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Davis v. United States Employers Council Inc.3/19/1997
ts, and pummels, a straw man:
"If the majority correctly reads that statement in Lusk to mean that an employer's conduct that is motivated by cost savings or other financial motives cannot also and simultaneously entail a specific intent to injure, then in my view, Lusk is wrong and is inconsistent with Kilminster. * * * I note that the majority's proposition would make proof of intent difficult or impossible in cases of murder for hire." 147 Or.App. at 183, 934 P.2d at 1153.
Nothing in this opinion or, indeed, in Lusk or Kilminster sanctions such a result. Indeed, they state the opposite. Clearly, a profit motive and a wish to injure can coexist--the two are not necessarily mutually exclusive--and, if they do, ORS 656.156 applies.
We fully appreciate that, in some cases, the "wish to injure" formulation may produce seemingly cold-blooded results. Nevertheless, that formulation is the product of the statute's language and of over 90 years of case law, including, most recently, Kilminster and Lusk. The choice of whether such calculated conduct should be shielded from the full force of tort law is ultimately a matter of policy. Statutory amendment is committed to the legislature, not to this court.
Given plaintiff's laudable candor, the application of the "wish to injure" formulation in this case is clear. Plaintiff acknowledges that he cannot prove that defendant refused to undertake safety measures because it wished to injure him. Consequently, the trial court correctly determined that plaintiff's action was barred by ORS 656.018.
Affirmed.
DEITS, Presiding Judge, Dissenting.
In this case, as in Kilminster v. Day Management Corp., 323 Or. 618, 919 P.2d 474 (1996), the plaintiffs' proffered allegations or evidence, if proven, would permit findings that the defendant employers created unduly dangerous work conditions or instrumentalities, failed to take available or required safety or curative measures, and compelled the injured employees and similarly situated persons to work under the conditions despite the employers' knowledge that injury or death was certain to result.
The Supreme Court held in Kilminster that those asserted facts gave rise to a permissible inference that the employer acted with a deliberate intention to injure and, therefore, gave rise to an actionable tort claim under ORS 656.156(2). After an exhaustive analysis of its earlier decisions construing and applying that statute, the court said:
"The meaning of the provision at issue in this case is clear from this court's prior interpretations. In order for a worker to show that an injury that occurred during the course and scope of the worker's employment 'result * * * from the deliberate intention of the employer * * * to produce' that injury, the worker must show that the employer determined to injure an employee, that is, had a specific intent to injure an employee; that the employer
acted on that intent; and that the worker was, in fact, injured as a result of the employer's actions." Id. at 631, 919 P.2d 474.
The court then proceeded to apply that legal standard to the plaintiff's allegations in Kilminster:
"In this case, plaintiff has alleged facts sufficient to meet the foregoing standard for deliberate intention to injure or kill. Plaintiff alleges that [the employer] DMC knew that decedent or someone who did the same work as decedent would be injured from a fall from the tower; that DMC decided to forego taking safety procedures, knowing that, by so doing, serious injury or death would result; and that DMC told decedent to climb the tower or lose his job .
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