stenger, the Court of Appeals, Division One applied the Birklid test in the context of an assaultive special education student. In Stenger, there was testimony that the student had caused between 1,316 and 1,347 injuries to school staff over the course of more than four years including "scratches, gouges, bites, upper body strain; scalp, breast, neck, back, shoulder, leg, arm, wrist, hand, and finger injuries; and bruising." The court found that "[g]iven the frequency of Jason's outbursts, the number of injuries he inflicted, and the claims filed with the District, a jury could reasonably conclude that the District had actual knowledge that the staff would continue to be injured by Jason in the future." The court thus found the first prong of the Birklid test was satisfied. The court then went on to consider whether a jury could conclude that the District's efforts to accommodate the student were inadequate and thus constituted willful disregard. The court found there was evidence supporting such a claim and allowed the matter to proceed to trial.
Stenger, 95 Wn. App. at 812.
Stenger, 95 Wn. App. at 813.
In Vallandigham, the Court of Appeals, Division Two arrived at a similar conclusion as the Stenger court on the issue of whether the District had actual knowledge that its employee was certain to be injured by an assaultive special education student. The court recounted the plaintiff's history of injury evidence, which included between 140 and 150 injuries as well as an admission by the District that it believed more injuries were probable, and determined the evidence "would support a jury finding that an injury, regardless of its timing or severity, was certain."
Vallandigham v. Clover Park Sch. Dist., 119 Wn. App. 95, 106, 79 P.3d 18 (2003).
However, the Vallandigham court split with the Stenger court as to the proper application of the willful disregard prong of the Birklid test. The Vallandigham court disagreed with the Stenger court's focus on the adequacy of the remedial measures, believing it eroded the requirement of deliberate intent. Without further defining willful disregard, the court simply found that it did not exist under the facts of the case before it.
The Supreme Court granted review of the Vallandigham decision. In Vallandigham v. Clover Park School District, the Supreme Court reiterated that the danger of injury must be certain, not substantially certain. In so doing, the court disapproved of the Stenger court's holding with regards to the first prong of the Birklid test. The court stated: "[W]e recognize that the first prong of the Birklid test can be met in only very limited circumstances where continued injury is not only substantially certain but certain to occur." The court went on to emphasize:
154 Wn.2d 16, 109 P.3d 805 (2005).
Vallandigham, 154 Wn.2d at 32 (emphasis in original).
We cannot overemphasize that the Birklid court considered and rejected both a "substantial certainty" and a "conscious weighing" test. Birklid, 127 Wn.2d at 865. Specifically, the Birklid court rejected the Michigan Supreme Court's conclusion that "'[i]f the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well.'" Id. at 864 (quoting Beauchamp [v. Dow Chem. Co., 427 Mich. 1, 21-22, 398 N.W.2d 882 (1986))]. Instead, the Birklid court, mindful of Washington's historically narrow interpretation of RCW 51.24.020, made it abundantly clear that foreseeability, or even substantial certainty, is not enough to establish deliberate intent to injure an employee. Birklid, 127 Wn.2d at 865. Even an admission that the district recognized that injury would probably occur is not enough to establish knowledge of certain injury. Only actual knowledge that injury is certain to occur will meet this first prong of the Birklid test. Birklid, 127 Wn.2d at 865.
Vallandigham, 154 Wn.2d at 33 (emphasis in original).
The court then went on to distinguish Birklid from the facts before it. The crucial factor for the court was the inherent unpredictability of behavior of special education students as compared to the predictability of the impact of the chemical at issue in Birklid. The court reasoned:
It is easy to see how the first prong of the Birklid test was met in Birklid, but not here; the facts of this case are easily distinguishable. In Birklid, impact of the phenolformaldehyde was predictable, Birklid, 127 Wn.2d at 863, Hope [v. Larry's Markets, 108 Wn. App. 185, 193-94, 29 P.3d 1268 (2001); the behavior of a child with special needs is far from predictable. Countless variables can impact a special education student's behavior from day to day, including whether or not the student has taken a prescribed medication. See CP at 17, 19. Therefore, the employer in the Birklid case was in a vastly different position than the employer in this case. While Boeing knew that the phenolformaldehyde fumes would continue to make employees sick absent increased ventilation, the Clover Park School District could not know what R.M.'s behavior would be from day to day. No one could be sure that R.M.'s violent behavior would not cease as quickly as it began. Unlike Boeing, the school district in this case attempted a series of increasingly restrictive strategies for bringing R.M.'s behavior under control. See supra p. 24. Each of these strategies was clearly intended to contain or halt R.M.'s aggressive behavior. The plaintiffs have not shown that the district could ever have been certain that any of these strategies would fail.[]
Vallandigham, 154 Wn.2d at 33-34 (emphasis in original).
Thus, the court found summary judgment was appropriate in Vallandigham because "given the inherently unpredictable nature of special education students like R.M., at no point could the school district have been certain that injury to staff would continue."
Vallandigham, 154 Wn.2d at 35 (emphasis in original).
Justice Sanders authored a dissent in which Justice Chambers concurred. In comparing the facts of the case to Birklid, Justice Sanders concluded: "When all is said and done, I cannot reasonably discern a distinction between dispatching an employee likely to be injured by hazardous fumes and dispatching a teacher to accompany an uncontrollable, assaultive student."
Vallandigham, 154 Wn.2d at 38.
Because the Vallandigham court found that the District did not have actual knowledge that employee injury was certain to occur, it did not need to reach the issue of willful disregard. However, the court did state its disapproval of Stenger to the extent it suggested "a finding of willful disregard can be based upon the simple fact that an employer's remedial efforts were ineffective."
Vallandigham, 154 Wn.2d at 35.
