 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mead v. Western Slate2/13/2004
) (summarizing various jurisdictions' approach to substantial certainty test); Annot., What Conduct is Willful, Intentional, or Deliberated Within Workmen's Compensation Act Provision Authorizing Tort Action for Such Conduct, 96 A.L.R.3d 1064 (1979 & Supp. 2003) (collecting and summarizing cases); A. Larson & L. Larson, 6 Larson's Workers' Compensation Law §§ 103.04 -103.04 at 103-12-103-20.1 (2003) (discussing origin and development of substantial certainty test). On the continuum of tortious conduct, substantial certainty has been described as just below the most aggravated conduct where the actor intends to injure the victim; it is more than "mere knowledge and appreciation of a risk," Pariseau v. Wedge Products, Inc., 522 N.E.2d 511, 514 (Ohio 1988) (quoting Prosser & Keeton, The Law of Torts 36 (5th ed. 1984)), "beyond gross negligence," Birklid v. Boeing Co., 904 P.2d 278, 284 (Wash. 1995), and more egregious than even "mere recklessness" in which the actor knows or should know that there is a strong probability that harm may result. Pariseau, 522 N.E.2d at 513 n. 1 (quoting Restatement of the Law (Second) Torts, § 8A cmt. b (19 )); see Restatement of the Law (Second) Torts, § 500 cmt. f (differentiating reckless conduct, which requires "strong probability" of harm, from substantial certainty). Thus, the substantial certainty standard has been variously described as "tantamount to an intentional tort," Woodson v. Rowland, 407 S.E.2d 222, 228 (N.C. 1991), a "surrogate state of mind for purposefully harmful conduct," Suarez v. Dickmont Plastics Corp., 639 A.2d 507, 518 (Conn. 1994) (Borden, J; concurring and dissenting), and "a substitute for a subjective desire to injure." Millison v. E.I. DuPont de Nemours & Co., 501 A.2d 505, 514 (N.J. 1985).
14. The standard is not uniform. Some states that have modified their specific-intent exception have opted for a stricter test than substantial certainty, requiring a showing of knowledge by the employer that injury is "certain" or "virtually certain" to occur. See, e.g., Millison, 501 A.2d at 514 (substantial certainty standard requires showing of "virtual certainty"); Zimmerman v. Valdak Corp., 570 N.W.2d 204, 209 (N.D. 1997) ("An employer is deemed to have intended to injure if the employer had knowledge an injury was certain to occur and willfully disregarded that knowledge."); Fryer v. Kranz, 616 N.W.2d 102, 106 (S.D. 2000) ("substantial certainty should be equated with virtual certainty"); Birklid, 904 P.2d at 285 (intentional injury "means that the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge"). Other states have enacted specific statutes codifying relatively stringent intent-to-injure exceptions in response to more expansive court decisions. See, e.g., Mich. Comp. Laws § 418.131 (intentional tort exception applies where employer "has actual knowledge that an injury was certain to occur and willfully disregarded that knowledge," modifying Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 893 (Mich. 1986), which adopted substantial certainty test).
15. A number of state courts have also rejected invitations to adopt the "substantial certainty" standard, choosing instead to retain the strict requirement that the employer harbor "a specific intent to injure an employee." Fenner v. Municipality of Anchorage, 53 P.3d 573, 577 (Alaska 2002); see also Limanowski v. Ashland Oil Co., 655 N.E.2d 1049, 1052-53 (Ill. App. Ct. 1995) (rejecting substantial certainty standard on ground that "specific intent to injure" is more consistent with purposes of workers' compensation statute); Davis v. United States Employers Council, Inc., 934 P.2d 1142, 1150 (Or. 1997) (statutory exception
Page 1 2 3 4 5 6 Vermont Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|