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Dominguez v. Perovich Properties3/30/2005
ted safety measures, complete lack of worker training or preparation, and outright denial of assistance to a worker in a terrifying situation." Morales, 2004-NMCA-098, 10. After discussing Delgado, we analyzed the federal district court decision in Cordova I, which arose in New Mexico, and which held against a worker seeking tort damages. Morales, 2004-NMCA-098, 11; see Cordova I, 273 F. Supp. 2d at 1220. The Tenth Circuit's affirmance in Cordova II of the district court's decision, which we discuss later in this opinion, had not yet occurred at the time Morales was decided. See Cordova II, 2004 WL 2307344 (filed Oct. 14, 2004); Morales, 2004-NMCA-098 (filed June 10, 2004). The Court in Morales set out the facts in Cordova I: "the worker's hand was caught in an auger when another worker began to operate the auger." Morales, 2004-NMCA-098, 11. The worker alleged several intentional acts and omissions of the employer, including "the failure to provide adequate training and supervision, the failure to provide a safety guard device, and the assignment of the [worker] to a job outside of his temporary employment contract." Id. In addition, the Court in Morales discussed a Tenth Circuit case that affirmed a summary judgment against a worker who relied on Delgado when the worker was injured after a heavy box fell on his back. Morales, 2004-NMCA-098, 12; see Wells v. U.S. Foodservice, Inc., No. 03-2125, 2004 WL 848606, at *1-3 (unpublished) (10th Cir. Apr. 21, 2004) (reciting the Delgado test, and holding that, at best, even under the plaintiff's theory of the employer's wilful act or omission in failing to provide a safety device required under Department of Transportation Regulations, the employer's conduct was negligent and not intentional).
The Court in Morales concentrated on the procedural and evidentiary requirements a plaintiff must meet in order to overcome a motion to dismiss or for summary judgment. The Court stated: " o as not to eviscerate the essential provisions of the Act, we hold that plaintiffs must plead or present evidence that the employer met each of the three Delgado elements through actions that exemplify a comparable degree of egregiousness as the employer in Delgado in order to survive a pre-trial dispositive motion." Morales, 2004-NMCA-098, 14. Further, based on a balancing of competing social and personal interests, we concluded that it was "appropriate for a district court to grant summary judgment to an employer when a worker who pursues a tort claim under Delgado cannot demonstrate wilful conduct that approximates the employer's conduct in Delgado under the three-prong test." Id. 17. We note that our Supreme Court denied certiorari in Morales. See Morales, 2004-NMCERT-008.
3. Cordova I and Cordova II
As briefly indicated earlier in this opinion in our discussion of Morales, the plaintiff in the Cordova decisions was injured while placing his arm in a grain auger. Cordova II, 2004 WL 2307344, at *1. The plaintiff was a temporary employee working under a staffing agency contract pursuant to which the employee was supposed to perform simple manual labor and not operate machinery or vehicles. Id. Despite this, the plaintiff "was instructed to service a certain truck and then move it to be loaded with grain." Id. The plaintiff drove the truck to a barn for loading, and once out of the truck, he saw a co-employee lubricating a grain auger chain drive. Id. At some point the plaintiff walked to an area close by, apparently one at which he lost sight of the co-employee. Id. He noticed some grain and a piece of twine inside the chute of the auger and he reached in to remove them, unaware that the co-employee was no longer lubricating the chain drive and was
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