Johnson v. Mountaire Farms of Delmarva, Inc.

COLE, Judge. In this case, we shall decide whether the Workmen’s Compensation Act (the Act) permits an employee to sue his ²⁴⁸ employer for a deliberate, intentional injury where the injury is caused by the reckless, wanton or wilful misconduct of the employer resulting in unsafe working conditions. The facts generating this question may be stated briefly. Rodney Adams, age sixteen, was employed by Mountaire Farms of Delmarva, Inc. (Mountaire) at its farm in Somerset County.

On June 3, 1981, Rodney was electrocuted while using a sump pump to remove liquid chicken fat and water from a ground depression. Approximately two months before Rodney was electrocuted, the Maryland Occupational Safety and Health Administration (MOSHA) cited Mountaire for a “serious violation” under Maryland Code (1957, 1979 Repl.Vol.), Art. 89, § 40(b). 1 The serious violation arose because of several defective and dangerous parts of the sump pump’s electrical connections: the sump pump cord’s outer covering was broken; the insulation on the conductor was damaged and exposed the conductor itself; the cord was spliced on each end; and the plug lacked a ground prong. After the citations were issued, Mountaire informed MOSHA that the serious violation had been corrected. This was as a matter of fact untrue.

On January 17, 1983, Nancy Johnson, individually and as personal representative of the estate of her son, Rodney, filed a wrongful death and survivorship action against Mountaire in the Circuit Court for Somerset County. The suit alleged that Mountaire’s conduct satisfied the requirement of Art. 101, § 44, that the injury or death resulted “from the deliberate intention of his employer to produce such injury or death____” Mountaire filed a general issue plea and a special issue plea contending that the allegations of the declaration did not satisfy the “deliberate intention to injure” requirement of § 44. The circuit court agreed with Mountaire and dismissed the case. Johnson appealed to the ²⁴⁹ Court of Special Appeals and also filed a petition for writ of certiorari with us.

We granted Johnson’s writ prior to consideration by the intermediate appellate court. Legislation dealing with workmen’s compensation has been a part of our law since 1914, when the General Assembly determined that the common law tort system was an inadequate and unsatisfactory means for compensating workers who were injured in the course of their employment. Prior to the enactment of the Workmen’s Compensation Act, an employee’s sole remedy against his employer for injuries sustained during the course of his employment was to bring a common law suit against his employer. Because these suits were subject to the employer’s defense of contributory negligence, assumption of risk, and the fellow servant rule, the majority of industrial accidents remained uncompensated.

Prosser and Keeton on The Law of Torts § 80 (W. Keeton 5th ed. 1984). Additionally, workmen and employers were forced to pay the costs of litigation and taxpayers were forced to pay part of the cost for maintaining courts to determine the question of responsibility. To avoid these unnecessary evils, 2 the General Assembly passed the Workmen’s Compensation Act to compensate ²⁵⁰ workers who were injured in the course of their employment. See Victory Sparkler Co. v. Francks, 147 Md. 368, 373 , 128 A. 635, 636 (1925).

In the course of enacting the Act, the General Assembly struck a delicate balance between workers and employers. Workers lost their right to sue their employers for negligence but gained the right to quick and certain compensation for injuries sustained during the course of their employment, regardless of fault. See Wood v. Aetna Casualty & Surety Co., 260 Md. 651, 660-61 , 273 A.2d 125, 131 (1971); Victory Sparkler Co., supra, 147 Md. at 376-77 , 128 A. at 638 . In return, employers lost their defenses of contributory negligence, assumption of risk, and fellow servant rule but gained the advantage of having their liability limited.

Wood, supra, 260 Md. at 660-61 , 273 A.2d at 131 ; Victory Sparkler Co., supra, 147 Md. at 376-77 , 128 A. at 638 ; see also 2A A. Larson, The Law of Workmen’s Compensation § 65.11 (1983). Maryland Code (1957, 1985 Repl.Vol.), Art. 101, § 15 sets forth the duties of employers and the restrictions of their liability. It states: Every employer subject to the provision of this article, shall pay or provide as required herein compensation according to the schedules of this article for the disability or death of his employee resulting from an accidental ²⁵¹ personal injury sustained by the employee arising out of and in the course of his employment without regard to fault as a cause of such injury, except where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty. Where the injury is occasioned by the wilful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty, neither the injured employee nor any dependent of such employee shall receive compensation under this article.

