Hunsperger v. USF Reddaway, Inc.
| Decision Date | 01 September 2004 |
| Citation | 195 Or.App. 144,96 P.3d 1277 |
| Parties | William HUNSPERGER, Appellant, and Mary Hunsperger, Plaintiff, v. USF REDDAWAY, INC., an Oregon corporation and a subsidiary of USFreightways, Inc., Respondent, and Portland General Electric, a subsidiary of Enron Corporation, a Texas corporation; USFreightways Corporation, a Delaware corporation; USF Distribution Services, Inc., an Illinois corporation and a subsidiary of USFreightways corporation; Enron Corporation, a Texas corporation; Ottawa Truck Inc.; Ottawa Truck International, Inc.; Ottawa Truck Company; Ottawa Truck Corp.; Ottawa Truck Corporation, Inc.; Ottawa Trucking Corporation; Ottawa Trucks, a division of Kalmar Industries, Corp., a wholly-owned subsidiary of Kalmar Industries AB; Sisu American, Inc.; Sisu North America, Ins.; Sisu, N.A.; Sisu USA, Inc.; Sisu Terminal Systems, Inc.; Kalmar Industries USA Inc., a Texas corporation; Kalmar Industries, Corp.; Kalmar Industries, Inc./Ottawa Truck Division; Kalmar, Inc.; Kalmar Industries, Inc./Magnum Division; Kalmar Ac., Inc.; Kalmar-ac Handling Systems, Inc.; Kalmar-ac Group, Inc.; Cargotec, Inc.; Partek Corporation, a Finnish corporation, Defendants. |
| Court | Oregon Court of Appeals |
Ben Shafton argued the cause for appellant. With him on the briefs was Morse & Bratt.
Peter C. Richter, Portland, argued the cause for respondent. With him on the brief were William H. Walters, Portland, and Miller Nash LLP.
Before EDMONDS, Presiding Judge, and SCHUMAN and ORTEGA, Judges.
Plaintiff William Hunsperger appeals from the trial court's grant of summary judgment in favor of defendant USF Reddaway (defendant) on his personal injury claim.1 Plaintiff William Hunsperger and his wife sued defendant, plaintiff's employer, for injuries that he suffered while at work. Plaintiff argues that genuine issues of material fact exist sufficient to create an issue for the jury regarding whether defendant deliberately intended the injuries. Under Washington law, which applies here, plaintiff must show defendant's deliberate intent in order to avoid the exclusive remedy provided by Washington's Industrial Insurance Act. Because plaintiff did not present sufficient evidence of intent to support a jury finding in his favor, we affirm.
On review of the trial court's grant of summary judgment to defendant, we state the facts in the light most favorable to plaintiff, the nonmoving party. Webber v. Olsen, 330 Or. 189, 192, 998 P.2d 666 (2000). Plaintiff, a Washington resident, worked for defendant as a truck driver from 1993 until 1998, the year he suffered his injuries. The injuries occurred at a yard in Oregon that was owned and operated by defendant. On a rainy September night, plaintiff stopped at the yard while heading south. Typically, defendant's trucks that were heading south from Washington would pick up a third trailer for their trucks at the Oregon yard. Employees operating tractor-type vehicles called "yard goats" worked to add or remove trailers from trucks at the yard. Lighting in the area was poor—street lamps stood on the perimeter of the yard but did not shine on the area at issue. The area was dark enough that at least one driver routinely carried a flashlight when he walked there at night. On the occasion at issue, a light on a nearby shop building was obscured by trucks parked in front of it (as was often the case).
In order to add or remove a trailer, truck drivers were required to leave their trucks and hail a yard goat driver. The area was busy and congested; yard goats would often drive around from behind trucks and move in and out of tight spaces between trucks and trailers. The area was also noisy from the sound of many truck and yard goat engines. Truck drivers were paid for only 45 minutes of the time spent adding or removing trailers in the yard. According to plaintiff, yard goat drivers were also pushed to hurry in adding or removing trailers. Defendant's yard goat drivers were not required to have commercial driver's licenses. Compared to such drivers at yards where commercial licenses were required, defendant's yard goat drivers were relatively younger, less well-trained, and involved in more accidents at the yards.
The conditions at the yard caused one driver to call it a "dead man's zone." Truck drivers had notified defendant that it was unsafe for truck drivers to walk in the yard at night and asked defendant to provide reflective vests so that they would be more visible. Defendant did provide such vests to security personnel working in the yard but not to truck drivers.
