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Mead v. Western Slate2/13/2004
two federal safety regulations. He offered no testimony, however, tying a second rock fall to any particular time-frame. All that the evidence shows, therefore, is a substantial risk of second fall, but there is no evidence that it was substantially certain to occur within a few hours, or a day, or a month. Nor was there any evidence presented of prior falls leading to injuries under similar circumstances at the Western quarry or elsewhere within defendants' knowledge. Thus, the evidence cannot support a reasonable inference that defendants knew to a substantial certainty that the decision directing plaintiff to continue to work until Harrison returned from his errand would result in plaintiff's injury. Indeed, neither Harrison nor anyone else on site - including plaintiff - expected the accident to occur. Even as he waited for word from Harrison as to how to proceed, plaintiff - an experienced quarry worker in his own right - voluntarily commenced to complete the drilling that he had started the day before, and later expressed surprise at the occurrence of the second fall. The evidence thus belies any rational inference that Harrison knew to a substantial certainty that directing plaintiff to work until he returned to inspect the area would result in plaintiff's injury.
19. This is not a case where an employer, for example, knowingly orders workers to expose themselves to dangerous fumes or toxic materials that are a constant and unavoidable presence in the workplace, see, e.g., Millison, 501 A.2d at 508-509, or instructs an employee, over his objection and at the risk of termination if he refused, to operate a table-saw knowing that other employees had previously suffered injuries because of the lack of a safety guard which the employer had willfully removed to improve production speed. Mandolis v. Elkins Indus., Inc., 246 S.E.2d 907, 914-15 (W. Va. 1978). Here, there is little doubt that defendants were negligent in exposing plaintiff to the known risk of a subsequent rock fall, but unlike these other cases there is no evidence from which a jury could reasonably infer that defendants knew the injury to plaintiff was substantially certain to occur. This conclusion is buttressed by the trial court's own ruling that plaintiff failed to adduce sufficient evidence to submit the question of punitive damages to the jury, a standard which may be satisfied either "where the defendant's wrongdoing has been intentional and deliberate," Bruekner, 169 Vt. at 129, 730 A.2d at 1095, or by "conduct showing a reckless or wanton disregard of one's rights." Id. (Internal citations omitted; emphasis added). We agree, and conclude, a fortiori, that the evidence also failed to demonstrate misconduct by defendants evidencing a knowing and willful disregard of risks that made injury to plaintiff a substantial certainty.
20. While their standards may vary, decisions from other states that have adopted the substantial certainty test uniformly hold that the exception must be reserved for the exceptional case, where it can be said that the employee's injury - viewed in light of the risks known to the employer at the time - was not truly an accident. This is not such a case. We hold, therefore, that the evidence was insufficient as a matter of law to support the jury's finding that defendants knew to a substantial certainty their actions would result in injury to plaintiff. Accordingly, the judgments in favor of plaintiff and against defendants must be reversed. Our holding renders it unnecessary to address the parties' remaining claims.
Reversed.
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