Richey v. Hammond Conservancy Dist.

• Decision Date: 28 January 2015
• Docket Number: 32,847.
• Citation: 346 P.3d 1183
• Parties: Marshall RICHEY, Plaintiff–Appellant, v. HAMMOND CONSERVANCY DISTRICT, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

346 P.3d 1183

Marshall RICHEY, Plaintiff–Appellant

v.HAMMOND CONSERVANCY DISTRICT, Defendant–Appellee.

32,847.

Court of Appeals of New Mexico.

Jan. 28, 2015.

Alexander A. Wold, P.C., Alexander A. Wold, Jr., Albuquerque, NM, for Appellant.

Miller Stratvert, P.A., Timothy R. Briggs, Luke A. Salganek, Albuquerque, NM, for Appellee.

OPINION

ZAMORA, Judge.

{1} The Opinion filed on October 15, 2014 is withdrawn, and the following Opinion is substituted in its place.

{2} Plaintiff, Marshall Richey, appeals from the district court's grant of Defendant's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 1–012(B)(6) NMRA. Plaintiff contends that the district court erred in concluding that the facts alleged in his amended complaint failed to state a claim within the exclusivity exception to the New Mexico Workers' Compensation Act (the Act), as recognized in Delgado v. Phelps Dodge Chino, Inc., 2001–NMSC–034, 131 N.M. 272, 34 P.3d 1148. We hold that the allegations in the amended complaint are sufficient to satisfy Rule 1–012(B)(6). We therefore reverse and remand for further proceedings.

BACKGROUND

{3} Plaintiff was injured while working for Hammond Conservancy District (Defendant), and filed a personal injury claim pursuant to Delgado. Plaintiff pleaded the following facts in his amended complaint. In 2010, Plaintiff worked for Employee Connections, Inc., as a temporary worker. On October 18, 2010, Employee Connections “loaned” Plaintiff to Hammond Conservancy District (Defendant) as a temporary worker. At Defendant's direction, Plaintiff used a small-diameter, short-nozzle, high-pressure water hose to clean culverts used for flood control. Prior to that date, several workers, including Plaintiff, had advised Defendant that the hose was very difficult to control and had reported “near misses of serious injury and death.” The workers, including Plaintiff, warned Defendant that injury from using the hose to clean out culverts was “certain to result.” In spite of the workers' protests and over Plaintiff's objections, Defendant directed Plaintiff to use the hose to clean the culvert. The hose “failed to prevent the loss of control” and, as a result, water from the high-pressure hose was “injected directly into ... Plaintiff,” causing severe injuries.

{4} Plaintiff alleged that Defendant knew the assigned task was virtually certain to cause injury or death and that compelling him to perform the task in spite of the numerous employee complaints and objections was egregious. Plaintiff also alleged that Defendant's egregious conduct was the direct, natural, and proximate cause of his injuries.

{5} Defendant moved to dismiss pursuant to Rule 1–012(B)(6), arguing that Plaintiff's claims were barred by the exclusivity provisions of the Act and claiming governmental immunity under the Tort Claims Act, NMSA 1978, §§ 41–1–1 to –30 (1976, as amended through 2013). Plaintiff moved to stay Defendant's Rule 1–012(B)(6) motion pending discovery. The district court held a hearing on Plaintiff's motion to stay, and Plaintiff was permitted to amend his complaint. The parties completed briefing on Defendant's motion to dismiss. After conducting a hearing on the motion, the district court dismissed Plaintiff's claims with prejudice pursuant to Rule 1–012(B)(6). This appeal followed.

DISCUSSION

{6} The fundamental question presented in this appeal is whether Plaintiff's amended complaint included facts sufficient to state a claim under Delgado. To resolve this question, it is necessary to first examine the evolution of New Mexico's intentional conduct exception to Worker's Compensation exclusivity.

The Intentional Conduct Exception to Worker's Compensation Exclusivity

{7} The purpose of the Act's exclusivity provision is to achieve balance between injured workers' need for compensation and employers' need to limit liability for work-related injuries. Coates v. Wal–Mart Stores, Inc., 1999–NMSC–013, ¶ 24, 127 N.M. 47, 976 P.2d 999. However, the Act's exclusivity does not preclude claims against employers that intentionally inflict injury upon workers. Id.

