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Hunsperger v. USF Reddaway9/1/2004
te her physical ability. Id. The examination revealed that plaintiff was "not physically capable of performing the physical essential functions of the job." Id. However, the plaintiff was never informed of that conclusion, nor was she assigned to other work. Id. After her injury, the plaintiff learned of the examination's conclusion. Id. at 30-31, 22 P3d at 813. She argued that her employer, aware of the examination's results, was certain she would be injured. The court concluded that the "level of certainty [required by Birklid] is not present here. It can hardly be said that [the plaintiff's] employer knew she would be injured, or that injury was such a certainty it should have known." Id. at 33, 22 P3d at 814.
Here, plaintiff was required by his employer to be a pedestrian in a congested, noisy, poorly lit yard, among yard goats driven around sharp corners and in close spaces by drivers with relatively less experience, where all persons in the yard were encouraged to hurry. Truck drivers' concerns about the dangerous potential of the conditions were well known to defendant. Defendant even provided some safety measures--reflective vests--to security personnel required to be on the site as pedestrians. Collisions between yard goats and pedestrians at night were certainly foreseeable and may even have been substantially certain. However, unlike Birklid, where the employer could be certain that exposing the same chemical to a group of employees under the same conditions would result in injury to at least some of them, defendant here was not certain of a bad result. As in Goad, Folsom, and Judy, too many variables--most notably the care exercised by the yard goat drivers and the pedestrians--were unknown. Sufficiently similar prior incidents, or some other conditions, might well have provided defendant with sufficient certainty, but such evidence is not present here. The prior accident involving a yard goat driver at the Medford yard is too dissimilar to have provided defendant with notice as to the certainty of injury due to the conditions in the yard at issue.
Plaintiff has not shown that there is a genuine issue of fact or a reasonable inference to be made regarding defendant's "actual knowledge that an injury was certain to occur." We therefore do not reach the second prong of the Birklid test, addressing whether defendant "willfully disregarded that knowledge."
Affirmed.
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