Sanford v. Presto Mfg. Co.
| Decision Date | 19 April 1979 |
| Docket Number | No. 3775,3775 |
| Citation | 92 N.M. 746,594 P.2d 1202,1979 NMCA 59 |
| Parties | Margaret H. SANFORD, Plaintiff-Appellant, v. PRESTO MANUFACTURING COMPANY, a Mississippi Corporation, Defendant-Appellee. |
| Court | Court of Appeals of New Mexico |
Plaintiff sought damages from her employer on the basis of injuries allegedly received while at work. Defendant moved to dismiss on the basis that plaintiff's exclusive remedy was under the Workmen's Compensation Act. The motion was granted; plaintiff appeals. The issue is whether plaintiff's complaint, which alleges that the employer committed a battery upon plaintiff, states a basis on which the employer could be held liable to plaintiff, outside of the Workmen's Compensation Act.
Mountain States Tel. & Tel. Co. v. Montoya, 91 N.M. 788, 581 P.2d 1283 (1978) reaffirmed the view that, if the Workmen's Compensation Act provided a remedy for an employee's injury, the workmen's compensation law was the exclusive remedy when an employee sought to recover from the employer.
Plaintiff's claim is that the Workmen's Compensation Act does not apply. Section 52-1-9, N.M.S.A.1978 makes the Workmen's Compensation Act the exclusive remedy for an injury caused by accident. Plaintiff claims the alleged battery was an intentional injury and, thus, not an accidental injury. See 2A Larson, Workmen's Compensation Law, § 68.11 (1976). Plaintiff's theory has been recognized, but on a limited basis. Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930). Plaintiff's claim does not come within that limited basis.
Plaintiff's complaint alleges: (1) on September 2, 1976 defendant intentionally placed into use "a new oven for baking teflon on small appliances"; (2) the oven was operated "under the authorization of the Defendant"; (3) when in use, the new oven "created" toxic fumes "at a density which was dangerous to human health"; (4) the toxic fumes were easily discernible; (5) defendant, and its agents and employees knew, from September 2, 1976, that use of the oven created toxic fumes; (6) that plaintiff was exposed to the fumes while working for defendant and "did not consent to the offensive or dangerous touching by these toxic fumes; (7) that due to exposure to the fumes, defendant developed "fume fever" to her damage; and (8) "this battery was intentionally or maliciously committed . . . ."
In essence, plaintiff's claim goes to intended working conditions.
The claim, that defendant's intentional use of the oven amounted to a battery, does not aid plaintiff.
We are not concerned that the alleged battery was not a direct application of force. Prosser, Laws of Torts (4th ed. 1971) pages 34-35 states: "(I)t is no longer important that the contact is not brought about by a direct application of force such as a blow, and it is enough that the defendant sets a force in motion which ultimately produces the result . . . ."
Our concern is with the nature of a battery claim. For there to be a battery, there must be an unpermitted contact. Prosser, supra, page 35. "The gist of the action for battery is not the hostile intent of the defendant, but rather the absence of consent to the contact on the part of the plaintiff." Prosser, supra, page 36. The fact that plaintiff did not consent provides no support for plaintiff's claim because her claim is based on intentional conduct of the employer. Labeling the employer's conduct as a battery does not aid in determining whether that conduct exposed the employer to liability outside of the Workmen's Compensation Act.
Only certain types of conduct expose the employer to liability outside of the workmen's compensation law. In Boek v. Wong Hing, supra, the employer was liable for common-law damages because the employer intentionally and maliciously inflicted injury by striking the employee with a broom handle. In Bryan v. Utah International, 533 P.2d 892 (Utah 1975), plaintiff claimed that a co-employee intentionally caused plaintiff to be hit by a cable, that intentional misconduct of this sort had been going on for considerable time and was known by various supervisors of the defendant corporation. These claims were an insufficient basis for holding the employer liable outside of the workmen's compensation law. Because of differences in the alleged facts, neither Boek v. Wong Hing, supra, nor Bryan v. Utah International, supra, is applicable.
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