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Gunderson v. Harrington9/6/2001
disregarded or where there has been fraud to justify piercing the corporate veil. In this case, those elements are not present. Accordingly, Harrington Orthodontics must be considered the employer for the purposes of the WCA, just as it is for all other purposes.
If Harrington Orthodontics is the employer, Harrington should be considered Gunderson's co-employee under the WCA. Importantly, the WCA does not shield co employees from liability for intentional torts. A co-employee is not liable for personal injury of another employee unless the injury was a result of gross negligence or was intentionally inflicted by the co-employee. Minn. Stat. § 176.061, subd. 5(c) (2000). Gunderson's injuries did not happen by accident. Harrington intentionally inflicted them when he hit Gunderson on the back of the head.
In addition to Minn. Stat. § 176.061, subd. 5(c), our case law indicates that the WCA does not shield individuals from liability for intentional torts. The majority concludes that the intentional tort exception to the WCA does not apply. It should be noted that the majority labels this exception the "intentional injury exception" because the "well-settled standard 'conscious and deliberate intent to inflict injury.'" This court has in fact repeatedly referred to this exception as the "intentional tort" exception even in those cases cited by the majority. See Kaess, 403 N.W.2d at 644; Hildebrandt, 364 N.W.2d at 394. The majority cites Breimhorst for the premise that there must be an intent to inflict injury for the intentional tort exception to apply. The very language cited by the majority demonstrates that Breimhorst is not analogous to the case at hand. Breimhorst involved a spring gun that injured an employee of a restaurant. The court concluded that "intent may not be inferred from mere negligence, though it be gross." Breimhorst, 227 Minn. at 426, 35 N.W.2d at 730. Here, Harrington's intent to hit Gunderson on the head is clear and an inference is not required. No matter how the facts are viewed, Harrington's conduct cannot be viewed as negligence. There is no question that the case at hand involves an intentional tort.
The majority also cites Hildebrandt and Kaess for the proposition that in order for the intentional tort exception to apply, there must be a "conscious and deliberate intent to inflict injury ." Both cases involved injuries arising from exposure to toxic materials. The plaintiffs alleged that the course of conduct was intentional and injury was foreseeable. Neither case involved an intentional tort—assault—like we have here. Boek v. Wong Hing did involve an intentional assault. 180 Minn. 470, 231 N.W. 233 (1930). There, we held that just as an employee can maintain a claim against a third party for an intentional assault, so should an employee be able to maintain such an action against an employer for an intentional assault. 180 Minn. at 471-72, 231 N.W. at 234. "An employer who intentionally and maliciously inflicts bodily injuries on his servant should occupy no better position than would a third party not under a Compensation Act * * *." Id.
Summary judgment is only appropriate where a review of the evidence shows that there is no genuine issue as to material fact and that either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. On review of summary judgment, the court reviews the evidence in the light most favorable to the party against whom the summary judgment was rendered. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Even if the majority is correct and intent to injure is required for the intentional tort exception to apply, whether Harrington intended to cause injury when he assaulted Gunderson at least presents
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