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Mead v. Western Slate2/13/2004
for "deliberate" injuries must be narrowly construed to require evidence the employer "wish to injure"); Lantz v. National Semiconductor Corp., 775 P.2d 937, 940 (Utah Ct. App. 1989) (rejecting plaintiff's argument that "knowing to a substantial certainty that injury will follow is sufficient to invoke the exception . . . to the exclusiveness of the workers' compensation remedy"). Courts adopting the substantial certainty standard have also drawn harsh criticism from some commentators for "alter the balance of interests within the workers' compensation system," Note, The Intentional-Tort Exception to the Workers' Compensation Exclusive Remedy Immunity Provision: Woodson v. Rowland, 70 N. C. L. Rev. 849, 880 (1992), employing a "vague" and "ill-defined" standard, J. Burnett, The Enigma of Workers' Compensation Immunity: A Call to the Legislature for a Statutorily Defined Intentional Tort Exception, 28 Fla. St. U. L. Rev. 491, 493, 517 (2001), and impinging upon the policy prerogatives of the legislative branch. See, e.g., Note, Ohio's "Employment Intentional Tort:" A Workers' Compensation Exception, Or the Creation of an Entirely New Cause of Action, 44 Cleve. St. L. Rev. 381, 404 (1996) (courts should defer to legislature "to determine the appropriate standard" for intentional tort exception); Leftwich, supra, 70 N.C. L. Rev. at 880 (changes in "delicate balance" underlying workers' compensation act "should come from the legislature").
16. Even those courts that have adopted the substantial-certainty test have stressed that it is intended to operate as a "very narrow exception," Suarez, 639 A.2d at 516, intended for the most "egregious employer conduct," Millison, 501 A.2d at 511, and hence is "to be strictly construed." Sorban v. Sterling Eng. Corp., 830 A.2d 372, 377 (Conn. App. Ct. 2003). As the New Jersey Supreme Court in Millison, 501 A.2d at 514, explained, "the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality."
17. Turning to the case at bar, the trial court - as noted - concluded that our decision in Kittell did not preclude recognition of the substantial certainty standard, and found that the evidence adduced by plaintiff was sufficient to support the jury's finding based on this standard. Having carefully reviewed the record evidence, however, we are unable to agree with the court's evidentiary analysis. Even assuming that we were receptive to modifying Kittell consistent with the trial court's approach, and viewing the evidence in the light most favorable to the judgment, we do not believe that the record here "fairly and reasonably" supports a rational inference that defendants knew to a substantial certainty their actions would result in injury to plaintiff. Gero v. J.W. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000); see also Brueckner, 169 Vt. at 122, 730 A.2d at 1090 (on appeal from denial of motion for judgment as a matter of law, "this Court . . . views the evidence in the light most favorable to the nonmoving party and excludes the effect of any modifying evidence").
18. Viewed in light of this standard, the evidence shows - at most - that Harrison directed plaintiff and his co-workers to continue to work in the quarry knowing that a rock fall had recently occurred and that it represented a dangerous situation that required attention. Plaintiff's expert, a former inspector for the federal Mine Safety and Health Administration, also opined that another fall was substantially certain to follow the first, and that allowing the drilling to proceed violated at least
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