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Dominguez v. Perovich Properties3/30/2005
he Act, when: (1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury.
Id. 26. As to the first prong, the Court stated that "we determine whether a reasonable person would expect the injury suffered by the worker to flow from the intentional act or omission." Id. 27. "The second prong requires an examination of the subjective state of mind of the worker or employer." Id. 28. Explaining this significant aspect of the test in more detail, the Court stated:
If the worker or employer decided to engage in the act or omission without ever considering its consequences, this prong is satisfied. If, on the other hand, the worker or employer did consider the consequences of the act or omission, this prong will be satisfied only when the worker or employer expected the injury to occur. It will not be enough, for example, to prove that the worker or employer considered the consequences and negligently failed to expect the worker's injury to be among them.
Id. The meaning of an expected injury, as used in the first two prongs of the Delgado test, is clarified by the Court's discussion of the difference between an accidental injury and a virtually certain injury. Id. 13-15, 18. The Court made it clear that an accidental injury is covered by the Act, and includes "an unlooked-for mishap or some untoward event that is not expected or designed." Id. 14 (internal quotation marks and citation omitted). On the other hand, when "an employer . . . knows his acts will cause certain harm or death to an employee," or when the employer "disregard the consequences" of his acts, then the employer may be sued in tort. Id. 18, 26 (internal quotation marks omitted). Finally, the third prong requires proximate cause. Id. 29. The Court's ultimate justification for rejecting the actual-intent-to-injure test was the fairness in treating workers and employers equally in regard to whether their intentional conduct should deny them benefits and protections of the Act. Id. 12-24, 31.
2. Morales
Morales involved two cases filed by two workers, Morales and Fernandez, against two separate employers. Morales was fixing a pump that carried a chemical from a storage tank to a mix head. 2004-NMCA-098, 2. Some of the chemical was released, causing Morales's protective hood to pop up, ultimately causing Morales personal injury . Id. Morales sought damages, alleging that his employer "wilfully or intentionally ordered him to fix the pump even though knew that would suffer grave injuries[.]" Id. 3 (internal quotation marks omitted). Fernandez was injured while working on a scaffolding approximately sixteen feet above ground, when a metal sheet slipped from the hands of another worker working above Fernandez and hit Fernandez on the side of the head causing him to fall and sustain injuries. Id. 4. Fernandez sought damages, alleging that the employer had "intentionally failed to provide him with adequate safety equipment." Id. 5.
In Morales, this Court characterized the facts of Delgado as "helpful in illustrating what type of employer conduct the Court [in Delgado] sought to address in broadening the non-accidental exception" in the Act. Morales, 2004-NMCA-098, 9. We stated that the Delgado decision stemmed from the following "egregious employer conduct: a combination of deadly conditions, profit-motivated disregard for easily implemen
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