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Davis v. United States Employers Council Inc.3/19/1997
s to make more money. Where defendant harms plaintiff as a necessary means to the motivating end, the law holds defendant to intend the harm to plaintiff."
Defendant counters that, to prove "deliberate intention," plaintiff must show that defendant "wished" to injure plaintiff. Defendant further asserts that plaintiff's opening statement identified no proof of such a "wish" or "desire" to injure. We agree.
Assuming the truth of plaintiff's evidence, as outlined in his opening statement, plaintiff could prove that: (1) Defendant knew that plaintiff and other employees were suffering severe respiratory symptoms because of their exposure to paint fumes. (2) Defendant further knew that, unless it provided better safety equipment, plaintiff or some other similarly situated employee was certain to suffer severe
injury . (3) Notwithstanding that certainty of injury, defendant did not provide better protective equipment or undertake other related safety measures. (4) Defendant did not provide the necessary equipment and chose, instead, to expose its employees to the certainty of serious injury, because it wanted to save money.
The last point bears reiteration because it is the sine qua non of the analysis that follows: Plaintiff acknowledges that the defendant employer, at worst, acted from a desire to save money and not from an affirmative desire to injure plaintiff or his co-workers. At oral argument, plaintiff's counsel was explicit in that regard:
"I do want to make clear this concession. I will tell you that we cannot prove, * * * we will not be able to prove that they hated Larry Davis and that their motive was to hurt him. We are not hoping for a decision that says, well, 'you knew that it would [hurt him] so it's possible to infer' * * *. We're not able to prove that so it would waste everybody's time to find that there wasn't a concession [that defendant had no desire to hurt plaintiff]."
That acknowledgment--that plaintiff cannot prove that his employer withheld safety equipment because it wished to injure him--precludes plaintiff's tort claims. See Kilminster; Lusk.
In Lusk, we considered whether workers' compensation exclusivity barred a claim arising from circumstances similar to those presented here. There, the plaintiff was employed as a painter for the defendant mobile-home construction company. The plaintiff worked in a painting booth without adequate ventilation and was exposed to paint vapors that can cause respiratory problems. The plaintiff began to suffer headaches, nausea, irritability, and memory loss. He complained to his supervisor, who, in turn, asked defendant to furnish the painters with supplied-air respirators. The defendant refused to buy the respirators because it did not wish to spend the necessary $2,000 per unit. The
plaintiff became permanently disabled as a result of the paint-vapor exposure.
The plaintiff subsequently brought a personal injury action against his employer, alleging that the defendant had deliberately intended to injure him. The defendant moved for summary judgment, asserting that the plaintiff's action was barred by workers' compensation exclusivity. The plaintiff contested summary judgment, asserting, inter alia, that there was, at least, a factual issue as to whether the defendant acted with a "deliberate intention" to produce plaintiff's injury. ORS 656.156(2). The trial court concluded that there was no evidence from which a jury could infer the requisite "deliberate intention" and granted summary judgment.
On appeal, the plaintiff argued that
"a jury could find that defendant knew that the paint fumes were injur
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