Foster v. Allsop Automatic, Inc., 43790

• Decision Date: 11 March 1976
• Docket Number: No. 43790,43790
• Citation: 86 Wn.2d 579,547 P.2d 856
• Parties: Donald G. FOSTER, Appellant, v. ALLSOP AUTOMATIC, INC., a Washington Corporation, Respondent.
• Court: Washington Supreme Court

Page 579

86 Wn.2d 579

547 P.2d 856

Donald G. FOSTER, Appellant, v. ALLSOP AUTOMATIC, INC., a Washington Corporation, Respondent.

No. 43790.

Supreme Court of Washington, En Banc.

March 11, 1976.

Hageman, Prout, Kirkland & Coughlin, Richard L. Prout, Seattle, for appellant.

Lenihan, Ivers, Jensen & McAteer, P.S., Sigurd Borgersen, Seattle, for respondent.

UTTER, Associate Justice.

Plaintiff Foster appeals from an order of the superior court granting defendant's motion for summary judgment and dismissing plaintiff's action against his employer for injuries sustained in an industrial accident. The sole issue presented is whether plaintiff's proof created an issue of fact regarding the 'deliberate intention of his employer' to injure him within the meaning of RCW 51.24.020. No genuine issue of material fact is presented by plaintiff's allegations and we affirm the trial court.

Plaintiff operated a 90-ton hydraulic punch press for defendant Allsop Automatic, Inc. In accordance with applicable regulations ¹ the press was equipped with a two-handed tripping device which required the operator to use both hands to activate the press, thus keeping hands removed from the moving parts of the machine. This safety device often was circumvented by unknown persons who placed a screwdriver in one of the tripping switches so that the press could be activated with only one hand. Defendant's shift supervisor was aware of this practice. Plaintiff himself once replaced the screwdriver after it had fallen from the switch and, according to his affidavit, plaintiff was told by his supervisor that this was the proper thing to do. On two occasions a maintenance employee of defendant removed the screwdriver to restore the safety device to proper operation. On December 4, 1973, plaintiff was operating the press with one hand, became momentarily distracted, and was seriously injured when his other hand was struck by the press. In affidavits, several supervisory employees of defendant denied intending any physical injury to befall plaintiff. Plaintiff claimed compensation under the industrial insurance statute, RCW Title 51, and received a permanent partial disability award of $7,800.

In this jurisdiction all civil causes of action by an employee against his employer for personal injuries sustained in an industrial accident have been withdrawn from private controversy by statute, except as expressly allowed. RCW 51.04.010; Shoopman v. Calvo, 63 Wash.2d 627, 629, 388 P.2d 559 (1964). The only exception pertinent to the present case is that provided by RCW 51.24.020 which states:

If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the workman . . . shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any excess of damages over the amount received or receivable under this title.

Relying on this exception, plaintiff contends that both the circumvention of the safety device on the hydraulic press and the injury to his hand were the result of the 'deliberate intention' of the defendant and, hence, that he has a cause of action for damages beyond the compensation received from the industrial insurance fund.

The critical statutory language has been construed by this court on three occasions. In Delthony v. Standard Furniture Co., 119 Wash. 298, 205 P. 379 (1922), the court noted that 'deliberate intention' was also part of the Oregon workmen's compensation act and relied upon Jenkins v. Carman Mfg. Co., 79 Or. 448, 155 P. 703 (1916), to define the phrase:

(B)y the words 'deliberate intention to produce the injury' . . . the lawmakers meant to imply that the employer must have determined to injure an employe and used some means appropriate to that end; that there must be a specific intent, and not merely carelessness or negligence, however gross.

Delthony v. Standard Furniture Co., supra 119 Wash. at 300, 205 P. at 380. This definition was followed in Perry v. Beverage, 121 Wash. 652, 209 P. 1102 (1922), in which it was held that such intent could be found in the act of the employer's foreman striking an employee on the head with a water pitcher, and in Biggs v. Donovan-Corkery Logging Co., 185 Wash. 284, 54 P.2d 235 (1936), in which violation of several safety regulations was held not to support a finding of deliberate intent. The same definition has been applied recently in industrial accident cases coming before our Court of Appeals. Winterroth v. Meats, Inc., 10 Wash.App. 7, 516 P.2d 522 (1973); Higley v. Weyerhaeuser Co., 13 Wash.App. 269, 534 P.2d 596 (1975).

Plaintiff asks us to depart from this line of precedent for three reasons. First, he contends that in Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934), the Oregon Supreme Court modified the construction of 'deliberate intention' announced in Jenkins v. Carman Mfg. Co., supra, and adopted by this court in Delthony v. Standard Furniture Co., supra. Although the opinion in Weis v. Allen, supra at 678, 35 P.2d at 481, does state that "(e)very man is held to the necessary, natural and probable consequences of his act . . .", this statement is made by the court in reference to liability for spring guns and not in the interpretation of the workmen's compensation statute. See Fryman v. Electric Steam Radiator Corp., 277 S.W.2d 25, 27 (Ky. 1955). As we noted in Biggs v. Donovan-Corkery Logging Co., supra 185 Wash. at 287--88, 54 P.2d 235, the Oregon court in Weis merely distinguished its earlier decision and did not overrule or modify the definition stated in Jenkins. Moreover, that definition was reaffirmed in Oregon as recently as 1964. Caline v. Maede, 239 Or. 239, 396 P.2d 694 (1964).

Second, plaintiff seeks to distinguish the one Washington decision finding 'deliberate intention' from the others by suggesting that a characterization of the employer's conduct as 'active' or 'passive' underlies the conclusions reached in the three cases. This rationale is not apparent from either the language or the reasoning of those decisions. In addition such a distinction is not helpful. 'In theory the difference between the two is simple and obvious, but in practice it is not always easy to draw the line and say whether conduct is active or passive.' W. Prosser, Law of Torts § 56, at 339 (4th ed. 1971). An action under RCW 51.24.020 is allowed for all injuries resulting from the 'deliberate intention of (the) employer to produce such injury,' even if the employer's conduct manifesting that intent might be characterized as 'passive' in nature.

Third, plaintiff contends that legislative enactments have significantly altered the employer-employee relationship since we last considered the language of RCW 51.24.020 ² and, thus, that the construction approved of in Biggs v. Donovan-Corkery Logging Co., supra, should be changed. However, the interpretation adhered to in Biggs has been in effect for more than 50 years and legislative approval is presumed. As the court in Winterroth v. Meats, Inc., supra 10 Wash.App. at 13, 516 P.2d at 525, stated:

It would have been a simple matter for the legislature to have changed the rule and adopted a broader exception so as to permit the action here if the legislature wished . . . This is all the more true because the legislature during the last 50 years has amended the industrial...