Texas: High Court Clarifies Texas Version of "Substantially Certain" Test in Intentional Tort Actions Against Employers

The Supreme Court of Texas, providing a clear and exhaustive discussion of the state's special utilization of the so-called "substantially certain" standard to be utilized in intentional tort actions filed by employees against their employers, held that in order for the exception to exclusivity to apply, the employer or its representative must believe its actions are substantially certain to result in a particular injury to a particular employee. It is insufficient for the plaintiff to show that there was a high risk of injury to the employees in general. Quoting Larson's Workers' Compensation Law, § 100.01, the court added that it isn't enough that the injured employee show that a substantial certainty of a particular injury to a particular person exist, the employee must also show that the employer believed that the heightened risk existed.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Mo-Vac Serv. Co., Inc. v. Escobedo, 2020 Tex. LEXIS 523 (June 12, 2020)

See generally Larson’s Workers’ Compensation Law, § 103.04.

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

For a more detailed discussion of the case, see

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