Tribbett v. Tay Mor Industries, Inc.

• Citation: 471 N.E.2d 332
• Decision Date: 26 November 1984
• Docket Number: No. 2-1083,2-1083
• Parties: Mary Eloise TRIBBETT, Appellant (Plaintiff Below), v. TAY MOR INDUSTRIES, INC., Appellee (Defendant Below). A 376.
• Court: Court of Appeals of Indiana

Page 332

471 N.E.2d 332

Mary Eloise TRIBBETT, Appellant (Plaintiff Below), v. TAY MOR INDUSTRIES, INC., Appellee (Defendant Below).

No. 2-1083 A 376.

Court of Appeals of Indiana Second District.

Nov. 26, 1984.

Florence Anne Briggs, Briggs & Briggs, Flora, for appellant.

Alvin E. Meyer, Christine F. Royce, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellee.

SULLIVAN, Judge.

Mary Eloise Tribbett (Tribbett) appeals from a judgment dismissing her claim pursuant to Trial Rule 12(B)(1), upon the ground that the trial court lacked subject matter jurisdiction.

In her complaint Tribbett alleged that she was an employee of Tay Mor Industries, Inc. (Tay Mor). As part of her work, Tribbett wound coils around her shoulder and thumb. During her employment, Tribbett began experiencing pain in her shoulder and thumb. Surgery was required on the thumb. Tribbett alleged that Tay Mor refused to compensate her for medical bills, for loss of work, and for pain and suffering. She stated that her injuries were the result of Tay Mor's negligence or willfulness in failing to provide her with safe working conditions and safe tools.

Tribbett filed claims with the Industrial Board pursuant to the Workmen's Compensation Act, I.C. 22-3-1-1, et seq., and the Workmen's Occupational Diseases Act, I.C. 22-3-7-1, et seq. Apparently, these claims are still pending. ¹

Tay Mor filed a 12(B)(1) motion to dismiss. The trial court granted the motion, determining that Tribbett's claim was within the exclusive jurisdiction of the Industrial Board pursuant to the Workmen's Compensation Act.

On appeal, Tribbett seeks to present two broad questions: (1) whether the trial court erred in deciding that exclusive jurisdiction rested in the Industrial Board, and (2) whether the relief afforded Tribbett under the Workmen's Compensation Act and the Occupational Disease Act is inadequate and, therefore, denies Tribbett the right to seek redress for a wrong, the right to due process and equal protection of the laws.

Tribbett asserts that the trial court had jurisdiction because:

(1) She alleged an intentional tort committed by the employer and

(2) Intentional torts are outside the scope of the Workmen's Compensation Act and the Occupational Disease Act.

She also asserts that the employer here failed to maintain a safe place to work and that to confine a breach of that duty to the Workmen's Compensation process is to deny adequate redress for such a grievous wrong and serves to shield employers from unconscionable employment practices.

In all of these respects Tribbett particularly points to I.C. 22-3-9-11 ² as support for her position that a judicial civil remedy lies for her claim notwithstanding that the Workmen's Compensation Act has been held to be the exclusive remedy for injuries sustained by an employee arising out of and in the course of employment.

Counsel for Tribbett seeks to persuade this court that her claim asserts commission of an intentional tort against her. Yet the only allegations made in support of this argument are that Tay Mor failed to provide safe tools and safe working conditions and that Tribbett was required to wind coils around her thumb and shoulder. These statements are wholly insufficient to support the allegation of an intentional act. A naked allegation of an intentional tort is not adequate to permit a claimant to avoid the exclusive remedy provision of the Workmen's Compensation Act.

The facts and allegations of this case are similar to those of Blade v. Anaconda Aluminum Co., Inc. (1st Dist.1983) Ind.App., 452 N.E.2d 1036. There the plaintiff alleged that the employer had intentionally violated safety regulations, resulting in the death of plaintiff's husband. The plaintiff sought to bring a civil suit against the employer. This court held that her exclusive remedy was the Workmen's Compensation Act.

In Blade, the court determined that, although there was an inference that Anaconda had intentionally jeopardized the safety of its employees, the plaintiff alleged no facts supporting her assertion that Anaconda had intentionally created unsafe working conditions toward the end that the decedent be injured. An elaboration of this distinction was made in Cunningham v. Aluminum Company of America (1st Dist.1981) Ind.App., 417 N.E.2d 1186. There Dean Prosser was quoted with respect to the concept of intent in tort law:

"[T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton but it is not classed as an intentional wrong."

Cunningham, supra at 1190. No support for Tribbett's allegation of an intentional tort was contained in her complaint.

The decisions of the First District in Cunningham and Blade impliedly agree with the conclusion of the U.S. Circuit Court of Appeals for the Seventh Circuit in North v. United States Steel Corp. (7th Cir.1974) 495 F.2d 810 which held that the exclusive remedy provisions of the Indiana Workmen's Compensation Act effectively negated the provisions of the Employer's Liability Act which afforded civil judicial relief for violations of an employer's duty to provide a safe place of employment. See also Ross v. Schubert (4th Dist.1979) 180 Ind.App. 402, 388 N.E.2d 623, tr. denied.

If the law is to be otherwise, it is within the prerogative of our supreme court to lend renewed vitality, if not preemptive effect, to the Employer's Liability Act in matters such as before us. Or it is within the prerogative of the General Assembly to make a clear declaration of policy.

In any event, we are unable to hold that the allegations of Tribbett's complaint place the claim outside the scope of the Workmen's Compensation Act so as to authorize the Cass Circuit Court to entertain it.

The simultaneous prosecution of Tribbett's claim or claims before the Industrial Board and before the Cass Circuit Court serve only to complicate resolution of the matter. To the extent that she...