Birklid v. Boeing Co.

• Decision Date: 26 October 1995
• Docket Number: No. 62530-1,62530-1
• Citation: 904 P.2d 278,127 Wn.2d 853
• Court: Washington Supreme Court
• Parties: , 64 USLW 2352, 11 IER Cases 97 Theresa BIRKLID; Von Bui; Shane Collins; Wilma Mae Ebhard; Karin Christel Fleckenstein; Joseph Gonzales; Heidi Marie Guevara; Deanna Henry; Joann Marie Johnson; Beverly Jean McCormick; Ronald Hugh Palmer; Bonnie Faye Schrum; Kathleen A. Torres; Rory Alan Wintersteen, Appellants, v. The BOEING COMPANY, Respondent.

Page 853

127 Wn.2d 853

904 P.2d 278, 64 USLW 2352, 11 IER Cases 97

Theresa BIRKLID; Von Bui; Shane Collins; Wilma Mae Ebhard; Karin Christel Fleckenstein; Joseph Gonzales Heidi Marie Guevara; Deanna Henry; Joann Marie Johnson Beverly Jean McCormick; Ronald Hugh Palmer; Bonnie Faye Schrum; Kathleen A. Torres; Rory Alan Wintersteen, Appellants, v. The BOEING COMPANY, Respondent.

No. 62530-1.

Supreme Court of Washington En Banc.

Oct. 26, 1995.

Annan & Fairley, John D. Fairley, Spokane, amicus curiae for Washington Self-Insurers Association.

Perkins, Coie & Stone, V.L. Woolston, Seattle, for appellee.

Schroeter, Goldmark & Bender, James Hailey, Sidney Royer, Seattle, Casey, Gordon Davis, Randolph Gordon, Bellevue, for appellants.

TALMADGE, Justice.

While Washington law has recognized that industrial insurance is the exclusive remedy of the employee injured in the course of employment and barred lawsuits by employees against employers, by its enactment of the Industrial Insurance Act (IIA), the Legislature also established an exception to the rule of exclusivity for circumstances in which an employer deliberately injures an employee. In those circumstances, an employee retains the right to sue the employer.

In a case involving a conflict between the exclusivity provision of Washington's Industrial Insurance Act, RCW 51.04.010, and the deliberate intent to injure exception found in RCW 51.24.020, the United States Court of Appeals for the Ninth Circuit certified the following two questions to this court:

1. Whether the evidence produced by the plaintiffs in their response to the motion for summary judgment could, under Washington law, justify a jury in finding the "deliberate intention" exception specified in RCW 51.24.020, and, if so, the requirements of Washington law to permit such a finding?

2. Whether the evidence produced by the plaintiffs in their response to motion for summary judgment could, under Washington law, justify a finding of "outrageous conduct" that would avoid the preclusion of RCW 51.04.010, and, if so, the requirements of Washington law to permit such a finding?

We hold under the circumstances of this case that the plaintiffs have established a claim for deliberate intention to injure under RCW 51.24.020, and have stated a limited cause of action for the tort of outrage.

FACTS

Boeing began employing a new woven fiberglass cloth impregnated with phenol-formaldehyde resin in 1987 to meet FAA regulations on flammability. This material was used to make highly contoured interior parts of airplanes. Before it began using the material in production, Boeing did preproduction testing on it at its Auburn fabrication facility, Building 17-02. In February 1987, a Boeing general supervisor, Dan Johnson, wrote:

During MR & D layup of phenolic pre-preg, obnoxious odors were present. Employees complained of dizziness, dryness in nose and throat, burning eyes, and upset stomach. We anticipate this problem to increase as temperatures rise and production increases.

Clerk's Papers at 115. Johnson requested improved ventilation, but Boeing management denied the request at that time, apparently for economic reasons:

The odor level of the phenolic pre-pregs relative to other materials currently used in Shop A-3210 [Building 17-02] does not warrant expenditure of funds at this time.

Clerk's Papers at 115. The air in the production facility was "white with dust." Clerk's Papers at 118.

As Boeing's supervisor predicted, when full production began, workers experienced dermatitis, rashes, nausea, headaches, and dizziness. Workers passed out on the job. Mr. Johnson said he knew these complaints were reactions to working with the phenolic material.

Boeing contended that the workers were not exposed to toxic chemicals beyond safe levels. Answer of Def. The Boeing Company at 3. The plaintiffs note, however, that regardless of so-called "safe" levels of exposure, Boeing anticipated that those levels would make its workers sick, and, in fact, the workers became sick. Reply Br. of Appellants at 2 n. 2.

