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Pizza Hut of America Inc. v. Keefe6/30/1995
EN BANC
The respondents Ray and Paula Keefe brought this action against Pizza Hut of America, Inc., Orson Thomas and Ronald Pulda (collectively "petitioners" or "Pizza Hut"), seeking damages for the wrongful death of their child, Shanae Keefe. The trial court ruled that the damage claims were barred by the exclusive remedy provision of the Colorado Workers' Compensation Act, section 8-41-102, 3B C.R.S. (1994 Supp.) (the "Act"). The court of appeals held that the exclusive remedy provision did not apply to the wrongful death claim because the wrongful death of the child was not "for and on account of" the personal injury of the employee, and the judgment was reversed and cause remanded with directions.
We granted certiorari to determine whether the exclusive remedy provision of the Act bars a tort claim against an employer for prenatal injury occurring in the workplace. Because we find that a non-employee child who suffered prenatal injuries as the result of the negligence of the mother's employer is not limited to remedies available under our workers' compensation law, we affirm the judgment of the court of appeals.
I
Paula Keefe was employed by Pizza Hut from August 1990 to March 1991 as an assistant manager. Orson Thomas and Ronald Pulda were Paula Keefe's supervisors. Paula Keefe learned she was pregnant in August 1990 and in October 1990 she began suffering medical complications related to her pregnancy. In response to these complications, her treating physician imposed a series of work restrictions, limiting her hours of work and the types of tasks she was allowed to perform. Despite those and other medical precautions, her daughter Shanae Keefe, was born three months prematurely and died ten days later of medical complications arising from her premature birth. The Keefes claim that Pizza Hut coerced Paula to work hours and perform tasks in violation of her medical work restrictions, resulting in Shanae's premature birth and subsequent death.
On April 18, 1991, respondents brought a wrongful death action against Pizza Hut, Orson Thomas and Ronald Pulda in the District Court for the City and County of Denver under section 13-21-202, 6A C.R.S. (1987). In their complaint respondents alleged that Pizza Hut coerced Paula to perform her normal work despite knowing about her medical restrictions. Respondents claimed damages for the premature birth and subsequent death of their child. In addition, respondents sought personal damages for emotional distress under an outrageous conduct theory. The complaint alleged that the mother sustained "bodily injury of a severe and permanent nature" because of the employer's wrongful conduct.
Pizza Hut filed a motion for summary judgment claiming that the Keefes' wrongful death action was barred by the exclusivity provisions of the Act. The trial court awarded summary judgment to Pizza Hut on all counts, concluding that Pizza Hut was immune from liability under the Act.
The court of appeals reversed the judgment of the trial court in Keefe v. Pizza Hut of America, Inc., 868 P.2d 1092 (Colo. App. 1993) (not selected for publication), and remanded the case to the trial court with directions. The court of appeals found that the workers' compensation statute by its terms did not operate to bar a tort claim against an employer for the wrongful death of an employee's child. The court of appeals reasoned that "section 8-41-102 would not bar a claim against an employer by an employee's child for injuries sustained while visiting the employee at the work place because there would be no injury to the employee." Id. sl
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