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Davis v. United States Employers Council Inc.3/19/1997
have quoted from Kilminster, the Supreme Court clearly reiterated the point from its earlier cases that "certainty of injury" is very much a part of the appropriate analysis and can be pivotal to the chain of inferences from which liability under ORS 656.156(2) can be found.
In sum, the majority's view of what Kilminster means is not strengthened by the fact that some of the isolated language that the majority emphasizes in that opinion has analogs in Lusk. For purposes of my analysis in this Dissenting opinion, it is unnecessary for me to express a view about whether the majority is or is not correct in the way it reads Lusk. It suffices to say that, if the majority is right in that regard, but see note 1, Lusk as well as the majority's decision here are in conflict with the Supreme Court's decision in Kilminster, and the latter controls.
The majority makes one further point, which I will quote at length, rather than attempt to paraphrase:
"The Dissent's criticism flows from a false first premise, i.e., that the facts alleged in Kilminster, if proved, would conclusively establish the defendant employer's 'deliberate intention' to injure the decedent. Kilminster does not so hold. Rather, the court held that, if proved, the facts alleged by plaintiffs were sufficient to permit a jury to infer the necessary, actionable state of mind:
" 'A reasonable finder of fact could infer that DMC acted as it did because it wished to injure or kill decedent. A specific intent to injure or kill decedent certainly is not the only state of mind that could be inferred, but it is a permissible inference. We need not consider whether plaintiff can prove that defendants had the alleged specific intent to injure or kill decedent; in the
procedural posture of this case, we consider only the sufficiency of the complaint.' 323 Or. at 633(emphasis supplied; emphasis in original deleted).
"Thus, the court did not hold the plaintiffs' allegations, if proved, compelled a finding of liability. That is, the Kilminster court understood and expressly acknowledged that, even if the plaintiffs were able to prove that the employer deliberately withheld safety measures despite the certainty of injury , those facts would not automatically establish 'deliberate intention,' because the requisite 'wish to injure' was just one of a range of mental states the jury could infer from those facts. Among the range of other reasonably inferable, but nonactionable, mental states, is that the employer acted as it did not because it wished to injure the defendant but merely because it wanted to save money." 147 Or.App. at 176-177, 934 P.2d at 1149-1150. (Emphasis in original.)
The "first premise" that the majority attributes to this opinion is simply not here. As the majority indicates, and I agree, it is basic and blackletter law that questions of the mental state that accompany a party's actions are almost invariably for the factfinder to decide, and the factfinder is not required to infer a particular mental state even when the predicate facts are present to permit the inference to be drawn. However, the relevant question here is not what a factfinder must find but what it may find. In this case, as in Kilminster, the issue is whether there is a permissible inference of deliberate intention to injure that a trier of fact may draw. The answer is yes, and that is why the trial court erred and why the majority errs in affirming the directed verdict.
For all of the above reasons, I respectfully Dissent.
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