In addition to injury from exposure to toxic substances, the workers alleged misconduct constituting the tort of outrage by Boeing, including removal of labels on the chemicals and denial of access to Material Safety Data Sheets, ¹ harassment of employees who requested protective equipment or availed themselves of medical treatment, ² alteration of workplace conditions during government safety tests to manipulate test results and disguise the harm of the chemicals, and experimental exposure of workers to toxic chemicals without their informed consent. ³ The plaintiffs, fourteen workers, at the Auburn facility, filed a complaint in King County Superior Court in 1991 alleging personal injuries and disabilities resulting from the deliberate and outrageous actions of their employer (Boeing), and the Ferro Company, the manufacturer of the phenolic resin, including Boeing's intentional, knowing, and repeated injurious exposure of workers to known toxic chemicals, including the phenolic resin. ⁴ The workers also alleged Boeing was liable for the tort of outrage and intentional infliction of emotional distress. Ferro subsequently settled with the plaintiffs and was dismissed.

Boeing removed the case to the United States District Court for the Western District of Washington, asserting federal jurisdiction because the complaint contained allegations under federal discrimination statutes and the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq. Boeing also alleged federal preemption under the Labor-Management Act, 29 U.S.C. §§ 157 et seq. The state law claims were cognizable in federal court under pendent jurisdiction.

Boeing moved for summary judgment. The district court determined the allegations in the plaintiffs' affidavits were "insufficient to create a prima facie case of specific intent to injure" under Washington law, and ordered dismissal of the plaintiffs' claims against Boeing. Clerk's Papers at 142. On appeal, the Court of Appeals for the Ninth Circuit heard oral argument on October 6, 1994, and by its Order of February 6, 1995, certified the two questions of law to this court.

ANALYSIS

A. Deliberate Intention to Injure Under RCW 51.24.020

Washington's IIA was the product of a grand compromise in 1911. Injured workers were given a swift, no-fault compensation system for injuries on the job. Employers were given immunity from civil suits by workers. ⁵ Stertz v. Industrial Ins. Comm'n, 91 Wash. 588, 590-91, 158 P. 256 (1916).

At the same time, however, employers who deliberately injured their employees would not enjoy the immunity from suits. ⁶ This policy has sound roots. Employees' remedies for deliberate injury by employers should not be limited by the IIA. Employers who engage in such egregious conduct should not burden and compromise the industrial insurance risk pool. RCW 51.16.035 (rating system designed to stimulate and encourage accident prevention).

This court has been observant from the outset of the legislative policy mandating employer immunity in cases where an employer's conduct does not rise to the level of a deliberate intent to injure. Thus, our cases have narrowly interpreted RCW 51.24.020. We first interpreted the meaning of "deliberate intention" in Delthony v. Standard Furniture Co., 119 Wash. 298, 205 P. 379 (1922). In Delthony, an exploding boiler injured the plaintiff. He received compensation under the IIA, but then sued the employer on the ground that the employer deliberately intended to injure him by allowing a dangerous condition to exist. We held there was no evidence to sustain a claim of deliberate intention to injure, and that mere negligence was not enough under RCW 51.24.020. Delthony, 119 Wash. at 299-300, 205 P. 379. We adopted the language of an Oregon case defining a similarly-worded statute:

We think by the words "deliberate intention to produce the injury" that the lawmakers meant to imply that the employer must have determined to injure an employee and used some means appropriate to that end; that there must be a specific intent, and not merely carelessness or negligence, however gross.

Delthony, 119 Wash. at 300, 205 P. 379 (citing Jenkins v. Carman Mfg. Co., 79 Or. 448, 155 P. 703 (1916)).

Washington courts have consistently interpreted the Delthony language to require a specific intent to injure. Nielson v. Wolfkill Corp., 47 Wash.App. 352, 355, 734 P.2d 961, review denied, 109 Wash.2d 1008 (1987). Neither gross negligence nor failure to observe safety procedures and laws governing safety constitutes a specific intent to injure. Biggs v. Donovan-Corkery Logging Co., 185 Wash. 284, 54 P.2d 235 (1936); Peterick v. State, 22 Wash.App. 163, 189, 589 P.2d 250 (1970), overruled on other grounds by Stenberg v. Pacific Power & Light Co., 104 Wash.2d 710, 709 P.2d 793 (1985). Nor is an act that has a substantial certainty of producing injury sufficient to show deliberate intention. Higley v. Weyerhaeuser Co., 13 Wash.App. 269, 271-72, 534 P.2d 596 (1975). In Higley, a saw operator was injured when a piece of a saw's rotating cutterhead broke loose, breaking through a Plexiglass shield and driving a piece of the shield into Higley's right eye. Higley sued, alleging negligence so gross as to constitute an intentional act. He submitted affidavits attesting to the frequency of breaking and flying cutterheads and the inadequacy of the Plexiglass shielding. The Court of Appeals, citing Winterroth v. Meats, Inc., 10 Wash.App. 7, 516 P.2d 522 (1973), held that Higley's failure to show the employer's specific intent to injure him was fatal to his claim. Higley, 13 Wash.App. at 271, 534 P.2d 596.

In Foster v. Allsop Automatic, Inc., 86 Wash.2d 579, 547 P.2d 856 (1976), a worker injured his hand in a press. Supervisors had knowingly allowed the disabling of a safety device that required both hands to be free of the press during operation. The plaintiff urged...