The facts of Vallandigham closely parallel the facts of this case; however, Navarre argues his case is different because here there is evidence that the Department knew Navarre was particularly vulnerable to injury by C.O. This is because Navarre suffered from his own disability that made it difficult for him to deal with C.O. and fend off C.O.'s violent attacks. Navarre suffered physical limitations stemming from a head injury that he suffered in a motor vehicle accident when he was a teenager.
In support of his argument, Navarre points to testimony by Habilitation Plan Administrator Michael Marconi who evaluated Navarre in October 1999 and determined Navarre lacked the prerequisite skills to effectively respond to C.O.'s outbursts and behavioral needs. Marconi sent a memo containing this information to the school superintendent and the Program Area Team A Director Lars Watson, and recommended Navarre and other individuals be removed from having direct contact with C.O.
Navarre also points to testimony by Navarre's direct supervisor John Thalle that after witnessing C.O. attack Navarre in November 1999, he did not feel it was wise for Navarre to be working with C.O. because he did not seem to be able to defend himself. Thalle further testified that he was so confident Navarre was going to get hurt when working with C.O. that he thought the only way of preventing him from getting hurt was to remove Navarre from C.O.'s unit. Thalle thus pulled Navarre from working on C.O.'s unit and protested vigorously to his supervisor Michael Phillips when Navarre was ordered to return. Thalle was told by Phillips that there was nothing he could do. Finally, Navarre cites the testimony of Phillips, who stated that based on past history he believed that in the Spring of 2000 that it was "a certainty" that C.O. was going to assault staff in the future.
However, even if it is true that if attacked Navarre would be completely helpless to defend himself and certainly would be severely injured, this does not get around the Supreme Court's strict requirement that the Department know that the attack was certain to occur. The court made a broad pronouncement in Vallandigham, seemingly barring recovery in all cases like this one based on the "inherently unpredictable nature of special education students." Simply put, the Supreme Court's broad holding states that because the behavior of special education students is far from predictable, and the student's assaultive behavior could cease at any time without notice, there is no way anyone could be certain that a student like C.O. would attack and injure anyone in the future.
Vallandigham, 154 Wn.2d at 35.
The Supreme Court's broad pronouncement recently has been applied by the Court of Appeals, Division Two to encompass all persons suffering from mental illnesses. Further, the Court of Appeals, Division Three took the Vallindigham pronouncement one step further and applied it to injuries resulting from corroding pipes in a chemical plant that eventually exploded and killed an employee. In Garibay, the court held even though the evidence showed that the employer knew or should have known that the rupture of the pipe was imminent or certain to occur, such knowledge did not support a reasonable inference that the injury to Garibay was certain to occur.
Brame v. Western State Hosp., 136 Wn. App. 740, 150 P.3d 637 (2007) (unpredictable nature of persons with mental illness meant hospital could not know with certainty that its patients would assault its employees).
Garibay v. Advanced Silicon Materials, Inc., ___ Wn. App. ___, 159 P.3d 494 (2007).
Garibay, 159 P.3d at 498.
Even the Department's admissions that it believed with certainty that its employees would continue to be assaulted and injured by C.O. is not enough to overcome the Supreme Court's holding, as the Vallandigham court rejected a similar challenge based on the District's admission that it recognized that injury would probably occur. Nor does it seem relevant that there was no evidence at the time of the assault in question to indicate that C.O.'s assaultive behavior would cease. Nor does the severity of Navarre's injuries, his vulnerability to attack, or the severity of C.O.'s assaults seem to be relevant in the Vallandigham court's analysis.
Vallandigham, 154 Wn.2d at 33.
While we believe the facts of this case blur the distinction between Birklid and Vallandigham that was so clear to the Supreme Court, we nevertheless feel constrained by the breadth of the holding in Vallandigham to reverse the trial court's summary judgment order in this case.
For the above reasons, we reverse.
I believe the majority correctly reads the Supreme Court's ruling in Vallandigham v. Clover Park School District, 154 Wn.2d 16, 109 P.3d 805 (2005), and I therefore reluctantly concur. I write separately to voice my disagreement with the standard produced by that decision, which renders the deliberate injury exception illusory. Because it derives from the "inherent unpredictability" that is the very core of human nature, the standard introduces a barrier to any claim of injury caused by human conduct unless the employer commits an essentially criminal act.
See Majority Opinion at 12.
It is thus very difficult to see what remains of Birklid v. Boeing Company, 127 Wn.2d 853, 904 P.2d 278 (1995). There, the employer knew in advance that injury would continue to occur if employees were sent into the danger zone. The mechanism of injury was not the issue. Here, as in Birklid, the employer knew in advance that workers would continue to be violently assaulted if assigned to work with the patient alone, and knew in advance that Navarre in particular was certain to be injured by such an assault. On these facts, a reasonable jury could find that the employer knew Navarre was certain to be injured, which is deliberate intent to injure. Under Vallandigham, however, the mechanism of injury becomes the central question, and certainty of continuing injury cannot be shown where the mechanism is human conduct, because human conduct is said to be unpredictable.
The Vallandigham standard thus eliminates the jury from the equation, and is deeply at odds with the rights of the parties to a jury trial. Certainty is not metaphysical, it is factual. As the facts here powerfully demonstrate, whether a particular human act is certain to occur is a jury question, human nature notwithstanding.
I am deeply conscious of the "great compromise" achieved by the Industrial Insurance Act, chapter 51.24 RCW. But the act itself creates the exception for deliberate injury. It is entirely contrary to the public interest to place workers in circumstances where injury is certain, and I do not believe the Vallandigham standard correctly reads the legislative intent. Rather, I fear that courts have, once again, "effectively read the statutory exception . . . nearly out of existence." Birklid, 127 Wn.2d at 862. We saw and corrected that situation in Birklid. I hope that we shall see fit to do so again.