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Mead v. Western Slate2/13/2004
definition of "specific intent to injure" set forth in Kittell, 138 Vt. at 441, 417 A.2d at 927, and allowing a showing of such intent based on a "substantial certainty" that injury would result. Plaintiff has cross-appealed, asserting that the trial court erred in denying the motion for joint and several liability, and that a remand is necessary to clarify the court's intentions concerning the award of costs.
10. We turn first to defendants' contention that the court erred by allowing plaintiff to prove a "specific intent" to injure based on a showing that defendants knew to a "substantial certainty" their conduct would result in injury to plaintiff. See Brueckner, 169 Vt. at 122, 730 A.2d at 1090 (on review of motion for judgment as a matter of law, "the question is whether the result reached by the jury 'is sound in law on the evidence produced.'") (quoting Kinzer v. Degler Corp., 145 Vt. 410, 412, 491 A.2d 1017, 1018 (1995)). As will appear, our resolution of this issue renders the parties' remaining claims moot.
11. Subject to certain limited exceptions, Vermont's workers' compensation statute provides the exclusive remedy for workplace injuries. 21 V.S.A. ยง 622. The statute represents a "public policy compromise in which 'the employee gives up the right to sue the employer in tort in return for which the employer assumes strict liability and the obligation to provide a speedy and certain remedy' for work-related injuries." Murray v. St. Michael's College, 164 Vt. 205, 209-210, 667 A.2d 294, 298 (1995) (quoting Lorrain v. Ryan, 160 Vt. 202, 214, 628 A.2d 543, 551 (1993)); accord Gerrish, 169 Vt. at 470-71, 739 A.2d at 1197-98; Dunham v. Chase, 165 Vt. 543, 543, 674 A.2d 1279, 1280 (1996) (mem.) ("Under the law, employees gain an expeditious remedy for workplace injuries without the burden of proving fault; in exchange, employers' liability is limited.").
12. Like most other jurisdictions, we have recognized an exception to the exclusivity rule for intentional injuries committed by the employer. See Kittell, 138 Vt. at 441, 417 A.2d at 927 (workers' compensation system covers workplace injuries arising by "accident," not those intended by the employer); Comment, Expansion of the "Deliberate Intention Exception" to Washington's Workers' Compensation Exclusivity: Following Birklid v. Boeing Co., When Does an Employer Intend Employee Injury ?, 32 Gonz. L. Rev. 225, 232 (1997) ("most jurisdictions recognize an intentional tort exception to the exclusive remedy provision of its workers' compensation system"). We stressed in Kittell, however, that the policy trade-off underlying the workers' compensation law was "best served by allowing the remedial system which the Legislature has created a broad sphere of operations." Kittell, 138 Vt. at 441, 417 A.2d at 927. Hence, we held that "nothing short of a specific intent to injure falls outside the scope of the Act." Id.; accord Dunham, 165 Vt. at 544, 674 A.2d at 1281 ("the exclusivity provision bars any claim against an employer short of intentional injury"). Under Kittell, even "wilful and wanton conduct leading to a sudden but foreseeable injury" is within the scope of the Act. 138 Vt. at 440, 417 A.2d at 926.
13. A growing number of jurisdictions have broadened the definition of specific intent beyond that set forth in Kittell, to include instances where the employer not only intends to injure the worker, but engages in conduct with knowledge that it is substantially certain to cause injury or death. See generally, Davis v. CMS Continental Natural Gas, Inc., 23 P.3d 288, 292-95 (Okla 2001) (collecting cases); M. Doran, The Substantial Certainty Exception to Workers' Compensation, 17 Campbell L. Rev. 413, 438-39 (1995
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