McCarthy v. Department of Social and Health Services

• Decision Date: 30 June 1988
• Docket Number: No. 53548-5,53548-5
• Court: Washington Supreme Court
• Parties: , 3 IER Cases 710, 13 O.S.H. Cas. (BNA) 1811, 1988 O.S.H.D. (CCH) P 28,254 Helen McCARTHY, Respondent, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Petitioner.

Page 812

110 Wn.2d 812

759 P.2d 351, 3 IER Cases 710, 13

O.S.H. Cas. (BNA) 1811,

1988 O.S.H.D. (CCH) P 28,254

Helen McCARTHY, Respondent, v. The DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Petitioner.

No. 53548-5.

Supreme Court of Washington,

En Banc.

June 30, 1988.

Ken Eikenberry, Atty. Gen., Gregory F. Brunson, Asst. Atty. Gen., Olympia, for petitioner.

Miles, Way & Coyne, Stephen C. Way, Olympia, for respondent.

DORE, Justice.

We hold that the State of Washington owes an employee a duty to provide a safe place to work, and where workers' compensation does not apply, such an employee may bring a common law action against the State, for breach of such duty, and resultant damages.

FACTS

Helen McCarthy was a Department of Social and Health Services employee from February 1970 to December 1980. As an employee she was required to work in an office environment that continuously exposed her to cigarette and tobacco smoke. She complained to her supervisors that her constant exposure to cigarette smoke was having an adverse effect on her health. Despite DSHS's awareness of her pulmonary problems, it failed to take any steps to correct the situation.

As a result of her constant exposure to tobacco smoke in the workplace, McCarthy developed "chronic obstructive pulmonary disease, with broncho-spasm and diminished pulmonary function with sensitivity to tobacco smoke". Clerk's Papers, at 2. In October 1980, McCarthy's physician advised her that she was not capable of performing her employment duties unless the State provided her a clean air environment. Finally, in December 1980, McCarthy's pulmonary disease became totally disabling and she was forced to terminate her employment.

In April 1981 McCarthy filed a claim with the Department of Labor and Industries for workers' compensation benefits contending that her pulmonary disease was an occupational disease contracted during the course of her employment. The Department denied the claim whereafter McCarthy appealed to the Board of Industrial Insurance Appeals. McCarthy alleges that the Board denied her claim on the grounds that her

pulmonary lung disease was not the result of an industrial injury, nor did it constitute an occupational disease within the contemplation of the Washington Industrial Insurance Act Clerk's Papers, at 3. Neither McCarthy nor the State appealed the Board's decision.

Unable to obtain workers' compensation, McCarthy sued the State in Thurston County Superior Court alleging that its negligent failure to provide McCarthy a smoke free environment caused her disabling pulmonary disease. The State moved to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. CR 12(b)(6). The trial court granted the motion. McCarthy appealed and the Court of Appeals reversed and remanded for a trial. McCarthy v. Department of Social & Health Servs., 46 Wash.App. 125, 730 P.2d 681 (1986), review granted, 108 Wash.2d 1001 (1987). We affirm.

EXCLUSIVE REMEDY

The State first argues that the Washington Industrial Insurance Act, RCW Title 51, provides the exclusive remedy for McCarthy's injuries. The Act provides:

The state of Washington ... exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.

(Italics ours). RCW 51.04.010 (part). RCW 51.32.010 governs who is entitled to compensation; it provides in relevant part:

Each worker injured in the course of his or her employment, ... shall receive compensation in accordance with this chapter, and, except as in this title otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever: ...

(Italics ours).

The Act provides basic coverage for injuries sustained in the course of employment. RCW 51.32.010. See RCW 51.08.100. When enacted in 1911, the Act expressly excluded coverage for disability resulting from occupational diseases. Laws of 1911, ch. 74, § 3, pp. 346, 349; see Washington Legislation-1941: Workmen's Compensation, 16 Wash.L.Rev. 59, 153, 154 (1941). In 1937 the Act was amended to provide compensation for disability or death caused by any one of 21 specified diseases. Laws of 1937, ch. 212, § 1, p. 1031. Eventually, the Legislature eliminated the list of enumerated compensable diseases and provided basic coverage for occupational diseases that arise "naturally and proximately out of employment". RCW 51.08.140. Although the exclusive remedy provisions refer only to injuries, when occupational diseases were made compensable, the Act became the exclusive remedy for employees against their employers for such diseases. See RCW 51.16.040; 51.32.180.

