Opinion
No. 31408-8-II
Filed: November 30, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No: 01-2-03506-3. Judgment or order under review. Date filed: 12/23/2003. Judge signing: Hon. Leonard W Costello.
Counsel for Appellant(s), Randy Wallace Loun, Loun Tyner, 509 4th St Ste 6, Bremerton, WA 98337-1401.
Counsel for Respondent(s), Elizabeth Helen Buc Shea, Hacker Willig Inc PS, 520 Pike St Ste 2510, Seattle, WA 98101-4006.
Arnold M. Willig, Hacker Wilig Inc PS, 520 Pike Street, Suite 2510, Seattle, WA 98101-4006.
Tony T. Perry appeals summary judgment in favor of his former employer, Skookum Educational Programs. He argues the trial court erred in ruling that Washington's Industrial Insurance Act barred his lawsuit. We disagree and affirm.
Title 51 RCW.
FACTS I. On the Job Injuries
Skookum is a nonprofit organization that provides employment to people with disabilities. It provides janitorial services at the Puget Sound Naval Shipyard (PSNS). Perry began working as a janitor for Skookum at PSNS in 1999. Around June 10, 1999, Perry claims he was overcome by fumes while cleaning the bathroom because of faulty ventilation. He reported this incident to Skookum approximately two weeks later. Perry sought medical treatment on June 23, 1999.
On July 30, 1999, Perry slipped on the floor of the men's restroom during his shift and injured his nose on a stall door. He was taken to Harrison Hospital to have his nose examined. The medical records show no evidence of a fracture. Perry returned to work that night and finished his shift.
Perry continued to work at PSNS after the injuries, but complained that the continued lack of ventilation was causing frequent nosebleeds, headaches, and severe nasal drainage. At some point, Skookum transferred Perry to a different job driving delivery trucks. Although it is unclear from Perry's deposition, it appears he left Skookum because of an unsubstantiated allegation by a female employee.
Perry consulted Dr. Preston Rice about his continuing nasal symptoms. Dr. Rice diagnosed Perry with rhinitis and a deviated septum. He treated the rhinitis with a saline mist and cortisone inhaler, and he performed surgery on the deviated septum.
Perry filed a complaint with the Department of Labor and Industries (L I). It appears that L I paid his initial medical bills for injuries from both of the reported incidences, then refused to pay for his subsequent surgery.
II. Lawsuit
Perry sued Skookum, alleging failure to provide a safe workplace and intentional infliction of emotional distress. He sought damages for lost wages, medical expenses, and pain and suffering.
Skookum moved for summary judgment, arguing that the immunity provision in Washington's Industrial Insurance Act (IIA) barred Perry's claim. Skookum supported its motion with affidavits from Perry's supervisor and current employees about Skookum's participation in IIA, Skookum's responsiveness to its employees' safety, the lack of incident reports filed by Perry, and a communication from Perry that PSNS's ventilation was 'back up and everything was fine' several days after the fumes incident. Clerk's Papers (CP) at 76-87. In opposition, Perry submitted material to rebut Skookum's claim that its conduct did not fall within the IIA's 'deliberate intention' exception to employer immunity.
The trial court granted Skookum's motion for summary judgment and dismissed Perry's complaint with prejudice. Perry appeals.
ANALYSIS I. Summary Judgment
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); In re the Marriage of Ferree, 71 Wn. App. 35, 43, 856 P.2d 706 (1993). We consider all the facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Feree, 71 Wn. App. at 44.
After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the material issues of fact. Ferree, 71 Wn. App. at 44. The trial court should grant a motion for summary judgment only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437; Ferree, 71 Wn. App. at 44.
II. Industrial Insurance Act
The Industrial Insurance Act, codified at Title 51 RCW, entitles injured employees to 'speedy, no-fault compensation for injuries sustained on the job' and gives employers immunity from employee's civil suits. Howland v. Grout, ___ Wn. App. ___, 94 P.3d 332, 334 (2004) (citing Folson v. Burger King, 135 Wn.2d 658, 664, 958 P.2d 301(1998)).
The Legislature created an exception to this rule, permitting employees to file suit against their employers when the employer deliberately injures the employee:
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.
RCW 51.24.020. Washington courts have narrowly interpreted this exception. Birklid v. Boeing Co., 127 Wn.2d 853, 860, 904 P.2d 278 (1995); see also Judy v. Hanford Envtl. Health Found., 106 Wn. App. 26, 32, 22 P.3d 810, review denied, 144 Wn.2d 1020, 32 P.3d 284 (2001).
