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Dominguez v. Perovich Properties3/30/2005
jury." Id.
The Present Case
In the present case, as in Morales and the Cordova cases, Plaintiff has failed to measure Employer's conduct up to the employer's conduct in Delgado. Having Plaintiff perform the routine task he was asked to perform, a task with which he was familiar and he had performed in the past, was hardly the equivalent of sending Plaintiff into certain injury. Even with the absence of safety measures as Plaintiff asserts, Plaintiff shows no inherent probability of injury, nor modicum of intent on Employer's part to send Plaintiff into harm's way. Further, while it may be foreseeable that a co-employee might negligently start equipment operation, such foreseeability does not rise to the level contemplated under the first prong of the Delgado test. Still further, while Employer may have intentionally failed to provide safety devices it knew or is claimed to have known that it was required to provide, the disregard does not reach the standard contemplated under the second prong of the Delgado test. The general failure to provide safety devices was not in and of itself a probable injury for Plaintiff on the occasion in question, notwithstanding the fact that the reason for safety devices is to assist in, and to lower the chances of, injury or death during maintenance of equipment. Finally, Plaintiff has not shown proximate causation between Employer's negligent management in regard to safety precautions and an intentionally caused injury.
We believe that the Supreme Court in Delgado intended more than the disregard of preventative safety devices as occurred in the present case. The Act explicitly provides for enhanced compensation for an employer's failure to provide safety devices. ยง 52-1-10(B); see also Cordova I, 273 F. Supp. 2d at 1220 n.5 (stating that the unambiguous language of Section 52-1-10(B) "shows a legislative intent that the apply to worker injuries caused by an employer's failure to supply reasonable safety devices"). It is appalling that some employers disregard safety requirements that are in place to help prevent injury and death in connection with the performance of an employee's work. Nonetheless, such circumstances do not permit a conclusion that the employer has specifically and wilfully caused the employee to enter harm's way, facing virtually certain serious injury or death, as contemplated under Delgado. The critical measure, as reflected in the Morales and Cordova decisions, is whether the employer has, in a specific dangerous circumstance, required the employee to perform a task where the employer is or should clearly be aware that there is a substantial likelihood the employee will suffer injury or death by performing the task. The possibility, as in the present case, that an accident might occur because of an unexpected careless act of a co-employee does not meet the Delgado standard.
Contentions Not Reached
Employer raises an alternative argument to persuade us to affirm. It asserts that Delgado should not be applied retroactively in this case to permit Plaintiff to pursue a cause of action. This assertion is based on the circumstance that Plaintiff's accident occurred in 1999, and Delgado was decided in 2001. The primary bone of contention between Plaintiff and Employer appears to be whether Delgado creates a new cause of action. In his brief in chief, Plaintiff states that Delgado "merely relaxed the standards and proof required by an employee to show 'intent' to cause the injury" and did not create a new cause of action. Plaintiff filed no reply brief addressing Employer's various arguments, including prejudice, inequity, as to why Delgado should not be applied retroactively to permit Plaintiff's claim
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