Mead v. Western Slate, Inc., 2004 VT 11 (Vt. 2/13/2004)

• Citation: 2004 VT 11
• Decision Date: 13 February 2004
• Docket Number: No. 2002-544, November Term, 2003,2002-544, November Term, 2003
• Parties: Martin Mead Jr. and April Mead v. Western Slate, Inc. and Jeffrey N. Harrison
• Court: United States State Supreme Court of Vermont

Page 1

2004 VT 11

Martin Mead Jr. and April Mead v. Western Slate, Inc. and Jeffrey N. Harrison

No. 2002-544, November Term, 2003

Supreme Court of Vermont

February 13, 2004

On Appeal from Rutland Superior Court, William D. Cohen, J.

Thomas W. Costello and Steven B. Wright of Thomas W. Costello, P.C., Brattleboro, for Plaintiff-Appellee.

John Paul Faignant of Miller Faignant & Behrens, P.C., Rutland, for Defendant-Appellant Western Slate, Inc.

John E. Brady and Brendan P. Donahue of Brady & Callahan, P.C., Springfield, for Defendant-Appellant Harrison.

PRESENT: Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J. (Ret.), Specially Assigned

JOHNSON, J.

¶ 1. Defendants Western Slate, Inc. and Jeffrey N. Harrison appeal from the denial of their post-trial motions for judgment as a matter of law, or in the alternative, for a new trial, following a jury verdict finding them liable for injuries to their employee, plaintiff Martin Mead, Jr., under the intentional-injury exception to the workers' compensation law. Defendants contend the court erred in ruling that the exception could be satisfied by a showing that they knew to a "substantial certainty" their conduct would result in plaintiff's injury. We conclude that the evidence was insufficient as a matter of law to support such a showing, and therefore reverse.

¶ 2. Viewing the evidence in the light most favorable to the judgment, as we must on appeal from a denial of a motion for judgment as a matter of law, Brueckner v. Norwich Univ., 169 Vt. 118, 120-21, 730 A.2d 1086, 1089 (1999), the facts may be summarized as follows. Plaintiff Martin Mead had worked for defendant Western Slate, Inc. as a mechanic, sawyer, and driller for several years prior to the accident that gave rise to this litigation. He had extensive experience working in Western's slate quarry pit, and also had prior work experience in the quarry of another employer. Defendant Jeffrey N. Harrison is the co-owner of Western. He is an experienced slate quarry operator and was generally in charge of mining operations at the time of incident. On the morning of August 17, 1999, Harrison directed plaintiff to prepare a "pillar" — or area of stone — below the northeastern high wall for excavation. Plaintiff spent much of the day in the pit drilling holes along the butt and grain of the rock for the insertion of packing material and explosives.

¶ 3. The next morning, plaintiff returned to the area to complete the drilling. Upon arrival, however, he observed fresh debris in the area — indicating a recent rock fall. Plaintiff sent two co-workers, his brother Richard Mead and Leonard Andrews, to inform Harrison about the situation, and then commenced to complete the drilling. Plaintiff recalled that when the two returned, Richard reported that Harrison had instructed them to load the explosives and packing material in their truck, return to the pit, and finish the drilling, loading, and firing. Harrison had also indicated that he needed to go to the store to buy parts, and would return shortly to inspect the area.

¶ 4. Mead and Andrews loaded the packing material and explosives in their truck as directed, returned to the pit, and reported their conversation with Harrison to plaintiff. Plaintiff then completed the drilling and was in the process of loading the holes with explosives when he was struck by a rock fall, sustaining multiple fractures and lacerations. Plaintiff applied for and received workers' compensation benefits. He also filed a personal injury action against Harrison and Western, alleging that they had committed an intentional tort by failing to order him to cease operations and leave the area after the initial rock fall, resulting in a substantial certainty of injury. See Kittell v. Vt. Weatherboard, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980) (workers' compensation provides exclusive remedy for work-related injury absent "specific intent to injure"). Plaintiff also sued Harrison under a separate co-employee claim that Harrison had committed affirmative acts of negligence by ordering plaintiff to work in the pit after Harrison had been informed of the initial rock fall. See Gerrish v. Savard, 169 Vt. 468, 471, 739 A.2d 1195, 1198 (1999) (workers' compensation exclusivity does not prohibit employee's action against co-worker for negligence outside parameters of employer's non-delegable duty to maintain safe workplace). Plaintiff further alleged that defendants' misconduct had been willful, wanton, and malicious, entitling him to punitive damages.¹

¶ 5. Defendants filed motions to dismiss and for summary judgment, arguing that workers' compensation provided the exclusive remedy for plaintiff's injuries, and that the evidence was insufficient to establish an exception to the rule of exclusivity for intentional injury. The court denied the motions. At the close of plaintiff's case in chief, and again at the conclusion of all the evidence, defendants moved for judgment as a matter of law on the basis of workers' compensation exclusivity. The court denied both motions, finding that the evidence was sufficient to raise a jury question as to whether defendants had knowledge to a "substantial certainty" that their actions would result in plaintiff's injuries. Plaintiff voluntarily withdrew his separate negligence claim against Harrison. Additionally, the court ruled that the evidence was insufficient to submit the issue of punitive damages to the jury.

