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Davis v. United States Employers Council Inc.3/19/1997
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"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. * * * 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." Id. at 632-33, 919 P.2d 474. (Emphasis in original; citation omitted.)
In my view, this case does not differ from Kilminster in any Dispositionally significant way. The majority agrees "that this case and Kilminster * * * are legally indistinguishable," but asserts that the cases are "factually distinguishable" because, in this case, "plaintiff stipulated that he cannot prove" that defendant acted as it did "because it wished to injure him." 147 Or.App. at 177-178, 934 P.2d at 1149-1150 (emphasis in original). The majority rejects plaintiff's argument that that "stipulation" is not consequential because, plaintiff asserts, the test of liability under ORS 656.156(2) that Kilminster and
earlier Supreme Court opinions establish is whether the employer "specifically intended" the employee's injury or death, not whether it had the affirmative motive to produce injury that the majority understands the word "wished" to connote. I agree with plaintiff's argument, and I do not agree that the majority succeeds in drawing a tenable distinction between this case and Kilminster.
Contrary to its characterization, the majority's distinction between the two cases is not a factual one but, rather, rests on its understanding that an employer's "wish" to injure or kill is the "sina qua non " of the legal standard that Kilminster establishes or endorses as the test for liability under ORS 656.156(2). However, as shown by the passages that I have quoted from Kilminster, the word "wished" appears only once in the relevant portion of the Supreme Court's opinion and appears there seemingly as a random word choice; by contrast, the phrase "specific intent," along with the phrase "determined to injure" that the court expressly treated as synonymous with "specific intent," appear repeatedly in Kilminster and are expressly identified by the court as defining the showing that a plaintiff must make to establish a deliberate intention to injure within the meaning of the statute. Similarly, phrases such as "specific intent" and "determined to injure" also appear repeatedly--and the word "wished" does not appear--in the Supreme Court's earlier decisions construing the statute, which it discusses and quotes at length in Kilminster.
The words "wish" and "intend" have many possible meanings and, under some of the definitional variations, the two words are effectively synonymous. It is apparent that the majority does not read the words in that synonymous sense, or else it could not regard the absence of a potentially provable "wish" in this case and the potential presence of one in Kilminster to be the sole basis for opposite results in the two cases. It is equally apparent, however, that the court in Ki
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