Beauchamp v. Dow Chemical Co.

LEVIN, J.

The questions presented are whether the exclusive remedy provision of the Workers' Disability Compensation Act bars an employee from commencing a civil action against his employer where the employee alleges (1) that the employer committed an intentional tort against the employee, and (2) that the employer breached its contract to provide a safe workplace.

I

Plaintiff Ronald Beauchamp was employed for two years as a research chemist by defendant Dow Chemical Company. He applied for workers' compensation benefits, alleging impairment of normal bodily functions caused by exposure to tordon, 2, 4-D, and 2, 4, 5-T ("agent orange").

Ronald Beauchamp and his wife, Karen, thereafter commenced this civil action against Dow. The complaint alleged that Ronald Beauchamp had been physically and mentally affected by exposure to "agent orange" and that Karen Beauchamp had suffered loss of consortium. The complaint further alleged that Dow intentionally misrepresented and fraudulently concealed the potential danger, that Dow intentionally assaulted Ronald Beauchamp, that Dow intentionally inflicted emotional distress, and that Dow breached its contract to provide safe working conditions. The circuit court granted summary judgment for Dow on all four counts on the basis that the complaint failed to state a claim on which relief could be granted. It does not appear that there had been any discovery.

The decision of the Court of Appeals, reversing in part and affirming in part, was "premised on . . . [its] understanding that an allegation of a 'true' intentional tort is not within the exclusive remedy provision of the [Workers' Disability Compensation Act]." A "true" intentional tort, as defined by the Court of Appeals, is one in which the injury, as well as the act, was intended. Apparently applying this distinction, the Court of Appeals reversed the judgment of the circuit court and remanded the cause for trial on the intentional infliction of emotional distress count. The Court of Appeals also reversed and remanded for trial on the breach of contract claim, stating that a contract claim was not barred by the exclusive remedy provision of the act. The Court of Appeals affirmed the dismissal by the circuit court of the other two tort counts.

We conclude that the contract claim is barred by the exclusive remedy provision and remand for further proceedings on the intentional tort claims.

IV

We conclude that actions for intentional torts are not barred. Before the workers' compensation act was enacted, employers were liable for intentional torts they committed against their employees. The workers' compensation act, as explained above, was a comprehensive restructuring of the mechanism for dealing with accidental injuries. The Legislature did not intend "that the exclusive remedy section of the act be construed to preclude a plaintiff's recovery for injuries suffered in an intentional tort. . . ."

The accident requirement assures that neither the employee nor the employer can use the workers' compensation act as a means of benefiting from their own intentional misconduct. Excluding recovery for self-inflicted injuries because self-inflicted injuries are not accidents is consistent with preventing employers from using the exclusive remedy provision of the act to shield them from civil suits for their intentional torts, because intentional torts are also not accidents. The employee will not be heard to claim his injury was an accident when the employee intentionally injured himself. Employers will not be heard to suggest that the exclusive remedy provision shields them from civil actions for intentional torts they commit against their employees, because, as Professor Larson has explained, "If the incident gets into court not as a compensation claim but as a damage suit by the employee against an employer-assailant, it is the employer who must affirmatively plead the exclusiveness of the act as a defense. To do this he must allege that the injury was an accident -- and how can he do this, when he himself has deliberately produced it?"

Dow has argued that the workers' compensation act embodies a quid pro quo, and the employer's quid is absolute immunity from liability other than that provided for in the workers' compensation act. Taken out of context, the language of the exclusivity provision lends apparent support to Dow's position: "The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer." Nevertheless, the legislative history indicates the quid pro quo concerned accidents; intentional torts by employers were never part of the bargain struck.

Turning our focus to theorization about what the Legislature would or might have done had it considered intentional torts when it was addressing the problem of accidents, we doubt that the Legislature would have included intentional torts within the ambit of the exclusivity provision. Including intentional torts within the exclusivity provision would mean the Legislature intended to limit substantially an employee's recovery for intentional injury inflicted by the employer. It would mean that the Legislature not only intended to limit the employer's liability, but also intended to allow "an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers." Intentional misconduct would seem to be the type of behavior the Legislature would most want to deter and punish. Including intentional torts within the exclusivity provision would in that sense be counterproductive.

