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Davis v. United States Employers Council Inc.3/19/1997
e, assessing the application of ORS 656.156(2) to closely analogous circumstances, can only be regarded as deliberate.
The necessary consequence of the Kilminster/ Lusk formulation is that, where a plaintiff acknowledges that he or she cannot prove that a defendant employer "wished to injure" the employee or someone similarly situated, ORS 656.156(2) is not available and the plaintiff's claim is barred as a matter of law by ORS 656.018. That is so, regardless of whether the employer acted in a calculated fashion to maximize its profits in utter disregard of the certainty of injury to its employees.
The Dissent asserts that Kilminster does not mean what it says--and contends, particularly, that Kilminster is more restrictive than Lusk. Significantly, the Dissent does not argue that Lusk was wrongly decided. In particular, it does not contend that Lusk misconstrued or misapplied Supreme Court authority--the same authority that underlies Kilminster. Rather, the Dissent asserts that Kilminster represented not only a repudiation of Lusk, but also, implicitly, a retrenchment from the 80-plus years of Supreme Court
precedent on which Lusk relied. In the Dissent's view, the Supreme Court achieved that repudiation sub silentio through the curious--indeed, ironic--device of employing the same formulation Lusk announced.
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, 919 P.2d 474 (emphasis supplied; emphasis in original deleted).
Thus, the court did not hold that 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.
In Kilminster, as in Lusk--and in this case--the "wish to injure" is the sine qua non of "deliberate intention." We agree with the Dissent that this case and Kilminster (and Lusk ) are legally indistinguishable. See 147 Or.App. at 180, 934 P.2d at 1151.
The conclusive point, however, is that this case is factually distinguishable from the other two. Only in this case has plaintiff stipulated that he cannot prove what he must prove, that his employer withheld safety measures because it wished to injure him. But for that admission, this case would be materially indistinguishable from Lusk and Kilminster and remand would be required.
Finally, the Dissent erec
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