Ferris v. V.I. Indus. Gases, Inc.

• Decision Date: 22 April 1987
• Docket Number: Civil No. 1985/334
• Citation: 23 V.I. 183
• Parties: FITZROY FERRIS, Plaintiff v.V.I. INDUSTRIAL GASES, INC., Defendant
• Court: U.S. District Court — Virgin Islands

23 V.I. 183

FITZROY FERRIS, Plaintiff v. V.I. INDUSTRIAL GASES, INC., Defendant

Civil No. 1985/334

District Court of the Virgin Islands Div. of St. Croix

April 22, 1987

Motion for summary judgment in action by employee injured on the job. The District Court, O'Brien, J., dismissed the personal injury tort action based on the exclusivity of the workmen's compensation act remedy, but allowed the plaintiff to amend his complaint to state counts of retaliatory discharge and breach of the duty of good faith and fair dealing.RANCIS J. D'ERAMO, ESQ. (ISHERWOOD, HUNTER & COLIANNI), St. Croix, V.I., for plaintiff

TODD H. NEWMAN, ESQ. (NICHOLS, NEWMAN & SILVERLIGHT), St. Croix, V.I., for defendant

O'BRIEN, Judge

MEMORANDUM OPINION

The question presented in this motion for summary judgment is whether intentional torts should be excepted from the exclusivity of the workmen's compensation remedy. In line with the vast majority of American jurisdictions, we hold that employers are liable at common law for injuries deliberately inflicted on employees. However, the plaintiff has failed to state a claim under this exception and his tort action must, therefore, be dismissed.

I. FACTS

Plaintiff Fitzroy Ferris' job description as an employee of defendant Virgin Islands Industrial Gases, Inc. ("VIGAS"), was to clean and paint gas cylinders. On May 14, 1985, a VIGAS supervisor gave Ferris an electric drill and ordered him to remove a defective safety plug from an acetylene cylinder. The electric drilling ignited the gas and burned Ferris' upper body. VIGAS did not rehire him upon his recovery five weeks later.

Ferris filed for and received workmen's compensation benefits totalling $1,016.66. The hearing officer determined that Ferris was a VIGAS employee at the time of the explosion. This disposition was not appealed. Moreover, VIGAS was cited for two safety violations charging that Ferris was unqualified to perform plug removal and had used an improper procedure.¹ The former charge was eventually withdrawn and VIGAS paid a $360 fine for the latter.

In December 1985, Ferris filed suit contending that VIGAS acted negligently in ordering him to perform work in a hazardous manner. He has moved to amend his complaint to characterize this act as "intentional misconduct" and to add counts of retaliatory discharge and breach of his employment contract's covenant of good faith. In support of the new theories, Ferris affirms that he applied for compensation benefits upon the representation of a VIGAS supervisor that it was a condition for being rehired. He also contends that VIGAS later fired him outright for refusing to execute a release in its favor.

VIGAS moves to dismiss the original complaint on the grounds that Ferris' exclusive remedy is workmen's compensation benefits.

II. DISCUSSION

[1, 2] VIGAS moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) (6). In determining the sufficiency of the pleading, we are bound by the rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Moreover, the factual allegations of the complaint must be viewed as true. D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).

[3, 4] Consideration of matters outside the pleadings converts a motion to dismiss into one for summary judgment. Carter v. Stanton, 405 U.S. 669, 671 (1972). Since both parties rely on documents extraneous to the pleadings, this motion will be viewed as one for summary judgment. Under Rule 56, summary judgment is proper if the nonmoving party cannot show a factual dispute warranting a trial. E.g., Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552-53 (1986).

A. The Tort Claim

The Virgin Islands Workmen's Compensation Act prohibits an employee from suing the employer for injuries suffered in the course of employment and installs a no fault system of limited recovery to redress these claims. It provides:

Exclusivness of remedy

When an employer is insured under this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; but in case of accident to, or disease or death of, an employee not entitled to compensation under this chapter, the liability of the employer is, and shall continue to be the same as if this chapter did not exist.

24 V.I.C. § 284. An "employee" is "any person including a minor, employed under any appointment or contract, express or implied, oral or written, or in the service of any employer." 24 V.I.C. § 251(a) (Supp. 1986).

Ferris received compensation benefits on the basis of a determination that he was a "regular" VIGAS employee. He contends that § 284's bar is nevertheless inapplicable because he was either an independent contractor or temporary employee. These claims are unfounded.