Because the Legislature intended to limit and diffuse liability for accidental injury by no means suggests the Legislature intended to limit and diffuse liability for intentional torts. Accidents are an inevitable part of industrial production; intentional torts by employers are not.

VI

Although a number of courts have agreed that the exclusivity provision of a workers' compensation act does not preclude employees from bringing intentional tort actions against their employers, the courts have not been able to agree on a definition of "intentional" in this context. Some courts have limited the recovery to so-called "true intentional torts," that is, when the employer truly intended the injury as well as the act. Other courts have relied on the standard in the Restatement of Torts, 2d, stating that when the employer intended the act that caused the injury and knew that the injury was substantially certain to occur from the act, the employer has committed an intentional tort. The substantial certainty test has apparently been extended by at least one state to cover substantial likelihood of injury.

A

The Court of Appeals in the instant case declared, "In order to allege an intentional tort outside the act, the plaintiff must allege that the employer intended the injury itself and not merely the activity leading to the injury." A number of states have adopted a similar intentional tort test requiring an actual intent to injure.

B

The "substantial certainty" line of cases defines intentional tort more broadly. An intentional tort "is not . . . limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." It does not matter whether the employer wishes the injury would not occur or does not care whether it occurs. If the injury is substantially certain to occur as a consequence of actions the employer intended, the employer is deemed to have intended the injuries as well. The substantial certainty test tracks the Restatement definition of an intentional tort.

C

The recent People v Film Recovery Systems case decided in Illinois adds a new perspective to the different intentional tort standards. The facts in the case were as follows: Film Recovery Systems went into the business of recovering silver from film negatives. This was done by placing the negatives into vats of cyanide. Hydrogen cyanide gas would bubble up from the vats and there was inadequate ventilation. The employer knew about the dangers. The labels on the chemicals being used contained adequate warnings; as a result, the employer hired only employees who could not speak or read English. The workers complained about the fumes daily. In 1981, an inspector had warned that the operation had outgrown the plant. The employer's response was to move the executive offices while tripling the size of the operations. Eventually one worker died and several others were seriously injured because of hydrogen cyanide poisoning. The corporate officers were convicted of involuntary manslaughter.

The facts in this case are a good example of the type of employer conduct that would seem to meet the substantial certainty as well as a substantial likelihood of harm standard. It is questionable, however, whether even this outrageous conduct would constitute a "true intentional tort." The employer did not desire to injure or kill the employees, even though the employer knew with a substantial certainty that his conduct would injure the employees.

D

Selecting the appropriate intentional tort test is difficult. The problem with the substantial certainty test is that it is difficult to draw the line between substantial certainty and substantial risk. In applying the substantial certainty test, some courts have confused intentional, reckless, and even negligent misconduct, and therefore blurred the line between intentional and accidental injuries. The true intentional tort standard keeps the distinction clear.

We adopt the substantial certainty standard. In an effort to avoid the misapplication of that test illustrated by the Ohio line of cases, we stress that substantial certainty should not be equated with substantial likelihood. The facts in Serna and Film Recovery Systems are examples of what would constitute substantial certainty.

VIII

The second issue presented is whether the exclusivity provision of the workers' compensation act precludes a common-law civil action by an employee who alleges that his employer breached a contractual promise to provide safe working conditions.

A claim that an injury is caused by failure to provide safe working conditions is essentially a recasting in contract form of a claim that the employee was injured by the employer's negligence. It is not even a recasting in contract form of an intentional tort. The workers' compensation act provides a quid pro quo for accidental injury. Limited but certain compensation for accidental injuries caused by unsafe working conditions has been substituted for the right to sue for accidental injuries caused by unsafe working conditions. Allowing a civil action as well as compensation for an injury caused by failure to provide safe working conditions would alter the balance struck by the legislation.

We hold that the "all-inclusive character of the exclusiveness principle results in barring actions for covered injuries even though the plaintiff casts his action in the form of a breach of some kind of contract."

Remanded to the circuit court for further proceedings consistent with this opinion. We do not retain jurisdiction.