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Fryer v. Kranz9/6/2000
this unknown was removed by the plain warning on the package. The hiring of only workers who could not read warning labels confirms that the employer wanted those employees to continue to inhale these and suffer these known consequences. A court could well say that this amounted to intending the injury. Id. at 103-42. (emphasis in original).
Likewise, Kranz knew that Fryer had earlier suffered adverse effects from the fumes, knew that he himself had reacted to them, knew from the warning label that the acid should not be used as he was ordering his employee to use it, and knew that by following his direction Fryer would be exposed to concentrated fumes in the small space he ordered her to clean. See Cunningham v. Anchor Hocking Corp., 558 So2d 93 (FlaDistCtApp 1990) (employer knowingly exposed workers to toxic fumes).
[ ] Contrast Larson's hypothetical with what happened in Schefsky v. Evening News Ass'n, 425 NW2d 768 (MichApp 1988). There, the employee claimed to have developed chemical asthma from using and inhaling solvents while cleaning printing presses. Id. at 769. In denying his tort claim, the court reasoned that the employee did not assert that the employer had "actual knowledge that an injury , such as chemical asthma or any other serious or permanent respiratory disease, was certain to occur following exposure to the solvents[.]" Id. at 771. In fact, the employee conceded that the " efendant [employer] may not have specifically intended plaintiff's illness." Id. That the worker might suffer any adverse consequences from the solvents remained unknown to both employer and employee.
[ ] Suppose in Harn that before any injury , the employer earlier witnessed the employee nearly being struck by a flying chunk of wood because a safety guard was not in place. And suppose, like Kranz, the employer responded, "Well, when that happens, you need to take a break." Would there still have been no intentional tort? Or, suppose in Brazones the employees had complained about flare-ups in the storage tank they were cleaning, and the employer said, "Well, when that happens you need to get some air," or "try not to get burned." Even with these added facts we might well have ruled that because a flying chunk of wood or a flare-up are matters of chance, unpredictable, they would still not place the employer within the exception. But here, as in Larson's example, the exposure and adverse effects were "continuously operative."
[ ] While Fryer does not suggest that Kranz spitefully tried to hurt her, she does assert that Kranz knew injury was substantially certain to occur from exposure to acidic vapors. We must never forget that we view not only the facts favorably to the nonmoving party, but also the reasonable inferences from those facts. Wilson v. Great N. Ry. Co., 83 SD 207, 157 NW2d 19, 22 (1968) (citations omitted). In this light, Kranz's familiarity with this toxic chemical, his knowledge that it was causing Fryer problems, and his direction that she continue working in the same fashion in an even more confined area, all tend to show knowledge that his conduct was substantially certain to result in injury. See Brazones, 489 NW2d at 907 (citations omitted). It was impossible to use the product without adverse effects under the conditions that Fryer was instructed to use it, undiluted and in a small, unventilated room where the fumes would concentrate. See Kielwein v. Gulf Nuclear, Inc., 783 SW2d 746, 748 (TexApp 1990) (unprotected worker sent to clean up radioactive isotope spill).
[ ] In situations where dangerous equipment or conditions create only the probability of injury, harm may yet remain a matter of chance. On the other hand, breathing concentrated acid fum
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