The State argues that the Act's exclusive remedy provisions, which abolish other civil remedies for work-related injuries and diseases and provide compensation in lieu of other rights of action, bar McCarthy's common law action. We disagree.

The Act is based on a quid pro quo compromise between employees and employers. The court in Stertz v. Industrial Ins. Comm'n, 91 Wash. 588, 590-91, 158 P. 256 (1916) explained the compromise: The employer agreed to pay on some claims for which there had been no common law liability in exchange for limited liability. The employee agreed to give up available common law actions and remedies in exchange for sure and certain relief under the Act. See Weiffenbach v. Seattle, 193 Wash. 528, 534-35, 76 P.2d 589 (1938). Barring a common law action without providing a substitute remedy under the Act would abrogate the quid pro quo compromise between the employee and the employer. Professor Larson explains:

If ... the exclusiveness defense is a "part of the quid pro quo by which the sacrifices and gains of employees (Footnote omitted.) 2A A. Larson, Workmen's Compensation § 65.40, at 12-41 (1987).

and employers are to some extent put in balance," it ought logically to follow that the employer should be spared damage liability only when compensation liability has actually been provided in its place, or, to state the matter from the employee's point of view, rights of action for damages should not be deemed taken [759 P.2d 354] away except when something of value has been put in their place.

Washington has long recognized that the Act does not contemplate that an employee's common law remedy can be abolished without providing a substitute remedy. Prior to the inclusion of occupational diseases, an employee allegedly suffering from such a disease was not barred by the Act's exclusive remedy provisions from bringing a common law action because such diseases were not within the purview of the Act. Pellerin v. Washington Veneer Co., 163 Wash. 555, 558-59, 2 P.2d 658 (1931); Depre v. Pacific Coast Forge Co., 145 Wash. 263, 264, 259 P. 720 (1927). The State's argument that Pellerin and Depre can be distinguished on the ground that the Act now provides coverage for occupational diseases is without merit. Although the Act provides coverage for occupational diseases, it does not provide the exclusive remedy if the work-related disease falls outside the basic coverage of the Act.

The State's reliance on Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wash.2d 230, 588 P.2d 1308 (1978) to support its exclusive remedy argument is also misplaced. In Seattle-First the court stated that the Act "abolishes judicial jurisdiction over all civil actions for personal injuries arising between employees and the employers." Seattle-First, at 242, 588 P.2d 1308; see also Corr v. Willamette Indus., Inc., 105 Wash.2d 217, 219, 713 P.2d 92 (1986); Provost v. Puget Sound Power & Light Co., 103 Wash.2d 750, 755, 696 P.2d 1238 (1985). This broad language concerning the scope of the Act's exclusive remedy provisions was recently clarified in Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 571, 731 P.2d 497 (1987) wherein we observed We did not mean to imply in Seattle-First that all other types of civil actions between employers and employees were foreclosed. Rather, in referring to "all civil actions," we were discussing civil tort actions "premised upon the 'fault' of the employer vis-a-vis the employee" for workplace injuries compensable under the [Act].

According to the allegations of the complaint, McCarthy's pulmonary disease is not an occupational disease compensable under the basic coverage of the Act. This allegation is sufficient to withstand a CR 12(b)(6) motion to dismiss based on the exclusive remedy provisions of the Act.

COMMON LAW ACTION

McCarthy's action may be dismissed for failure to state a claim only if "it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief." Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wash.2d 959, 961, 577 P.2d 580 (1978); CR 12(b)(6). McCarthy has alleged that DSHS's negligence proximately caused her disabling pulmonary disease.

A cause of action for negligence will not lie unless the defendant owes a duty of care to the plaintiff. See Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984). In Washington, an employer has an affirmative and continuing duty to provide all employees a reasonably safe place to work. Guy v. Northwest Bible College, 64 Wash.2d 116, 118, 390 P.2d 708 (1964); Myers v. Little Church by the Side of the Road, 37 Wash.2d 897, 901-02, 227 P.2d 165 (1951); see Ward v. Ceco Corp., 40 Wash.App. 619, 628-29, 699 P.2d 814, review denied, 104...