Cunningham v. Aluminum Co. of America, Inc., 1-680A164

Citation417 N.E.2d 1186
Decision Date31 March 1981
Docket NumberNo. 1-680A164,1-680A164
PartiesElwood E. CUNNINGHAM, Maria Cunningham, Appellants (Plaintiffs Below), v. ALUMINUM COMPANY OF AMERICA, INC.; The Dover Tank and Plate Company; Robinson Industries, Inc.; The Dayton Casting Company; Barmet of Indiana, Inc., Appellees (Defendants Below).
CourtCourt of Appeals of Indiana

Daniel J. McGinn, Evansville, for appellants-plaintiffs.

John D. Clouse, Michael C. Keating, and Laurie A. Baiden, Evansville, Linley E. Pearson, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for appellees-defendants.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Appellants Elwood E. Cunningham (Cunningham) and Marie Cunningham brought this action for personal injury and loss of services against Cunningham's employer, Barmet of Indiana, Inc. (Barmet) and other Barmet filed a motion to dismiss for failure to state a claim upon which relief could be granted, and the trial court dismissed that portion of the complaint seeking relief against Barmet. The State successfully moved to dismiss the portion of the complaint seeking the declaratory judgment. Following the expiration of sufficient time during which Cunningham could have pleaded over, the trial court entered final judgment on these dismissals and Cunningham appeals.

                defendants not parties to this appeal.  1 Cunningham also sought a declaratory judgment that portions of Indiana's Workmen's Compensation Act are unconstitutional.  In accordance with Ind.Code 34-4-10-11, the Attorney General of the State of Indiana was served and is an appellee herein
                

We affirm.

STATEMENT OF THE FACTS

Since we are reviewing the dismissal of portions of Cunningham's complaint for failure to state a claim upon which relief could be granted, our mode of review obliges us to accept as true all facts alleged in the complaint, and to draw every reasonable inference in Cunningham's favor. Morris v. City of Kokomo, (1978) Ind.App., 381 N.E.2d 510; van Bronckhorst v. Taube, (1976) 168 Ind.App. 132, 341 N.E.2d 791.

The facts alleged in the complaint relevant to the issues raised in this appeal are the following. Cunningham was employed by Barmet in its aluminum reclamation plant near Rockport, in Spencer County, and was working within the scope of his employment when the event occasioning his injuries occurred. Cunningham worked in close proximity to blast furnaces containing molten aluminum. Large molds, into which molten aluminum is poured for cooling, are located nearby.

On November 10, 1977, Cunningham was attempting to unplug an opening in one of the furnaces. The air inside the plant was dense with smoke and other pollutants, restricting visibility to six to twelve inches. An amount of molten aluminum jetted out of the furnace on which Cunningham was working and splashed on him; he recoiled in retreat. As he withdrew, he lost his footing due to ruts and grooves in the floor which were caused by discharges of a salt compound from the furnaces. Cunningham fell into a vat of molten aluminum. Cunningham sustained first, second, and third degree burns over 40 percent of his body. He was scarred and permanently disfigured; his mobility was restricted. His medical expenses totalled some $9,000 as of the date of the complaint; further medical expenses are anticipated. He was unable to work for a period of time and anticipates future lost income attributable to these injuries.

ISSUES

We restate the issues raised by Cunningham as follows:

I. Whether an employee who is injured as a result of his employer's intentional, reckless, or negligent violation of safety statutes is precluded by the Workmen's Compensation Act from bringing a direct action against his employer for compensatory damages and for punitive damages; and

II. Whether Ind.Code 22-3-2-6 and Ind.Code 22-3-2-8 are unconstitutional in that these sections of the Workmen's Compensation Act assertedly violate Ind.Const. art. 1, § 23, and U.S.Const. amend. XIV, § 1.

