Vermont: Supreme Court Sticks to Earlier Decision—“Substantial Certainty” Rule May Not be Used in Intentional Tort Cases

The Supreme Court of Vermont again refused to adopt the “substantial certainty” rule for intentional tort cases filed by an injured employee against an employer. Citing its earlier decision in Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980), the Court indicated that nothing short of actual intent to injure could support an injured employee’s intentional tort claim against the employer. Here the worker was injured when he fell from a roof. He contended that the employer had failed to maintain a personal-fall-arrest system (PFAS) that was required not only by the employer’s safety rules, but also by federal (OSHA) and state (VOSHA) laws. Kittellremained the standard, said the court. Taking the plaintiff/employee’s allegations on their face, there still was no evidence that the employer acted deliberately to harm the employee.

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 Martel v. Connor Contr., 2018 VT 107, 2018 VT 107 (Oct. 12, 2018)

See generally Larson’s Workers’ Compensation Law, § 103.03.

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

For a more detailed discussion of the case, see