Texas High Court Shows "Substantially Certain" Rule Differs "Substantially" from State to State

In an opinion that provides perhaps the best discussion of the intentional injury exception to a state’s exclusive remedy rule, the Supreme Court of Texas held that in order for the exception to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely that there was a high risk of injury to its employees in general [Mo-Vac Serv. Co., Inc. v. Escobedo, 2020 Tex. LEXIS 523 (June 12, 2020)]. Accordingly, evidence that a truck driver had been forced to work 137 hours in the eight days leading up to a fatal accident — an average of 17 hours per day — was not sufficient to show the necessary subjective intent on the part of the employer to injure the driver.

Background

Escobedo was one of about 30 drivers employed by Mo-Vac, a trucking and warehousing company servicing the oil patch from several Texas cities. Escobedo, a 12-year employee, died when his rig ran off the highway and rolled over in the early morning hours of May 30, 2012. His estate representative (“Plaintiff”) sued Mo-Vac to recover damages for his pain and suffering before he died.

Mo-Vac was a subscriber to the Texas workers’ compensation system. Plaintiff contended that Escobedo fell asleep at the wheel due to fatigue from being forced to work grueling hours. As noted by the Supreme Court, Plaintiff could succeed only by proving that Mo-Vac intentionally caused Escobedo’s accident in the sense that it believed the accident was “substantially certain to result” from his being overworked.

Escobedo’s time records showed that in the eight days leading up to the accident, he worked 137 hours, averaging 17 hours a day. He worked 20 hours three days before the accident, 14 hours two days before, and 19 hours the previous day. Plaintiff’s expert estimated that the day before the accident, Escobedo had only a few hours’ rest before leaving the Dilley yard about 9:00 p.m. to make deliveries at two wellsites.

At a hearing, Escobedo’s manager testified that even though it was “obviously unsafe to nearly everyone in company management,” Mo-Vac drivers were “routinely working 100 hours or more per week” and “19 to 24 hours straight—day after day.” According to the manager, “It was becoming insane.” He added that to make matters worse, drivers had poor sleeping conditions. According to the manager, the trucks did not have sleeper berths, and Mo-Vac encouraged drivers “to sleep on a sheet of plywood stretched across their seats.”

Trial Court Grants Employer Summary Judgment

The trial court granted Mo-Vac’s no-evidence motion for summary judgment. The court of appeals reversed and remanded, concluding that whether Mo-Vac believed its conduct was substantially certain to cause Escobedo’s death remained an issue of fact. The Supreme Court of Texas granted Mo-Vac’s petition for review.

Intentional Injury Exception to Exclusivity

The Court initially noted that Plaintiff did not contend that Mo-Vac purposefully killed Escobedo but instead that Mo-Vac believed his accident was substantially certain to result from being overworked. The Court noted that although the Texas legislature first enacted the Workers’ Compensation Act in 1913, it had never explicitly contained an exception for intentional injuries. That exception, however, had been effectively written into the law by the Court in Middleton v. Texas Power & Light Co., 185 S.W. 556 (Tex. 1916).

According to the Court, the legislature had never codified or rejected Middleton‘s intentional-injury exception. After an overhaul of the Act in 1993, the Court concluded that the current Act embodies the rule of Middleton and its progeny [see Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996)].

Reed Tool Decision

The Court explained that it did not have occasion to interpret Middleton‘s intentional-injury exception until 1985, in Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985). We began by defining intentional injury. Copelin, the employee, suffered a catastrophic injury when he was struck in the head by part of what his spouse contended was a defective piece of machinery. She contended that the employer had intentionally injured Copelin by requiring him to operate a machine despite knowing that it was defective and unsafe and that he was not properly trained. She further alleged that Reed Tool required him to work long hours in violation of applicable regulations.

The Court in Reed Tool distinguished intent from other mental states, noting that the fundamental difference between negligent injury, or even grossly negligent injury, and intentional injury, was the specific intent to inflict injury.” The Court looked to the Restatement (Second) of Torts, which defined intent to mean that “the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

The Larson Standard

The Court looked also to Larson’s Workers’ Compensation Law, in which my mentor stated:

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 unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of its accidental character [former § 68.13, current § 100.01].

Identifiable Victim

The Court stressed that in order to be truly “intentional,” for purposes of the exclusion from workers’ compensation exclusivity, the actor’s intent must be directed toward a particular contact or apprehension, not merely a possibility of some contact or apprehension. This specificity is to be expected for a tort that involves an actor and an identifiable victim.

Applying the rule in Reed Tool, the Court noted that in order for the intentional-tort exception to apply, the plaintiff was required to show that Reed Tool believed it was substantially certain her husband would be injured, not that someone would be injured.

Turning back to the instant case, the Court held that based on Reed Tool and also on its subsequent decision in Rodriguez v. Naylor Industries, Inc., 763 S.W.2d 411, 413 (Tex. 1989), in order for the intentional-tort exception to the exclusive remedy to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.

Subjective Element

Moreover, indicated the Court, there is a substantial element involved. The definition of intent adopted in Reed Tool requires not only that a substantial certainty of a particular injury to a particular employee exist but also that the employer “believed” that it existed.

Plaintiff’s Evidence

The Court concluded that Plaintiff’s evidence failed to raise a fact issue as to whether Escobedo’s accident was substantially certain. It stressed that substantial certainty would always be hard to quantify, and because hindsight is 20/20 the assessment was almost unavoidably skewed when the consequence were dire, such as in the instant case.

The Court concluded that in workers’ compensation cases, it is not enough to show that all the defendant’s employees were at risk all the time due to overall dangerous job conditions, thus rendering any injury sustained inevitable. Substantial certainty was not established when the identity of potential victims was vague, the time frame involved expansive, and the causal chain connecting conduct and harm relatively attenuated. Plaintiff’s evidence did not raise a fact issue under the intentional-injury exception; thus, her claims were barred by the exclusive-remedy provision of the Act.