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Parret v. UNICCO Service Co.6/28/2005
en the injury is a result of actions the employer knew were 'substantially certain' to cause injury. About a dozen states now follow this or a similar rule." 6 Larson, at § 103.03 n.1.
The first court to reject the "specific intent" standard in workers' compensation observed that it originated from very early workers' compensation decisions in Washington and Oregon which defined employer intent in the same terms applied to murder statutes. See Mandolidis v. Elkins Indus. Inc., 246 S.E.2d 907, 912-913 (W. Va. 1978). That court found "no adequate justification for adhering to the construction of a statute which is not only erroneous but which works an injustice on persons injured as a result of conduct which is so likely to produce injury or death that its performance, under all circumstances, could perhaps warrant criminal liability." Id. at 913. Since that time, "both courts and legislatures in a fair number of other jurisdictions have rejected the proposition that actual intent to harm is required for an employer's conduct to be actionable in tort and not protected by the exclusivity provisions of workers' compensation." Woodson v. Rowland, 407 S.E.2d 222, 230 (N.C. 1991). Essential to the determination of which standard will be applied in Oklahoma, however, is an understanding of the concept of "intent" in tort law and its relationship to other standards of conduct.
TORT LIABILITY CONTINUUM
In Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 362, this Court explained that the common law divides "actionable tortious conduct into (1) negligence, and (2) willful acts that result in intended or unintended harm." In the lower tier of tortious conduct lie three levels of negligence. Id. These are defined by statute in Oklahoma as slight negligence, ordinary negligence, and gross negligence. See Okla. Stat. tit. 25, §§ 5 & 6 (2001). In the higher tier lie two distinct levels: (1) wilful and wanton misconduct and (2) intentional misconduct. Id. at 362-363.
The level termed "wilful and wanton" misconduct, according to Professor Prosser, occupies "a penumbra of what has been called 'quasi intent'" lying between gross negligence and intentional conduct. William L. Prosser, Handbook of the Law of Torts §34, at 184 (4th ed. 1971). As Graham explained:
he intent in wilful and wanton misconduct is not an intent to cause the injury; it is an intent to do an act - or the failure to do an act - in reckless disregard of the consequences and under such circumstances that a reasonable man would know, or have reason to know, that such conduct would be likely to result in substantial harm to another.
Graham, 847 P.2d at 362. Graham noted that " hile 'ordinary' and 'gross' negligence differ in degree, 'negligence' and 'willful and wanton misconduct' differ in kind. Id. Thus, comparative fault in Oklahoma remains confined to negligence and not to willful and wanton misconduct or to intentional misconduct. Id. at 363 (" hile ordinary negligence of the plaintiff may be used as a defense against gross negligence, it may not be considered as a defense against any form of conduct found to be willful and wanton or intentional.").
The Oklahoma Uniform Jury Instruction, which was derived from the Graham decision, explains:
The conduct of [Defendant] was willful and wanton if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be willful and wanton, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to anot
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