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Hunsperger v. USF Reddaway9/1/2004
was certain to occur and willfully disregarded that knowledge." Id.
We address the first element, whether defendant could have had "actual knowledge that an injury was certain to occur," before we address whether defendant disregarded that knowledge.
From the facts and holding of Birklid and subsequent cases, we glean some additional guidance as to what is required to show "actual knowledge that an injury was certain to occur." The facts of Birklid show that the employer's intent need not be directed toward a particular employee; rather, it is enough that the intent is directed toward a class of employees. Birklid also suggests that the employer need not intend that injury occur; rather, the employer must only intend that circumstances certain to cause injury exist. See Hope v. Larry's Markets, 108 Wash App 185, 194, 29 P3d 1268, 1273 (2001) (agreeing with that interpretation of the Birklid rule). The employer's "actual knowledge that an injury was certain to occur" can be inferred from the fact that the employer was given certain information. Finally, we note that "certainty" that injury will occur is essential; a "substantial certainty" standard was expressly rejected by the Birklid court. Birklid, 127 Wash 2d at 865, 904 P2d at 285.
Defendant would have us add an additional requirement: that the employer's "actual knowledge" can arise only from the existence of prior similar incidents. Defendant points out that the only post-Birklid Washington cases allowing the plaintiffs to defeat summary judgment involved employers who were aware of prior similar incidents. Because defendant here was not aware of any prior incidents where yard goat drivers struck pedestrians at night in the yard, defendant reasons, defendant cannot be charged with the knowledge required under the Birklid standard.
Although we ultimately agree with defendant that plaintiff has failed to present a jury issue under the Birklid standard, we disagree that Birklid requires the existence of prior similar incidents. It is true that the three post-Birklid cases allowing the plaintiffs to defeat summary judgment all involved an employer with notice of prior similar incidents. See Vallandigham v. Clover Park School Dist., 119 Wash App 95, 79 P3d 18 (2003), rev allowed, 151 Wash 2d 1031, ___ P3d ___ (2004) (a jury could find that the school district knew that injury was certain where a disabled student had injured teachers at least 150 to 160 times over a five-year period; however, the plaintiffs' evidence failed to show that the defendants willfully disregarded that knowledge); Hope, 108 Wash App at 194-95, 29 P3d at 1273-74 (a jury could find that the employer knew that the industrial cleaners that the employee was required to use were certain to cause injury where the employee had notified the employer of numerous prior injuries caused by those cleaners); Stenger v. Stanwood School Dist., 95 Wash App 802, 977 P2d 660 (1999) (a jury could find that the school district knew that an injury was certain where a disabled student had caused between 1,316 and 1,347 injuries to teachers). From the prior incidents in those cases, the courts found that a jury could reasonably infer that the defendants had "actual knowledge that an injury was certain to occur." But none of those cases suggest that prior incidents are the only possible source of such an inference.
Defendant also points to language in Birklid that hints at a "prior incident" requirement. The Birklid court, in distinguishing past cases, explained:
"In all the other Washington cases, while the employer may have been aware that it was exposing workers to unsafe conditions, its workers were not being injured until the accident l
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