WY: Employee’s Intentional Tort Action Against Co-Employees Fails

As noted in Larson’s Workers’ Compensation Law, §§103.03, 103.04, when construing the intentional tort exception to a state’s Workers’ Compensation Act, most jurisdictions say “intent means intent,” that nothing short of a conscious and deliberate intent directed to the purpose of inflicting an injury will cause the employer to lose its exclusivity defense.  About a dozen states follow a rule that allows a tort action against the employer if it can be shown that the employer knew that its conduct was "substantially certain" to cause injury or death.  Wyoming courts fall between the “true intent” and the “substantially certain” standards, holding that a plaintiff may defeat exclusivity if he or she can show that defendant-employer” 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 [emphasis added].  Following prior precedent, the Supreme Court of Wyoming recently affirmed a trial court’s grant of summary judgment favoring two co-employee supervisors who had been sued by an employee after the employee was hit and dragged by one of the employer’s asphalt paving machines. The high court held that the injured employee failed to show that the co-employees intentionally acted to cause the plaintiff-employee physical harm; there was no evidence presented showing that the supervisors had knowledge of, and intentionally disregarded, the dangers associated with the incident.  No such accident had ever occurred before.

Reported by Thomas A. Robinson, J.D.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Vandre v. Kuznia, 2013 Wyo. LEXIS 132 (Oct. 11, 2013) [2013 Wyo. LEXIS 132 (Oct. 11, 2013)]

See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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