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Davis v. United States Employers Council Inc.3/19/1997
ing him and that it made a conscious decision to continue to expose him to the hazard with that knowledge [and that] from those facts * * * a jury could infer that defendant deliberately intended to injure him." 97 Or.App. at 186, 775 P.2d 891.
In so arguing, the plaintiff referred to the presumption in OEC 311(1)(a) that a "person intends the ordinary consequences of a voluntary act." He also invoked Restatement (Second) Torts, section 8A, which defines "intention" as "desir to cause consequences of [one's] act, or * * * believ that the consequences are substantially certain to result from it." Thus, the plaintiff in Lusk "assume that the statutory phrase 'deliberate intention * * * to produce such injury ' establishes the same standard as does the term 'intent' in the common law of intentional torts." 97 Or.App. at 186, 775 P.2d 891.
We rejected that argument, holding that the test of "deliberate intention" in ORS 656.156(2) was distinct from concepts of "intentionality" expressed in either OEC 311(1)(a) or the Restatement:
"If [plaintiff] were correct, we would have no difficulty in holding that he has shown enough to defeat defendant's motion for summary judgment. However, plaintiff wrongly interprets the statutory standard.
" * * * * *
" * * * The statutory exemption applies only if the injury results 'from the deliberate intention of the employer of the worker to produce such injury * * *.' That phrase requires, in addition to the intent that will normally suffice to prove an intentional tort, that the injury be 'deliberate,' in the sense that the employer has had an opportunity to weigh the consequences and to make a conscious choice among possible courses of action, and also that the employer specifically intends 'to produce * * * injury' to someone, although not necessarily to the particular employe who was injured. An employe does not satisfy those requirements by showing that the employer refused to provide safety equipment, even if injury is the necessary result of that failure. It is not enough for the employer to act with conscious indifference to whether its actions will produce injury; it must intend to produce injury." Id. at 186-88, 775 P.2d 891 (emphasis supplied; original emphasis deleted).
Thus, under Lusk, a plaintiff who relies on ORS 656.156(2) to avoid the workers' compensation exclusivity bar of ORS 656.018 must prove both that the employer acted deliberately and that the employer acted with a specific intent to produce injury to the plaintiff or someone similarly situated. In so holding, the Lusk majority explicitly disapproved the analysis expressed in a special concurrence. See 97 Or.App. at 190, 775 P.2d 891 (Riggs, J., specially Concurring). The special concurrence asserted that requiring proof of both "deliberation" and "specific intent" to produce injury was erroneous and, indeed, "disingenuous":
"Plaintiff alleges that defendant was aware of the consequences of its actions, was aware of the existence of alternative courses of action and deliberately chose to inflict injury on plaintiff rather than adopt a different course. Neither statute nor policy requires that an employer be provided with an exemption from tort liability for having made such a choice." Id. (citations omitted).
The majority rejected that approach:
"The special concurrence focuses on the 'certainty' of injury, that is, whether the employe will be hurt, rather than on the intent behind the injury, that is, why the employe will be hurt. An injury can result 'certainly' from negligence or conscious indifference and thus not meet the statutory standard. Conversely, an employer can have the
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