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Hunsperger v. USF Reddaway9/1/2004
eading to litigation occurred. There was no accident here. The present case is the first case to reach this court in which the acts alleged go beyond gross negligence of the employer, and involve willful disregard of actual knowledge by the employer of continuing injuries to employees."
Birklid, 127 Wash 2d at 863, 904 P2d at 284. Our view is that the quoted language relates to the particular circumstances at issue in Birklid but is not part of Birklid's clearly stated holding, which incorporates no "prior similar incident" requirement.
It may well be that in the vast majority of cases employers will not have knowledge to the requisite level of certainty unless the practice has caused prior similar incidents. However, one can easily imagine situations where prior incidents are unnecessary to actual knowledge. If an employer required an employee to jump from a five-story building, it could hardly be maintained that the employer did not have "actual knowledge that an injury was certain to occur" simply because the employer had not made a previous similar order that resulted in injury.
Although plaintiff's claim does not fail for lack of a prior similar incident, we conclude that plaintiff nevertheless has not presented a legally sufficient basis for a jury conclusion that defendant had actual knowledge that injury was certain to occur. Several post-Birklid cases are useful on this point. In Goad v. Hambridge, 85 Wash App 98, 100, 931 P2d 200, 201, rev den, 132 Wash 2d 1010, 940 P2d 654 (1997), an employee was injured when he reached in to remove a piece of wood from a planer at his employer's sawmill. The planer manufacturer had repeatedly advised the employer that employees should be periodically warned of the dangers posed by the planer and offered guards and signage to make its use safer. Id. The employer did not follow that advice or add guards or signs. Id. However, all operators, including the plaintiff, were told not to reach into the planer while it was running. Id. at 101, 931 P2d at 202. The Washington Court of Appeals concluded:
"In this case, * * * the [plaintiffs] have presented no evidence that [the defendant] knew [the employee's] injury was certain to occur. At best, [the defendant] knew of the potential of an injury similar to [the employee's], which is not enough to satisfy the Birklid standard."
Id. at 104, 931 P2d at 203 (emphasis in original).
In Folsom v. Burger King, 135 Wash 2d 658, 958 P2d 301 (1998), the court found a similar lack of certainty. In that case, a former employee--whom the employer had hired knowing of his violent felony record--murdered two other employees during a robbery of the employer's restaurant. 135 Wash 2d at 665-66, 958 P2d at 306. All employees knew that the employer kept large amounts of cash in the restaurant. Id. at 666, 958 P2d at 306. The restaurant's back entrance did not have a security peephole and did not lock properly, and the employer had discontinued its security monitoring system. Id. at 667, 958 P2d at 306. The employees were murdered when the former employee entered through the back door in order to rob the restaurant. Id. at 661, 958 P2d at 304. The court concluded that the plaintiffs could not demonstrate "that by operating the business in the way [the defendant] did, [the defendant] knew its employees would be killed." Id. at 667, 958 P2d at 307 (emphasis added).
Finally, in Judy v. Hanford Environmental Health Foundation, 106 Wash App 26, 22 P3d 810, rev den, 144 Wash 2d 1020, 32 P3d 284 (2001), the plaintiff worked at the Hanford Reservation as a manual laborer. 106 Wash App at 30, 22 P3d at 813. The plaintiff was referred to Hanford's health facility to evalua
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