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Davis v. United States Employers Council Inc.3/19/1997
specific intent to produce an injury that was not 'certain' to result from its acts, as in Weis v. Allen [, 147 Or. 670, 35 P.2d 478 (1934) ]. The special concurrence would read the word 'deliberate' out of the statute. Moreover, it fails to address the other (and, in this case, more difficult) requirement of the statute: the specific intent 'to produce injury.' " 97 Or.App. at 188 n. 4, 775 P.2d 891 (original emphasis in boldface; other emphasis supplied).
We then proceeded to assess the sufficiency of the plaintiff's proof with respect to the two conjunctive requirements. The "deliberate" quality of the employer's conduct was straight-forward:
"A jury could find that defendant knew that plaintiff was suffering injury from the paint, knew that he would continue to do so as long as he worked without a supplied-air respirator and, after deliberation, consciously decided not to provide such a respirator. It could, therefore, find that defendant's acts were 'deliberate.' " Id. at 188, 775 P.2d 891.
Finally, we addressed "the more difficult question" of whether the defendant specifically intended to produce an injury :
"The affidavits suggest that defendant failed to provide the respirator because of the cost. Such a reason, while perhaps not laudable, is not a specific intent to produce an injury . However, the trial court on summary judgment, like a jury, need not accept defendant's proffered reason in isolation. Specific intent to injure may be inferred from the circumstances.
"Here, a jury could infer, from all of the circumstances, that defendant failed to provide the respirator because it wished to injure plaintiff: Defendant knew that the paint was highly toxic and that plaintiff's resulting injury was substantial and continuing; it did not follow the warnings of the paint manufacturer and the urging of its insurer to furnish a supplied-air respirator; plaintiff and his supervisor had complained about the problem repeatedly; and the cost
of proper, available equipment (which defendant knew would soon be required by the state) was not prohibitive. A specific intent to produce injury is not the only permissible inference to be drawn from defendant's apparent obstinacy, but it is one that a jury should be permitted to consider." Id. at 189, 775 P.2d 891 (original emphasis in boldface; other emphasis supplied).
Thus, because there was a triable issue of fact in Lusk as to whether the employer specifically intended to produce the injury , we reversed and remanded for trial.
Lusk yields three pertinent principles: First, to prove "deliberate intention" within the meaning of ORS 656.156(2), a plaintiff must prove that a defendant employer acted as it did "because it wished to injure plaintiff." 97 Or.App. at 189, 775 P.2d 891 (original emphasis in boldface; other emphasis supplied).
Second, where an employer fails to undertake safety measures solely because of cost, that failure, even when the employer knows injury is certain to occur, is not actionable under ORS 656.156(2). "Such a reason, while perhaps not laudable, is not a specific intent to produce an injury." Id. at 189, 775 P.2d 891.
Third, where a plaintiff proves that a defendant employer deliberately failed to undertake safety measures knowing that injury was certain to result, that failure may, but need not, support an inference that the employer specifically intended to produce an injury. That is, even if a plaintiff proves deliberation and certainty of injury, the jury can, nevertheless, return a defense verdict because the requisite specific intent is only one of several permissible inferences the jury can draw. Id.
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