Kearney v. Denker

• Decision Date: 10 August 1988
• Docket Number: No. 17062,17062
• Citation: 114 Idaho 755,760 P.2d 1171
• Parties: Terri Lynn KEARNEY, Plaintiff-Appellant, v. Tom DENKER and Kevin O'Brien dba Evergreen Landscaping; Defendants-Respondents, and Highland Equipment Company; and Corporate Does I Thru IV, Defendants.
• Court: Idaho Supreme Court

Page 1171

760 P.2d 1171

114 Idaho 755

Terri Lynn KEARNEY, Plaintiff-Appellant, v. Tom DENKER and Kevin O'Brien dba Evergreen Landscaping; Defendants-Respondents and Highland Equipment Company; and Corporate Does I Thru IV, Defendants.

No. 17062.

Supreme Court of Idaho.

Aug. 10, 1988.

E. Lee Schlender, Hailey, for plaintiff-appellant.

Quane, Smith, Howard & Hull, Boise, Brian K. Julian, argued for defendants-respondents.

JOHNSON, Justice.

This is a personal injury case involving an employee who was injured while in the course of her employment. The primary issue presented is whether the employee may maintain a civil action against the employer for injuries that were allegedly caused by an intentional tort of the employer during the course of employment. We hold that by filing a claim for worker's compensation the employee did not waive the right she had to file this action, that there was no evidence of wilful or unprovoked physical aggression by the employer, and that the Idaho worker's compensation law does not deny the equal protection of the laws to an employee who is intentionally injured on the job by the employer. We affirm the trial court's summary judgment dismissing the employee's complaint.

I.

THE FACTS AND PRIOR PROCEEDINGS.

Terri Lynn Kearney (the employee) was injured while she was working for Tom Denker and Kevin O'Brien dba Evergreen Landscaping (the employer) when her right foot was partially severed by a lawn mower she was operating. The lawn mower was made up of a chassis the employer had purchased from Highland Equipment Company (Highland) and an engine that the employer had acquired separately. When the employer received the lawn mower chassis from Highland, a flywheel safety device and a grip that would shut the engine off when the operator's hands came off the handlebars were included in the parts shipped with the chassis. The employer did not install these safety devices on the lawn mower because the engine did not come equipped with a flywheel brake and had only a manual shut-off switch on the engine itself. The employer also did not install a grass deflector that was shipped with the chassis. The deflector would have covered an opening at the rear of the lawn mower that exposed the rotary blade and the cutting area. Instead, the employer prepared the mower so that a grass catcher could be attached that would cover this opening while the lawn mower was being operated. The employer left it to the discretion of the person operating the lawn mower whether the grass catcher was used or not. At the time the employee was injured the grass catcher was not attached to the mower to cover the opening that exposed the blade and cutting area of the mower.

The employer knew that operating the lawn mower was a hazardous job, because an employee might slip while operating it. Some of the lawn mowing was done on hillsides when the grass was wet. At the time of her injury the employee slipped while going downhill with the mower causing her foot to come in contact with the rotary blade.

Following the injury the employee filed a claim for worker's compensation. Later the employee filed this action for damages alleging that the employer was "willfully, wantonly and grossly negligent, which negligence was so extreme as to be substantially certain to injure someone." The employee alleged that the employer did not use the proper engine or safety devices on the lawn mower, and that the employer knew that the engine "did not have upon it a rotary blade safety or clutch mechanism, nor any automatic cut-off switch attached thereto, to shut the engine off in the event of an operator slip or fall," and that the employer did not place the safety devices on the chassis that were contained in the parts shipped with it. The employee also alleged that the employer "knew with certainty that the operation of a rotary lawn mower of this type and size, commercial in nature, was and is exceedingly dangerous and that without some type of safety shut-off mechanism in the event of an operator slip or fall, an injury was and is certain to occur," and that "there is no difference between an intentional, willfull act of direct harm and removal of all safety devices on a commercial lawn mower and modifications thereof, making injury certain." The employee asserted that if the worker's compensation law were applied and interpreted to deny her the right to recover damages from the employer, it would violate her legal rights and deprive her "of the rights, privileges and immunities secured by the Constitution of the United States."

The employer moved for summary judgment. The trial court found that there was no genuine issue of fact and concluded that the employer was entitled to summary judgment as a matter of law dismissing the complaint. The employee has appealed the order granting summary judgment.

II.

BY FILING A WORKER'S COMPENSATION CLAIM THE EMPLOYEE DID NOT WAIVE THE RIGHT TO FILE AN ACTION FOR WILFUL OR UNPROVOKED PHYSICAL AGGRESSION OF THE EMPLOYER.

Generally, the Idaho worker's compensation law provides the exclusive remedy for injuries arising out of and in the course of employment. I.C. §§ 72-201, 72-209 and 72-211; Wilder v. Redd, 111 Idaho 141, 142, 721 P.2d 1240, 1241 (1986); Yeend v. United Parcel Service, Inc., 104 Idaho 333, 334, 659 P.2d 87, 88 (1983). There is an exception from this exclusivity "in any case where the injury or death is proximately caused by the wilful or unprovoked physical aggression of the employer, its officers, agents, servants or employees." I.C. § 72-209(3).

The filing of a claim for worker's compensation, such as the employee did in this case, merely notifies an employer of an injury for which the employee seeks compensation. No proceeding before the Industrial Commission for worker's compensation may be maintained unless the claim has been filed in a timely fashion. I.C. § 72-701. Only if the employee is entitled to worker's compensation is the employee excluded from "all other rights and remedies ... at common law or otherwise." I.C. § 72-211. Until it is determined that the employee is entitled to worker's compensation the employee may seek other remedies, such as damages for injuries not subject to the exclusive remedies of the worker's compensation law. If the employee is unable to prove that the injury was caused by the wilful or...