DISCUSSION AND DECISION

Issue I. Exclusiveness of remedy

Cunningham maintains the position on appeal that he should be allowed to bring a direct action against his employer, Barmet, for compensatory and punitive damages since he has alleged he was injured as a "direct and proximate result of the intentional actions of his employer or as the direct and proximate result of the intentional violations of laws and safety rules and regulations of the State of Indiana by his employer." Cunningham contends that under Ind.Code 22-1-1-10, 2 Barmet was under a statutory duty to maintain a safe place of employment, and violated this duty. Cunningham has characterized the degree of Barmet's culpability in violating this duty, variously, as intentional, wanton and/or wilful, and negligent. Although his complaint alleges that Cunningham sustained injury as a proximate result of Barmet's alleged statutory violation, he argues in his appellate brief that Barmet inflicted upon him an intentional injury. He develops the argument that in order to be compensable under the Workmen's Compensation Act (Act), the injuries sustained must result from an accident arising out of and in the course of the worker's employment. He argues that the event occasioning his injury was not an accident, since injuries resulting from intentional violations of safety rules were to be expected from the standpoint of the employer. Since the remedies provided under the Act are exclusive only for compensable injuries, Cunningham concludes the Act does not foreclose his common law action against Barmet. Further, Cunningham contends, the remedial and humanitarian purposes of the Act are not served by barring his right to bring this action against his employer.

Barmet counters that the complaint, as to it, was properly dismissed since the "exclusive remedy provision" of the Act, Ind.Code 22-3-2-6, limits Cunningham's remedies to those provided by the Act, and prohibits this tort action.

We have carefully examined Cunningham's complaint, viewing it as we must in his favor, and find no facts whatever supportive of an inference that Barmet intentionally engaged in any conduct toward the end that Cunningham be injured. We do find the factual allegations sufficient to support an inference that Barmet may have intentionally maintained its plant in a condition violative of safety statutes, rules and regulations. We therefore consider whether such conduct on the part of the employer operates to remove Cunningham's injury from the class of injuries compensable under the Workmen's Compensation Act.

Ind.Code 22-3-2-2 considers as compensable "personal injury or death by accident arising out of and in the course of employment." There is no dispute as to whether Cunningham was working in the course of his employment at Barmet. Our analysis then commences with the consideration of whether the occurrence resulting in Cunningham's injury, as resulting from Barmet's deliberate violation of safety rules, regulations and statutes, was an "accident" within the purview of the Act.

Ind.Code 22-3-2-6, captioned "Exclusive remedies," states:

"The rights and remedies herein granted to an employee subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death."

As mentioned above, we cannot reasonably infer from Cunningham's allegations that Barmet engaged in any conduct with the intention that Cunningham be injured thereby. He has alleged only that Barmet deliberately maintained its plant in conditions violative of safety statutes, rules, and regulations. He argues that as such Barmet should have anticipated that he would be injured in the manner in which he was ultimately injured. We disagree.

Dean Prosser has stated, in discussing the concept of intent in tort law, the following:

"(T)he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a certainty."

Prosser, Law of Torts, 4th Ed. 1971, 32. See also 2A Larson's Workmen's Compensation Law § 68.13 (1976) and, particularly, those cases collected in note 11 thereto.

We consider Cunningham's injury to have resulted from an accident arising out of and in the course of his employment at Barmet. In Pearson v. Rogers Galvanizing Company, (1945) 115 Ind.App. 426, 59 N.E.2d 364, the plaintiff employee contended he had sustained injury proximately caused by unlawful acts and omissions on the part of his employer amounting to negligence and wanton and wilful conduct. He argued that his injuries did not result from an "accident" since the injuries could have been reasonably anticipated by the employer. The court rejected this contention, and held the employee's sole remedy was under the Workmen's Compensation Act. The court stated:

" 'The term "accident" as employed in the act has been defined by this court many times as meaning "an unlooked for mishap, an untoward event which is not expected or designed." ' American Maize Products Co. v. Nichiporchik (1940), 108 Ind.App. 502, 29 N.E.2d 801.

In determining whether the elements of expectation or design must be absent from the standpoint of the injured person or from that of his employer, or both, we have as our sole guide in this jurisdiction the case of Furst Kerber Cut Stone Co. v. Mayo (1925), 82...

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