At 3:00 a.m., plaintiff left his truck and was walking in the yard, possibly to hail a yard goat driver. It was drizzling at the time, just after a hard rain. While walking in the yard, plaintiff was struck by a yard goat driven by Dean Johnson, who, at the time, was not commercially licensed. Just before the accident, a witness saw Johnson drop off a trailer, drive to the end of a lane of parked trucks, and then turn left and accelerate quickly. The witness estimated that the yard goat was traveling at 10 to 12 miles an hour when it left his view; seconds later the witness heard the yard goat skid on wet pavement. The witness found plaintiff, who had sustained serious injuries, on the ground in front of the yard goat.
At least one of defendant's employees had been injured previously due to the negligence of a yard goat driver, but not under circumstances similar to those at issue here. In that case, which occurred in the daytime at a different yard (in Medford), a trailer was parked at a loading dock. A forklift driver was driving onto the trailer at the same time that a yard goat driver pulled the trailer away from the dock. The forklift fell to the ground and its load fell on top of the driver, causing serious injuries and eventually death.
Plaintiff and his wife sued defendant for intentional injury, alleging that defendant knew that truck drivers walking in the yard at night were "certain" to be injured or killed by yard goats due to inadequate lighting, layout, and "yard practices." Defendant moved for summary judgment, arguing that, under the applicable Washington law, plaintiffs were limited to the remedies provided under the Industrial Insurance Act (IIA), Washington's workers' compensation scheme, for any injuries that occurred on the job. Defendant further argued that the only exception to that exclusive remedy applied when an employer had "actual knowledge that an injury was certain to occur and willfully disregarded that knowledge"; defendant asserted that plaintiff could not meet that standard. The trial court agreed with defendant and granted the motion.
Plaintiff now appeals, and both parties renew the arguments made below. Both agree that Washington law applies, and both agree that the appropriate inquiry is whether defendant had "actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." See Birklid v. Boeing Co., 127 Wash.2d 853, 865, 904 P.2d 278, 285 (1995). We affirm a grant of summary judgment only if "no objectively reasonable juror" could return a verdict for the nonmoving party, here plaintiff. See Robinson v. Lamb's Wilsonville Thriftway, 332 Or. 453, 455, 31 P.3d 421 (2001) (quoting ORCP 47 C).
The IIA provides an exclusive remedy for employees injured in the course of employment, thus barring lawsuits by employees against employers. RCW 51.04.010. However, the IIA contains an exception: employees may bring actions against employers "[i]f injury results to a worker from the deliberate intention of his or her employer to produce such injury." RCW 51.24.020. Although Washington courts initially interpreted the exception narrowly, finding "deliberate intention" only when the employer (or its agent) had a specific intent to cause injury to a particular employee, Birklid, 127 Wash.2d at 861-62, 904 P.2d at 283-84, the Washington Supreme Court significantly broadened that interpretation in Birklid.
In that case, employees of Boeing were asked to work with a new material in preproduction testing. Id. at 856, 904 P.2d at 281. Several employees became ill and reported this to Boeing. Id. Boeing included the new material in full production without improving ventilation in the work area, and workers again became ill. Id. The workers sued Boeing in federal court alleging that Boeing had a "deliberate intention to produce injury" so that the exception to IIA exclusivity applied. On certification of the question from the federal court, the Washington Supreme Court agreed that the workers had sufficient evidence to present the question to a jury. Id. at 865, 904 P.2d at 285. In reaching that conclusion, the court announced a broader interpretation of the phrase "deliberate intention": "We hold the phrase `deliberate intention' in RCW 51.24.020 means the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge." Id.
We address the first element, whether defendant could have had "actual knowledge that an injury was certain to occur," before we address whether defendant disregarded that knowledge.
From the facts and holding of Birklid and subsequent cases, we glean some additional guidance as to what is required to show "actual knowledge that an injury was certain to occur." The facts of Birklid show that the employer's intent need not be directed toward a particular employee; rather, it is enough that the intent is directed toward a class of employees. Birklid also suggests that the employer need not intend that injury occur; rather, the employer must only intend that circumstances certain to cause injury exist. See Hope v. Larry's Markets, 108 Wash.App. 185, 194, 29 P.3d 1268, 1273 (2001) (). The employer's "actual knowledge that an injury was certain to occur" can be inferred from the...
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