Wyoming: Employee’s Intentional Tort Action Against Supervisors Fails

Construing the intentional injury exception to the exclusive remedy provisions of the Wyoming Workers’ Compensation Act [Wyo. Stat. Ann. § 27–14–104(a) (LexisNexis 2013)], the state’s Supreme Court recently affirmed a trial court’s grant of summary judgment favoring two co-employee supervisors who had been sued by an employee (and the employee’s spouse) after the employee was hit and dragged by an asphalt paving machine [Vandre v. Kuznia, 2013 WY 127, 2013 Wyo. LEXIS 132 (Oct. 11, 2013)]. Agreeing that the injured employee failed to show that the co-employees intentionally acted to cause the plaintiff-employee physical harm and that there was no evidence presented showing that the supervisors had knowledge of, and intentionally disregarded, the danger associated” with the incident, the high court agreed that no genuine issues of material fact existed and the co-employee supervisors were accordingly entitled to judgment as a matter of law.  

Plaintiffs filed their action alleging the employee’s supervisors acted willfully and wantonly because the supervisors knew that an attachment to the front of the paver created a blind spot, but failed to act and merely followed the same course of conduct taken for many years when mobilizing the piece of machinery. Plaintiffs also alleged that the supervisors allowed the paver to be driven by an inexperienced operator and that such conduct on the part of the supervisors exposed the employee to unnecessary and heightened risk of harm or injury. The district court granted summary judgment in favor of the co-employee supervisors, determining they did not intentionally act to cause physical harm.

That the supervisors knew of the blind spot not satisfy the test for co-employee liability under the Wyoming Worker’s Compensation Act, indicated the high court. The court added that while the co-employee supervisors’ knowledge of the blind spot and their direction for an experienced operator to drive the paver to a staging area without additional precautions, such as flaggers, may arguably have been a thoughtless error in judgment, it did not rise to the level of willful misconduct. In fact, indicated the court, there was no evidence demonstrating that the supervisors knew of the hazard or serious nature of the risk involved in directing the operator to move the paver under the circumstances, nor was there any evidence that anyone–the co-employee supervisors, the injured employee, or the paver operator–knew of a similar accident involving the paver. The court added that “[s]imply put, the co-employee supervisors’ actions were not an extreme departure from ordinary care in a situation where a high degree of danger was apparent.

Practitioners should recognize that Wyoming occupies what amounts to middle ground between those states that follow the “intent means intent” rule when it comes to intentional tort claims and those states that allow tort claims against employers (and co-employees) based on a “substantially certain” standard [see Larson’s Workers’ Compensation Law, §§ 103.03, 103.04] Under appellate decisions in Wyoming, “willful and wanton misconduct” is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know, that such conduct would, in a high degree of probability, result in harm to another“ [Hannifan v. American Nat’l Bank of Cheyenne, 2008 WY 65, 185 P.3d 679 (Wyo. 2008). There must be proof that the defendant ”acted with a state of mind approaching intent to do harm or committed an act of an unreasonable character in disregard of known or obvious risks so great as to make it highly probable that harm would follow” [Formisano v. Gaston, 2011 WY 8, 246 P.3d 286 (Wyo. 2011) (emphasis added)].