The liability prescribed by the last preceding paragraph shall be exclusive.... 3 [Emphasis supplied.] Aside from the exceptions created by the Act itself, the terms of the Act are the exclusive remedy of employees who come within its jurisdiction. Lowery v. McCormick Asbestos Co., 300 Md. 28, 40-41 , 475 A.2d 1168, 1175 (1984); Wood, supra, 260 Md. at 661 , 273 A.2d at 131 ; Victory Sparkler Co., supra, 147 Md. at 375 , 128 A at 637. The relevant exception to the Workmen’s Compensation Act in the case at bar is Art. 101, § 44, which provides: If injury or death results to a workman from the deliberate intention of his employer to produce such injury or death, the employee, the widow, widower, child, children or dependents of the employee shall have the privilege either to take under this article or have cause of action against such employer, as if this article had not been passed. Each employee (or in the case of death his family or dependents) entitled to receive compensation under this article shall receive the same in accordance with the following schedule and except as in this article otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever. ²⁵² Mrs!

Johnson argues that the legislature intended that the deliberate intent necessary to take an injury out of the workmen’s compensation limitation exists when it is shown that an employer was grossly negligent and provided unsafe working conditions. This Court addressed this “deliberate intention” issue previously in Hagerstown v. Schreiner, 135 Md. 650 , 109 A. 464 (1920) and held: “As against an employer who has provided the insurance and who has not ‘from deliberate intention produced such injury, or death’ the remedy by compensation under the act is exclusive.” Id. at 653 , 109 A. at 465 . The Court has not specifically addressed what the term “deliberate intention” means. There are many cases from other jurisdictions which have addressed this issue, however, and the vast majority of these jurisdictions have concluded that a “deliberate intention” to cause an employee’s injury implies the formation by the employer of a specific intention to cause injury or death combined with some action aimed at accomplishing such result, as opposed to mere employer negligence or gross negligence.

Only two jurisdictions, West Virginia and Ohio, have decided that something less than an outright specific intention on the employer’s part to cause an injury may be sufficient to satisfy the “deliberate intention” requirement. Mrs. Johnson relies on the principal case from each of these states to sustain her argument that it was error to dismiss her suit. In Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695 , 246 S.E.2d 907 (1978), the Supreme Court of Appeals of West Virginia held that the statute permitting damage suits against the employer “if the injury or death of such employee results from the deliberate intent of the employer to produce such injury or death” also permits suit for “wilful, wanton and reckless misconduct.” Id. at 706 , 246 S.E.2d at ²⁵³ 914. Thus, the high court held that the three cases 4 it had consolidated were erroneously dismissed.

In Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608 , 433 N.E.2d 572 (1982), the Ohio Supreme Court held that employees and their spouses could sue their employer in tort for the intentional use of chemicals the employer knew were harmful, and for failure to warn and to report the dangerous conditions to federal and state agencies as required. Ohio apparently allows an intentional tort action to proceed where the employer knows or should know that harm may occur as a consequence of work at an unsafe work place. Johnson essentially is asking this Court to broaden Maryland’s intentional tort exception and to adopt the minority view. We decline her invitation.

Article 101 of the Code has been the law of Maryland for seventy years and has not been modified by the legislature or the courts to permit a lawsuit against a negligent employer. Under Maryland law, the exclusive remedy for an employee who is injured during the course and within the scope of his employment is to file a claim under the provisions of the Workmen’s Compensation Law. In other words, as we see it, § 15 of the Act does not permit the “common law” liability of the employer to include accidental injuries caused by the gross, wanton, wilful or reckless negligence of the employer, except when such injury is intentional as described in § 44. Reckless, wanton or wilful misconduct differs from intentional wrongdoing.

As stated in Comment f of the Restatement (Second) of Torts, § 500 (1965): ²⁵⁴ While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there „is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results. [Emphasis supplied.] Professor Larson puts it this way: Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character. 2A A. Larson, supra, § 68.13, at 13-22 to 26 (emphasis supplied, footnotes omitted). In describing intentionally tortious conduct, the late Dean Prosser noted: “Intent” is the word commonly used to describe the purpose to bring about stated physical consequences____ [I]ntent is broader than a desire or purpose to bring' about physical results.

It extends not only to those consequences which are