Work Accidents and the Marek Decision – When Can Employees Sue Their Employers For Personal Injuries?
In its recent decision in Marek v. Hecla, Limited, the Idaho Supreme affirmed summary judgment in favor of the mine/employer and dismissed a wrongful death claim arising from the collapse of a portion of the Lucky Friday Mine in north Idaho. The collapse was investigated by the U.S. Mine Safety & Health Administration which found that the collapse occurred because of Hecla’s removal of a waste pillar inside the mine. MSHA specifically found that Hecla’s conduct in removing the pillar constituted more than ordinary negligence. Based on these findings, MSHA issued three citations to Hecla.
Idaho’s work comp statutes were the focus of the decision. Idaho Code 72-209(1) generally provides that an employer’s liability for injuries or death of its employees from work accidents is limited to work comp benefits, which are paid regardless of whether the accident was caused by the fault of the employee or his employer. However, subsection (3) of this statute provides an exception to the general rule: “. . . such exemptions from liability shall not apply in any case where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer or its . . . employees . . . .” Whenever these elements are met the injured employee or the family of the deceased employee can recover both work comp benefits and the more comprehensive damages that can be awarded in a civil lawsuit for personal injury or wrongful death. For example, monetary damages for pain and suffering, emotional distress and loss of enjoyment of life can be awarded in a personal injury suit and monetary damages for loss of the decedent’s care, comfort and society can be awarded in a wrongful death action. Punitive damages may be awarded in both personal injury and wrongful death suits. None of those can be recovered under the work comp statutes.
The Marek decision is significant in that it is the first time that the Court addressed all of the key language of the exception, i.e., what constitutes “willful or unprovoked physical aggression of the employer.” Such is surprising given Idaho Code 72-209 was enacted 45 years ago in 1971.
The Supreme Court held that the district court correctly determined that the heirs of the deceased employee could not proceed with their claims against their employer because they could not satisfy the elements of the exception.
The majority of the Court, consisting of 3 of the 5 Justices, held that an employee could satisfy the requirements of the exception in two ways: either prove “willful physical aggression” or prove “unprovoked physical aggression.”
It further explained that “an act of ‘willful physical aggression’ is one where there is evidence that the employer (1) committed an offensive action or hostile attack (2) aimed at the bodily integrity of the employee with (3) a willful, i.e., specific, intent to injure the employee.”
In contrast, under the unprovoked standard, the employee need not show that the employer had a specific intent or desire to harm a specific employee. Rather, he must only show the employer actually knew or consciously disregarded knowledge that employee injury would result from the employer’s action. In other words, “an act of ‘unprovoked physical aggression’ is one where the employer (1) committed an offensive action or hostile attack (2) aimed at the bodily integrity of the employee with (3) an unprovoked, i.e., general, intent to injure an employee.”
The Court held that the heirs had not satisfied either alternative requirement. In so ruling the Supreme Court rejected the argument made of behalf of the heirs that the Court’s earlier decision in Dominguez v. Evergreen Resources, a case successfully prosecuted by this firm where the Court affirmed a multimillion dollar judgment for the injured employee against his employer, stands for the proposition that recklessly directing an employee to work in a highly dangerous and unsafe environment is tantamount to willful or unprovoked physical aggression. The Marek Court also rejected the argument that the elements for the exception are satisfied where the employer engages in conduct that the employer knows or is substantially certain will result in injury to an employee. The Court emphasized that the heirs did not contend and there was no proof that Hecla specifically intended to injure Mr. Marek. Furthermore, there was no allegation or supporting evidence that Hecla had actual knowledge that the specific section of the mine would collapse when Mr. Marek performed his work assignment.
The two Justices who signed off on a concurring opinion indicated that while they agreed with the majority’s decision to affirm the summary judgment in favor of Hecla, they disagreed with the majority’s explanation of the meaning of “unprovoked physical aggression.” It appears that these two Justices were concerned that the majority’s alternative requirements would allow recoveries to employees who are injured by their employer after provoking the employer to engage in willful physical aggression against the employee. They were of the opinion that the phrase “willful or unprovoked physical aggression” was ambiguous and thought that the statute should be interpreted as essentially requiring the employee to prove that he was injured as a result of willful and unprovoked physical aggression by the employer despite the Legislature using the disjunctive “or” between the words “willfull” and “unprovoked.” The majority, in contrast, had followed the traditional approach taken by courts, and as applied in this case, the Legislature’s use of “or” instead of “and” between “willful” and “unprovoked” clearly indicated that it intended the meaning of the words “willful” and “unprovoked” to be distinct from one another.
The take away from Marek is that civil damages, in addition to work comp benefits, are available to an injured employee or the family of a employee killed while working only when the employer intended to injure the employee or had actual knowledge that employee injury would in fact occur while employees engaged in their work activities. Gross negligence and reckless misconduct are not sufficient to deprive the employer from the general exemption from civil suit damages. Of course, the Legislature is empowered to change the statute if it believes that employees should have additional grounds to sue their employers for injuries resulting from highly dangerous work environments.
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