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The Mississippi Supreme Court decided an interesting workplace injury case.

There’s a fascinating group of opinions (unanimous as to result) in Thursday’s Supreme Court decision list about injuries to workers and the circumstances where workplace injuries are not limited to worker’s compensation.

One rule-of-thumb lawyers carry in their heads is that worker’s compensation is the “exculsive remedy” against an employer for workplace injuries.  This case is about when that rule of thumb does not apply.  The exception is where an employer commits an intentional tort that injures a worker.  In Mississippi, worker’s comp is the only remedy unless the employer actually intended injury.  Conduct that is reckless to the employees is inadequate to escape the “exclusive remedy” rule.  Thus, as the circuit judge who tried the case (Judge Howorth) noted in granting a punitive damages instruction in the case, there is a tougher burden of proof to get around the “exclusive remedy” rule than there is to get a punitive damages instruction.

Some examples might show the difference.  An employer adopting use of a new chemical and failing to read label warnings might be negligent.  Failing to take steps to deal with chemical exposure after complaints and other warnings show there might be a problem with exposure might be recklessness (basically, it’s the knowing lack of regard for the consequences of negligence that turn it into recklessnes).  Actually setting up and designing factory conditions that make it worse after the warnings and complaints make the conduct intentionally harmful.

It’s the last variety of conduct that the employees proved occurred here.

In the case decided Thursday, Franklin Corp. v. Tedford, a furniture factory in Calhoun County switched to a new type of glue that went on faster and cheaper.  The glue came with all kinds of warnings about extended exposure, particularly as to one particular component.  The factory managers made a series of decisions that combined failing to get any ventilation for the areas where the glue was in use, with confining the glue spraying– setting up barriers and screening so the fumes would be concentrated in the areas where the glue was in use.   Workers using the glue in the spray booths repeatedly complained.

It is the decision to continue the use in face or repeated warnings and complaints, resulting in neurological injury to the plaintiffs, that caused the court to conclude that the plaintiffs had proved intentional torts (battery and intentional infliction of emotional distress) that established the case was outside the workers compensation “exclusive remedy.”

The court’s opinion (by Randolph) starts with a good history of Mississippi’s workers compensation statute, setting it in historical context.  There are two interesting concurrences, one by Graves and one by Dickinson.

The first issue is whether this employer’s conduct involved sufficient intent to injure.  The second issue was about whether the plaintiff’s experts should have been allowed to testify; while it discusses Daubert, a reader does not come away with a clearer view about how the requirement that there be scientific method and consensus applies in Mississippi courts.  The third issue involves jury instruction error, and the fourth whether punitive damages should have been allowed.

On the instruction issue, there were several plaintiff instructions that told the jury the defendant could be liable if Franklin “either desired to cause the consequences of its acts, or believed that the consequences were substantially certain to result from it.”  This, the majority opines, is not the law– the defendant’s conduct must have involved intent to injure and not just substantial certainty of injury.  However, because the defense was granted contradictory but correct instructions and a special verdict (a verdict asking the jury to make specific findings about liability by answering questions about the elements each side had to prove) with the correct standard in it, the majority opinion cited the rule that where the instructions read as a whole are correct, it won’t reverse.

Justice Graves concurs on this point, agreeing with the result– he would affirm– but because he would find that the employer should be liable for conduct substantially certain to injure employees.

Justice Dickinson concurs raising a couple of issues.  First, he states that the law is clear that actual intent to injure is required to escape the exclusivity bar.  Second, he notes that what we have here is an affirmative defense, and that Franklin should have raised that and had the burden of proof on its affirmative defense.  That’s an interesting observation– he’s essentially saying that the plaintiffs could prove up its intentional tort, get instructions on that, and the defense would have to ask for instructions that the intentional tort wasn’t bad enough to escape the exclusivity bar. I think that’s inarguable.  Four justices join this concurrence, meaning it has the endorsement of a majority.  Justice Waller joins in part.  Which part? He does not say.

I’ve a couple of observations about the case.  First, the application of the rule the court uses to not reverse for jury instruction error– that an erroneous instruction is ok when it’s contradicted elsewhere by correct instructions– is an exception that seems to have swallowed the rule, and encourages trial courts dealing with instructions to grant ’em all and let the jury sort out what the rules might be.  The “read-the-instructions-as-a-whole” rule needs to be wielded more carefully.  Second, all things being equal, I’d prefer vastly Justice Graves’s formulation, and hold that an employer who intentionally acts in a way that is substantially certain to cause injury has committed an intentional tort that is outside worker’s compensation exclusivity.  Third, I haven’t gone back and looked at the cases, but reading the court’s recounting of them leaves a distinct impression that the court has opened the “intentional tort” exception to workers compensation exclusivity up just a little wider.

I see that Professor John Robin Bradley of the University of Mississippi Law School was one of the lawyers for the workers.  He would have taught anyone who had workers compensation as a class at Ole Miss since the 70s.

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