Kandt v. Evans

• Decision Date: 24 May 1982
• Docket Number: No. 81SA50,81SA50
• Citation: 645 P.2d 1300
• Parties: Andrea S. KANDT, Plaintiff-Appellant, v. E. B. EVANS; National Icee, a corporation; and Terry Goldstein, individually, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1300

645 P.2d 1300

Andrea S. KANDT, Plaintiff-Appellant, v. E. B. EVANS; National Icee, a corporation; and Terry Goldstein, individually, Defendants-Appellees.

No. 81SA50.

Supreme Court of Colorado.

May 24, 1982.

David J. Mintz, William A. Powers, Littleton, for plaintiff-appellant.

Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Denver, for defendants-appellees.

DUBOFSKY, Justice.

The plaintiff, Andrea S. Kandt, appeals the Denver District Court's summary judgment dismissal of her tort action against her employer and co-employee for intentional infliction of emotional harm suffered in the course of her employment. ¹ The district court determined that the Colorado Workmen's Compensation statute, section 8-40-101 et seq., C.R.S.1973 and 1981 Supp. provides the exclusive remedy for the plaintiff's injury and precludes the plaintiff's intentional tort action. We affirm the district court's ruling.

The defendants E. B. Evans and National Icee employed the plaintiff in a sales and marketing capacity, a job which included wearing an "Icee Bear" costume with a large head weighing approximately forty pounds. The defendant Terry Goldstein, also an Icee employee, was the plaintiff's supervisor. On June 9, 1977 the plaintiff in the course of her employment with Icee, suffered serious back and leg injuries in an automobile accident and was unable to return to work until September 21, 1977. When she returned to work, her treating physician, Icee's company doctor, advised her to perform only light duties. Goldstein, however, threatened to fire the plaintiff unless she disregarded the doctor's orders and resumed wearing the Icee bear costume. He also forced her to remain on her feet for long periods of time and to do heavy lifting.

The plaintiff complied with Goldstein's order for approximately one month. During that time her physical condition degenerated, aggravating her injuries. On October 19, 1977 she was again hospitalized for eleven days. Goldstein called her while she was in the hospital and ordered her to return to work or be fired. When she was unable to leave the hospital, she was fired.

The plaintiff then filed a Workmen's Compensation claim against National Icee and its insurer with the Division of Labor. Following a hearing on May 9, 1979, the commission referee found that "the claimant had two injuries, and ... the first injury of June 1977, accounts for her permanent disability." He found that the plaintiff suffered a permanent partial disability of 10% and awarded her compensation of $84.00 a week, up to a maximum of $20,315.57. After the referee entered his order, the plaintiff filed this action against Icee and Goldstein, alleging that Goldstein's conduct was intentional and outrageous and that it had both aggravated her pre-existing injuries and caused extreme mental anguish. The district court granted the defendants' motion to dismiss, holding that the Workmen's Compensation Act constitutes the exclusive remedy available to an employee injured by the intentional tort of a co-employee. The court based its ruling on Ellis v. Rocky Mountain Empire Sports, 43 Colo.App. 166, 602 P.2d 895 (1979).

The plaintiff argues that a workmen's compensation award is not a bar to recovery for the intentional tort of a co-employee and that the district court abused its discretion in not holding an evidentiary hearing to determine whether Goldstein was acting within the scope of his employment when he committed the acts which form the basis for the tort claim. She contends that even if the statutory compensation precludes recovery against a co-employee, if Goldstein was acting outside the scope of his employment, then he was in the position of a third party and not subject to the statute's exclusivity provisions. We conclude that an employee is not barred from bringing an action for intentional tort against a co-employee if the co-employee's acts were not in the course of employment. However, because the plaintiff failed to make such an allegation, we affirm the district court's dismissal of the action.

The Colorado Workmen's Compensation Act (Act) embodies a comprehensive scheme for compensation to employees of participating employers for job-related injuries. Vanadium Corp. of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957). Compensation under the Act does not require proof of fault. Section 8-52-102, C.R.S.1973 (1981 Supp.) provides that compensation is awarded in all cases when the following conditions occur:

(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of his employment;

(c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted.