{8} Prior to our Supreme Court's decision in Delgado in 2001, worker injuries were only compensable outside the Act if the injured worker could demonstrate the employer's actual intent to injure the worker. See Coleman v. Eddy Potash, Inc., 1995–NMSC–063, ¶ 26, 120 N.M. 645, 905 P.2d 185, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148 ; see also Flores v. Danfelser, 1999–NMCA–091, ¶ 17, 127 N.M. 571, 985 P.2d 173, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148 ; Johnson Controls World Servs., Inc. v. Barnes, 1993–NMCA–004, ¶ 12, 115 N.M. 116, 847 P.2d 761, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148 ; Maestas v. El Paso Natural Gas Co., 1990–NMCA–092, ¶ 9, 110 N.M. 609, 798 P.2d 210, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148 ; Gallegos v. Chastain, 1981–NMCA–014, ¶ 5, 95 N.M. 551, 624 P.2d 60, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148 ; Sanford v. Presto Mfg. Co., 1979–NMCA–059, ¶ 14, 92 N.M. 746, 594 P.2d 1202, overruled by Delgado, 2001–NMSC–034, ¶ 23 n. 3, 131 N.M. 272, 34 P.3d 1148. Our courts adopted this actual intent test from Professor Larson's treatise, Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 103.03 (2000). Delgado, 2001–NMSC–034, ¶ 16, 131 N.M. 272, 34 P.3d 1148.

Delgado

{9} In 2001, our Supreme Court decided Delgado, which changed the law by broadening the exclusivity exception. Padilla v. Wall Colmonoy Corp., 2006–NMCA–137, ¶ 9, 140 N.M. 630, 145 P.3d 110. In Delgado, the worker was ordered by his supervisor to remove a fifteen-foot iron cauldron brimming over with molten slag, without shutting down a furnace or otherwise correcting an especially dangerous emergency “runaway” condition that caused additional slag to continue flowing. 2001–NMSC–034, ¶ 4, 131 N.M. 272, 34 P.3d 1148. Although the worker protested the orders, and informed the supervisor that he was not qualified or competent to perform the removal because he had never operated a kress-haul (a special truck for removing the cauldron) alone under such conditions, the supervisor insisted he proceed. Id. ¶ 5. The worker “emerged from the smoke-filled tunnel, fully engulfed in flames,” suffering third-degree burns over his entire body. Id. He later died of his injuries. Id.

{10} The Court examined the actual intent test, and rejected it as unbalanced in favor of employers. See id. ¶ 23 (“Under the actual intent test, a single standard of culpability, namely willfulness, will prevent a worker from benefitting from the Act while preserving the corresponding benefits for the employer. This bias violates the explicit mandate of Section 52–5–1, which demands the equal treatment of workers and employers.”) In order to address the egregious conduct of the employer in that case, and to restore balance and equality to the Act, the Supreme Court set forth a new test for determining when conduct falls outside the scope of the Act:

[W]illfulness renders a worker's injury non-accidental, and therefore outside the scope of the Act, when: (1) the worker or employer engages in an intentional act or omission, without just cause or excuse, that is reasonably expected to result in the injury suffered by the worker; (2) the worker or employer expects the intentional act or omission to result in the injury, or has utterly disregarded the consequences; and (3) the intentional act or omission proximately causes the injury.

Delgado, 2001–NMSC–034, ¶¶ 23, 24, 26, 131 N.M. 272, 34 P.3d 1148.

{11} The first element of the Delgado test looks at “whether a reasonable person would expect the injury suffered by the worker to flow from the intentional act or omission.” Id. ¶ 27. The second element “requires an examination of the subjective state of mind of the worker or employer.” Id. ¶ 28. This element is satisfied when the worker or employer either failed to consider the consequences of the intentional act or omission, or considered the consequences and expected the injury to occur. Id. This element is not satisfied where “the worker or employer considered the consequences and negligently failed to expect the worker's injury to be among them.” Id. Finally, the third element requires proximate cause. Id. ¶ 29.

Morales

{12} In Morales v. Reynolds, 2004–NMCA–098, 136 N.M. 280, 97 P.3d 612, this Court consolidated and decided the first two cases involving Delgado claims reaching us after the Delgado decision. Morales, 2004–NMCA–098, ¶¶ 1, 10, 136 N.M. 280, 97 P.3d 612. The Morales case was an appeal from a district court's grant of summary judgment in favor of the employer. Id. ¶ 3. The Fernandez case appealed a district court's dismissal for failure to state a claim. Id. ¶ 5.

{13} Our focus in Morales was on “the procedural and evidentiary requirements a plaintiff must meet in order to overcome a motion to dismiss or for summary judgment.” Dominguez v. Perovich Props., Inc., 2005–NMCA–050, ¶ 16, 137 N.M. 401, 111 P.3d 721. To determine whether the workers' claims met the Delgado requirements as a matter of law, we considered the type of employer conduct Delgado sought to deter. Morales, 2004–NMCA–098, ¶ 10, 136 N.M. 280, 97 P.3d 612.

{14} Because the Delgado Court did not elaborate on the type of employer conduct that would render a worker's injury compensable under the new test, we looked to the facts of that case for guidance. Morales, 2004–NMCA–098, ¶ 9, 136 N.M. 280, 97 P.3d 612. We determined that the Delgado decision stemmed from “a combination of deadly conditions, profit-motivated disregard for easily implemented safety measures, complete lack of worker training or preparation, and outright denial of assistance to a worker in a terrifying situation.” Morales, 2004–NMCA–098, ¶ 10, 136 N.M. 280, 97 P.3d 612.

{15} We concluded Delgado plaintiffs ...