King v. Ross Coal Co., Inc.
| Decision Date | 10 July 1984 |
| Citation | 684 S.W.2d 617 |
| Parties | Gorman Donald KING and Edlene King, Plaintiffs-Appellants, v. ROSS COAL COMPANY, INC., Russell H. Wilson, and Charles C. Ross, individually and as partners d/b/a Ross Coal Company, and Robert L. Wilson, Defendants- Appellees. |
| Court | Tennessee Court of Appeals |
Charles B. Lewis of Morton, Lewis, King & Krieg, Knoxville, for plaintiffs-appellants.
Earl F. Layman of Key, Lee & Layman, Knoxville, for defendants-appellees.
While operating a drill in the defendant's strip mining operation, the plaintiff, Gorman Donald King, was seriously and permanently injured when a huge rock fell on him. The plaintiff sues his employer in a common law action alleging that the incident which resulted in his injuries was not an "accident" as contemplated by the Tennessee Workers' Compensation Law but was an intentional tort committed upon him by his employer, thus removing the exclusive remedy provisions of the Workers' Compensation Law. The trial judge granted the employer's motion for summary judgment, and dismissed the plaintiff's common law action on the ground that the Workers' Compensation Law provided the exclusive remedy against the employer.
The plaintiff alleged that the drilling of the strip mine produced a dangerous highwall about which the owner and foreman were repeatedly warned. Notwithstanding these warnings and the obvious danger to the workers, the employer continued the drilling operation. The plaintiff alleged:
Plaintiff avers that defendants, with knowledge and consciousness that injury was likely to result to the plaintiff and others in his position, did negligently, willfully, maliciously, outrageously, wrongfully, deliberately, wantonly and recklessly subject the plaintiff to a known danger and that such acts and omissions were equivalent to a deliberate attempt to produce such injury as occurred to the plaintiff, thus subjecting said defendants to common law liability.
The plaintiff further alleged the violation of state and federal statutes governing the operation of strip mines, which violations resulted in plaintiff's injuries.
The defendants did not answer, but filed a Motion to Dismiss and/or for Summary Judgment on the ground that Tennessee Code Annotated, Section 50-908, provides that the exclusive remedy is as allowed under the Workers' Compensation Law, thus barring the plaintiff's common law cause of action. Attached to the motion were two affidavits which state that the plaintiff was seriously injured on the date averred while working at the defendant's strip mine; that the plaintiff and the defendant were operating under the Workers' Compensation Law; that the plaintiff was injured while working in the course and scope of his employment; that the plaintiff has been drawing benefits under the law at the rate of $119.00 per week for a total amount in excess of $8,000.00; that the defendant's insurer has paid $113,126.23 in medical expenses for the plaintiff; and that the plaintiff continues to draw benefits under the law. The plaintiff filed affidavits, but there was no countervailing affidavit which disputed the foregoing statements, and we treat those facts as established.
The plaintiff filed the affidavits of six fellow employees or witnesses for the purpose of showing that a jury issue was presented. These affidavits establish that plaintiff was injured in the manner alleged; that the highwall created by the strip mining operation was exceedingly dangerous to workers at its base; that these employees warned the owners and foreman of this condition; that the wall could have been rendered safe by blowing off the top; that the owners did not do this because of the trouble and expense of removing the blasted rock; that the owners refused repeated requests to remedy the dangerous condition of the wall; that some employees refused to work beneath the wall because of its dangerous condition; that the plaintiff's usual occupation with the employer was that of a mechanic, but he was operating a drilling machine when he was injured; and that repeated rock slides occurred at the wall for a period of a few weeks prior to the incident. There are no countervailing affidavits which deny or condition...
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