In addition, under section 8-42-101, C.R.S.1973, an employer's common law defenses to liability are abrogated.

Recovery under the Act is meant to be exclusive and to preclude employee tort actions against an employer. Section 8-42-102, C.R.S.1973 (1981 Supp.) provides:

An employer who has complied with the provisions of articles 40 to 54 of this title, including the provisions relating to insurance, shall not be subject ... to any other liability for the death of or personal injury to any employee, except as provided in said articles; and all causes of action, actions at law, suits in equity, proceedings, and statutory and common law rights and remedies for and on account of (the) death of or personal injury to any ... employee and accruing to any person are abolished except as provided in said articles.

Similarly, section 8-43-104, C.R.S.1973 (1981 Supp.) states that acceptance of the scheme constitutes a surrender of other remedies by both employer and employee:

An election under the provisions of section 8-41-105(5) and in compliance with the provisions of articles 40 to 54 of this title, including the provisions for insurance, shall be construed to be a surrender by the employer, his insurance carrier, and the employee of their rights to any method, form, or amount of compensation or determination thereof or to any cause of action, action at law, suit in equity, or statutory or common-law right, remedy, or proceeding for or on account of such personal injuries or death of such employee other than as provided in said articles, and shall be an acceptance of all the provisions of said articles....

These exclusivity provisions constitute part of the quid pro quo of workmen's compensation schemes, under which the employer assumes liability for work-related injuries irrespective of fault, and in return, employees are precluded from bringing actions at common law. 2A Larson, Workmen's Compensation Law § 65.10 at 12-1 to 12-4 (1976). The Act recognizes that third persons are not parties to this bargain and thus should not be protected from common law liability for injuries they cause. Section 8-52-108, C.R.S.1973.

The Act is silent on the issue of whether it provides for recovery for intentional torts. Prior to its amendment in 1975, section 8-52-102, C.R.S.1973 provided that an employee was entitled to compensation for any personal injury accidentally sustained or death resulting therefrom...

(a) Where, at the time of the accident, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment;

(c) Where the injury or death is proximately caused by an accident arising out of and in the course of his employment and is not intentionally self-inflicted.

(Emphasis added.) "Accident" was defined in section 8-41-108(1), C.R.S.1973 as:

an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause or, the cause being known, an unprecedented consequence of it.

Some of this Court's older decisions interpreted the word "accident" in the Act to preclude employee recovery under the Act for intentional wrongs. In Keating v. Industrial Commission, 105 Colo. 155, 95 P.2d 821 (1939),

"In Workmen's Compensation Acts, ... injuries are designated 'accidents,' to distinguish them from intentional injuries and injuries caused by disease." Central Surety Corp. v. Industrial Comm., 84 Colo. 481, 271 P. 617, 621 (1928).

95 P.2d at 822.

However, even the Central Surety case on which we relied in Keating recognized that an "accidental" injury is merely one which "the sufferer did not intend or expect ... would on that particular occasion result from what he was doing." 84 Colo. at 486, 271 P. 617. Subsequent decisions have construed "accident" expansively to cover a variety of work-related incidents and conditions. See, e.g., Wesco Electric Co. v. Shook, 143 Colo. 382, 353 P.2d 743 (1960); University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). In Wisdom v. Industrial Commission, 133 Colo. 266, 293 P.2d 967 (1956), this Court declared that an employee's injuries from an assault by a co-employee are compensable under the Act, as long as they "arise out of" the employment. Accord Alpine Roofing Company v. Dalton, 36 Colo.App. 315, 539 P.2d 487 (1975). See Packaging Corporation of America v. Roberts, 169 Colo. 316, 455 P.2d 652 (1969); Industrial Commission v. Strome, 107 Colo. 54, 108 P.2d 865 (1940).

The Tenth Circuit, interpreting language in the Oklahoma workmen's compensation statute, held that "accident" includes the willful or criminal acts of another, since, from the victim's point of view, these are just as unexpected and unforeseeable as are industrial...