Divided Sixth Circuit Affirms Dismissal of Intentional Tort Action Filed against TN employer

In a split decision, the Sixth Circuit Court of Appeals affirmed the dismissal of an injured Tennessee worker’s intentional tort action against her employer based on the district court’s finding that, under Tennessee law, the plaintiff had not plausibly alleged that her employer intended to injure her [Henry v. CMBB, LLC, 2020 U.S. App. LEXIS 1494 (Jan. 14, 2020)]. The plaintiff, who sustained horrific injuries when both her arms were crushed by a 200-ton Bliss press, had pointed to the fact that the employer was well aware of the danger; it had even ordered replacement parts for the 200-ton Bliss press, yet required that she continue to work with the dangerous machine. Citing Larson’s Workers’ Compensation Law, the majority nevertheless found that under Tennessee law, while the facts suggested an awareness of the potential for injury, it did not make it plausible that the employer actually intended to injure the plaintiff. A dissenting judge argued that the line of Tennessee cases used by the majority were distinguishable. The dissenting judge would have sought guidance from the Supreme Court of Tennessee as to whether judicial precedent squarely foreclosed the plaintiff’s claim.

Background

The plaintiff operated a 200-ton Bliss press for her employer. She put pieces of metal into the press, and the press used hydraulic pressure to shape the metal. To prevent injuries, the Bliss press contains a safety mechanism known as a light curtain. A functioning light curtain would detect operators inside the press and prevent it from cycling while operators were reaching inside.

Prior to the plaintiff’s injuries, while a different operator was working with the Bliss press, the employer’s employees noticed that the press’s light curtain was not functioning properly. The employer took that operator off the press and put a more experienced operator on the job. It also ordered new light curtains. It did not, however, take the Bliss press out of operation.

Two weeks later, on November 15, 2017, the plaintiff was operating the Bliss press, but the new light curtains had not yet arrived. The press cycled while the plaintiff was placing aluminum parts into it. The 200-ton machine crushed her arms, which were amputated above the elbow.

The plaintiff and her husband filed suit in Tennessee state court and the employer removed the action to a federal district court. The district court then dismissed the complaint for failure to state a claim because it was barred by the exclusive remedy provision of the Tennessee Workers’ Compensation Act.

Tennessee Has Narrow Exception to Exclusiveness

The majority of the Sixth Circuit noted that the intentional tort exception in Tennessee was quite narrow. Citing Valencia v. Freeland & Lemm Constr. Co., 108 S.W.3d 239 (Tenn. 2003), the majority observed that, unlike the sort of “intent” rule applicable in the context of tort law, where the “intent” element can be satisfied if the tortfeasor believes “that the consequences are substantially certain to result from [his] actions,” [108 S.W.3d at 243], that definition was not applicable in workers’ compensation cases. To avoid the exclusive remedy defense, the plaintiff was required to show actual intent—that the employer meant harm to the employee. Citing Larson, § 103.03, the majority observed that the Tennessee stance on the issue of intentional torts was within the majority rule.

Effect of Ordering Replacement Parts

The majority stressed that it was not reasonable to infer that because an employer ordered replacement safety parts—designed to prevent workplace injuries—the employer actually intended for one of its employees to be injured before the replacement parts arrived. The majority acknowledged that ordering new light curtains did show that the employer acknowledged the potential for injuries. But it was not enough under Tennessee law, said the majority. Under Valencia, in Tennessee it was not even enough that the employer is “substantially certain” that an injury will occur. The employer must actually intend to injure the employee.

Dissent: Does Doing Something About the Problem Make a Difference?

Judge John K. Bush dissented. The judge agreed that Valencia was “some guidance.” It was, however, distinguishable. Judge Bush stated:

The majority concludes that Valencia forecloses [the plaintiff’s] claim. I respectfully disagree. Neither Valencia nor the plethora of Tennessee Court of Appeals cases cited by the court in Valencia, address a fact pattern with a sequence of events like here, where the employer allegedly took deliberate affirmative action that recognized there was a safety problem before the injury occurred. In Valencia the employer had been cited twice for violating … safety regulations,” [citation omitted by this writer], but there was no evidence that the employer had done anything to acknowledge a safety issue after receiving the citations. This inaction may have indicated that the employer did not consider that the condition that was the subject of the citations—construction trenches—actually needed to be changed to prevent worker injury. Based on Valencia, therefore, when an employer does nothing to correct an unsafe working condition, that fact alone does not make the injury non-accidental. But, Valencia does not address the scenario, as [the plaintiff] alleges here, where an employer actually initiated action to do something to address the unsafe condition, but then nonetheless subjected the worker to that condition, and the consequent injury, before the corrective measure was completed. These additional facts alleged by [the plaintiff] may support a finding that the injury was not accidental. I am not aware of any Tennessee Supreme Court opinion that addresses a situation as [the plaintiff] alleges. Therefore, I believe we should go the route of certification.

Commentary: One Danger in the Dissent’s Argument

Judge Bush makes a compelling argument here, not so much that Tennessee should abandon the “intent means intent” rule discussed in Larson, § 103.03 (cited by the majority), but in positing that the facts of this case are distinguishable from those in Valencia.

Would Judge Bush’s tacitly-suggested rule make the workplace safer? I wonder if the opposite might actually be the case. As I follow the judge’s argument, the Valencia plaintiff did not state a claim because the employer initiated no remedial action, yet the plaintiff in the instant case might have stated a claim because the employer here, did try to remediate the situation (it could have taken the press off-line, of course). If one isn’t careful, what one ends with under Judge Bush’s argument is a rule that punishes—with potential tort liability—the employer who tries to fix the situation and rewards the employer who doesn’t.

Parenthetically, I’d add that egregious fact patterns, such as those in the instant case, have sometimes resulted in a state’s jettisoning the majority “intent means intent” rule and borrowing the substantially certain rule from tort law [see our discussion of “substantially certain”/“substantial certainty” in Larson, § 103.04].