[5] Temporary help is not excluded from the statutory definition of employee and, consequently, if Ferris is to be exempted he must be found to be an independent contractor. The vehicle for distinguishing an employee from an independent contractor is Restatement (Second) of Agency § 220. ICA. Larson, Workmen's Compensation Law, § 43.10 (1986). Accord Vanterpool v. Hess Oil V.I. Corp., 766 F.2d 117, 123 (3d Cir. 1985) cert. denied, 106 S.Ct. 801 (1986).² The key difference is that, unlike the former, the latter retains control over the manner in which work is performed. Rest. § 220 (2)(a) and comment e. Ferris bases VIGAS's tort culpability on the manner in which it instructed him to remove the safety plug. This belies his claim of autonomy. Moreover, Ferris characterizes himself as an unskilled laborer incapable of appreciating the hazards of his task, thus undercutting any contention that he was engaged in a journeyman trade. See id. § 220(2)(b)-(e). Finally, Ferris does not contest that he received an hourly wage and a weekly paycheck from VIGAS. Id. § 220(2)(g). He claims only to have been paid "off the books" and excluded from the plant's union. Finally, he contends that his receipt of compensation benefits is inconclusive because VIGAS tricked him into filing the claim.

[6] As the nonmoving party, Ferris bears the burden of producing evidence that creates a genuine factual issue for trial. Celotex, supra at 2553. A fact is material if it "might affect the outcome of the suit under the governing law" and a dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). Pursuant to Rule 56(c), the proof must be comprised of affidavits, depositions, answers to interrogatories, or admissions on file. Celotex, supra at 2552-53. The only sworn document submitted by Ferris recounts the failure of VIGAS to rehire him. Thus, facts have not been raised to dispute VIGAS' claim that Ferris was an employee for purposes of compensation benefits and, therefore, the tort suit must be dismissed unless we recognize an exception to the compensation bar that creates a cause of action for injuries resulting from the employer's reckless and/ or intentional acts. This is a matter of first impression in the Virgin Islands.

As noted supra, workmen's compensation legislation creates a trade-off in legal rights.

'In some instances where he could prove negligence, an employee may receive less compensation than he would recover in damages in a common law suit. In other situations, an employer may have to pay compensation where he would not be liable for any sum at common law. Despite inequities in specific cases, the underlying assumption is that, on the whole, the legislation provides substantial justice.'

Wilson v. Asten-Hill Manufacturing Company, 791 F.2d 30, 32 (3d Cir. 1986) quoting Weldon v. Celotex Corp., 695 F.2d 67, 70 (3d Cir. 1982). Ferris contends, however, that the compensation bar should not immunize an employer who intentionally or recklessly perpetuates a dangerous workplace in which injuries are, at least, substantially certain to result. He concludes that the threat of suit will give employers incentive to maintain a safe work environment.

An overwhelming majority of American jurisdictions recognize that an employer may be sued at common law for inflicting "genuine intentional injury" upon the employee. To fit within this narrow exception, the putative plaintiff must allege that the employer committed the tortious act with an actual, specific and deliberate intention to injure him. E.g., Wilson, supra at 34 (applying Pennsylvania law); Copeland v. Johns-Manville Products Corp., 492 F. Supp. 498, 500 (D.N.J. 1980) (applying New Jerseylaw); Kittell v. Vermont Weatherboard, Inc., 417 A.2d 926, 927 (Vt. 1980); Griffin v. George's, Inc., 589 S.W.2d 24, 27 (Ark. 1979) (in banc); Williams v. International Paper Company, 181 Cal. Rept. 342, 346 (Cal. App. 1982); Collier v. Wagner Castings Company, 388 N.E.2d 265, 269 (Ill. App. 1979) aff'd 408 N.E.2d 198 (1980); Higley v. Weyerhauser Company, 534 P.2d 596, 598 (Wash. App. 1975); Finch v. Swingly, 348 N.Y.S.2d 266, 268 (N.Y. App. 1973). See generally, Larson, supra at § 68:13. The classic example is a battery committed by a sole proprietor. See e.g., Elliot v. Brown, 569 P.2d 1323 (Alaska 1977); Larson, supra at § 68:11.³

Ferris' proposed amended complaint alleges that VIGAS created a dangerous work environment through "negligence, recklessness and intentional misconduct" by failing to provide him with the appropriate tools, safety clothing and adequate instruction. Attempts to classify similar contentions as intentional torts are almost always unsuccessful because the actual injury remains accidental in character even where the corporate employer knowingly permitted a hazardous work condition to exist, willfully failed to provide a safe place to work or intentionally violated a safety statute. Thus,...