Perry alleged in his complaint that Skookum 'intentionally failed to provide Mr. Perry with a safe work environment' and Skookum's 'outrageous actions resulted in Mr. Perry experiencing pain and severe emotional distress,' which actions fell within an exception to the IIA under RCW 51.24.020. CP at 6-7. But the facts that Perry alleges, even taking them in the light most favorable to him, do not show actual knowledge of certain injury as required under Birklid.
A. Intentional Injury
In order for an employer's actions to fall under the exception, the employee must prove: (1) '[T]he employer had actual knowledge that an injury was certain to occur,' and (2) the employer 'willfully disregarded that knowledge.' Birklid, 127 Wn.2d at 864 n. 9, citing Beauchamp v. Dow Chem. Co., 427 Mich. 1, 398 N.W.2d 882, 891-92 (1986). Washington courts have required a showing of specific intent to injure in order to sustain a claim under RCW 51.24.020. Mere negligence does not rise to the level of deliberate intention; and gross negligence and failure to follow safety procedures do not constitute a specific intent to injure. Even an act that has substantial certainty of producing injury does not rise to the level of specific intent to cause injury. Howland, 94 P.3d at 334 (citing Folsom, 135 Wn.2d at 664-65); see also Goad v. Hambridge, 85 Wn. App. 98, 103, 931 P.2d 200, review denied, 132 Wn.2d 1010 (1997).
Skookum employees' affidavits state that Perry reported faulty ventilation in the building he was cleaning on one occasion, and this information was passed on to PSNS. A few days later, Perry reported that the ventilation was functioning. Perry's supervisor stated Perry had not complained to her about problems with ventilation or chemical fumes.
The excerpts from Perry's depositions submitted in opposition to summary judgment show conflicting statements about the use of chemicals, unsubstantiated claims of numerous complaint reports, and remedial actions by Skookum to alleviate the problem, including suggestions to change cleaning chemicals and Perry's work responsibilities. These documents, however, do not show Skookum actually knew the ventilation system was faulty on the day Perry was overcome by fumes. Nor do they show Skookum required Perry to use noxious chemicals to perform his duties that day. The documents do not even support negligence by Skookum or a failure to follow safety procedures.
The slip and fall incident might be 'arguably foreseeable' based on the nature of Perry's job and the condition of a typical restroom floor. Judy, 106 Wn. App. at 33. But in his deposition, Perry states Skookum required him to wear tennis shoes, even though he did not want to, because of the slick condition of the floor. This fact is insufficient, however, to show Skookum's actual knowledge of certain injury as required in the first prong of Birklid. See also Goad, 85 Wn. App. at 104 (employer's knowledge that any injury was potential was insufficient evidence that an injury was certain to occur as required by Birklid).
Because Perry fails to satisfy the first prong of the Birklid test, we need not address the second prong willful disregard of knowledge that injury was certain to occur. Judy, 106 Wn. App. at 32. (Summary judgment must be granted unless a reasonable jury could conclude that both prongs are satisfied.) We hold that the trial court properly granted summary judgment on Perry's claim that Skookum intentionally failed to provide him with a safe work environment.
B. Tort of Outrage
Perry also argues the trial court erred in granting summary judgment to Skookum on his outrage claim. We disagree.
In order for such claim to be exempt from the IIA, the conduct must be so egregious as to constitute the tort of outrage. Birklid, 127 Wn.2d at 870. To recover for emotional distress inflicted by outrageous conduct, Perry had to establish the basic elements of outrage: (1) extreme and outrageous conduct; (2) intentional (or reckless) infliction of emotional distress; and (3) severe emotional distress as an actual result of such conduct. Birklid, 127 Wn.2d at 867, (citing Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987)); Restatement (Second) of Torts sec. 46 (1965). Applying these standards here, Perry needed to show that the conduct of Skookum employees was intentional, not merely reckless. He did not make this showing.
As we discuss above, the Skookum employees' conduct did not rise to the level of negligence, much less reckless or intentional infliction of emotional distress. Perry cannot satisfy the elements of the tort of outrage. Therefore, his claim is not exempt from the IIA, and the trial court did not err in dismissing Perry's claim for outrage on summary judgment.
We affirm.
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.
MORGAN, A.C.J. and ARMSTRONG, J., concur.