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Davis v. United States Employers Council Inc.3/19/1997
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Under principles of stare decisis, Lusk controls unless intervening changes in the law, including decisions of the Supreme Court, repudiate or substantially call into question our analysis and holding. Kilminster was decided after Lusk. However, nothing in Kilminster alters our fidelity to Lusk.
In Kilminster, the court, after addressing the identical authority we discussed in Lusk, endorsed and reiterated
Lusk s operative principle: To invoke ORS 656.156(2), a plaintiff must prove that a defendant employer acted as it did "because it wished to injure or kill" the plaintiff. Kilminster, 323 Or. at 633, 919 P.2d 474 (emphasis supplied).
The circumstances in Kilminster closely parallel those in Lusk. The plaintiffs alleged that: (1) The decedent employee had frequently complained to the defendant employer about unsafe conditions and, particularly, the lack of safety equipment, in climbing a radio tower; (2) the defendant deliberately refused to undertake necessary safety measures, including providing legally required safety equipment; (3) the defendant knew that if it did not undertake the requisite safety measures, a worker would fall and suffer serious injury or death; and (4) the defendant ordered the decedent to climb the tower or lose his job . 323 Or. at 621-22, 919 P.2d 474. Thus, in Kilminster, as in Lusk, the plaintiffs alleged that the employer deliberately refused to undertake safety measures notwithstanding the certainty of serious injury or death.
Although Kilminster does not cite Lusk, substantial portions of Kilminster reproduce Lusk 's analysis verbatim, or virtually so. Compare, e.g., Kilminster, 323 Or. at 629-32, 919 P.2d 474 with Lusk, 97 Or.App. at 186-88, 775 P.2d 891. In particular, in Kilminster, as in Lusk, the court held that, to prove "deliberate intent," a plaintiff must show that the employer "wished to injure or kill" the employee and that, even if a plaintiff proves that the defendant employer acted deliberately, knowing that injury was certain to result, the jury need not infer "deliberate intention":
"Reading all the allegations together, in the light most favorable to plaintiff, a finder of fact reasonably could infer that DMC determined to injure an employee, that is, specifically intended 'to produce [decedent's] injury or death.' The underlying facts pleaded by plaintiff do not describe when or how DMC determined to injure decedent. However, a specific intent to produce an injury may be inferred from the circumstances. Taking all the allegations of the second claim
together, plaintiff alleges more than gross negligence, carelessness, recklessness, or conscious indifference to a substantial risk of injury . Plaintiff alleges that serious injury to or death of a worker was certain to occur, that DMC failed to take requisite safety precautions or buy requisite safety equipment, and that DMC instructed decedent to climb the tower while knowing that a worker who climbed the tower would fall and be hurt. 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 632-33(emphasis supplied; emphasis in original deleted; citation omitted).
Kilminster 's use of the same "wish to injure" formulation announced in Lusk was not casual or accidental. The use of identical languag
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