¶ 6. Over objection, the court then instructed the jury that it was plaintiff's burden to prove that defendants had the "specific intent to injure him," but that such intent could be established in one of two ways: that defendants either "had the purpose or desire to cause him injury or that although the Defendants lack[ed] such purpose or desire they knew to a substantial certainty that their actions would bring about his injury."² Later, during its deliberations the jury sent a note to the court stating, "we need a good detailed definition of specific intent." After consulting with counsel, the court informed the jury that it had defined specific intent in the instructions already given, and offered no further definition.

¶ 7. The jury returned a special verdict in favor of plaintiff, finding that although neither defendant had a specific purpose or desire to injure him, both knew to a substantial certainty that their actions or inactions would injure plaintiff. The jury assigned separate damage awards to each defendant, finding Western to be liable for medical expenses of $3044, pain and suffering of $40,000, and lost wages of $14,176, and Harrison to be liable for medical expenses of $9134, and pain and suffering of $50,000. The court entered a single judgment in favor of plaintiff for a total of $116,355.

¶ 8. Defendants subsequently filed post-trial motions for judgment as a matter of law, or in the alternative, new trial, restating their contention that the court had erred as a matter of law by allowing the jury to find a specific intent to injure based on a substantial certainty that injury would occur. Defendants also filed motions to amend the judgment to reflect the court's earlier determination that the judgment against defendants would be several and to reduce the award by the amount of workers' compensation benefits paid to plaintiff on defendants' behalf by their insurance carrier. Plaintiff, for his part, moved to alter the judgment to find defendants jointly and severally liable, and also moved for costs and pre-judgment interest. The court entered an order denying all post-judgment motions except the request for separate verdicts and judgments, and issued amended judgments against Western for damages of $57,221 plus "plaintiff's costs of action" and against Harrison for $59,134 plus "plaintiff's costs of action."

¶ 9. On appeal, defendants challenge the court's denial of their motions for judgment as a matter law, claiming principally that the court erred by: (1) allowing plaintiff's lawsuit to proceed after he had elected to apply for and receive workers' compensation benefits; and (2) departing from the strict definition of "specific intent to injure" set forth in Kittell, 138 Vt. at 441, 417 A.2d at 927, and allowing a showing of such intent based on a "substantial certainty" that injury would result. Plaintiff has cross-appealed, asserting that the trial court erred in denying the motion for joint and several liability, and that a remand is necessary to clarify the court's intentions concerning the award of costs.

¶ 10. We turn first to defendants' contention that the court erred by allowing plaintiff to prove a "specific intent" to injure based on a showing that defendants knew to a "substantial certainty" their conduct would result in injury to plaintiff. See Brueckner, 169 Vt. at 122, 730 A.2d at 1090 (on review of motion for judgment as a matter of law, "the question is whether the result reached by the jury 'is sound in law on the evidence produced.'") (quoting Kinzer v. Degler Corp., 145 Vt. 410, 412, 491 A.2d 1017, 1018 (1995)). As will appear, our resolution of this issue renders the parties' remaining claims moot.

¶ 11. Subject to certain limited exceptions, Vermont's workers' compensation statute provides the exclusive remedy for workplace injuries. 21 V.S.A. § 622.³ The statute represents a "public policy compromise in which 'the employee gives up the right to sue the employer in tort in return for which the employer assumes strict liability and the obligation to provide a speedy and certain remedy' for work-related injuries." Murray v. St. Michael's College, 164 Vt. 205, 209-210, 667 A.2d 294, 298 (1995) (quoting Lorrain v. Ryan, 160 Vt. 202, 214, 628 A.2d 543, 551 (1993)); accord Gerrish, 169 Vt. at 470-71, 739 A.2d at 1197-98; Dunham v. Chase, 165 Vt. 543, 543, 674 A.2d 1279, 1280 (1996) (mem.) ("Under the law, employees gain an expeditious remedy for workplace injuries without...