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Alford v. Catalytica Pharmaceuticals6/4/2002
R.C. 2305.112(A)). South Dakota has held that " orker's compensation is the exclusive remedy for all on-the-job injuries to workers except those injuries intentionally inflicted by the employer. Under the intentional tort exception, workers may bring suit against their employers at common law only `when an ordinary, reasonable, prudent person would believe an injury was substantially certain to result from [the employer's] conduct.'" Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 371 (S.D. 1991) (citing VerBouwens v. Hamm Wood Products, 334 N.W.2d 874, 876 (S.D. 1983) (emphasis in original)).
The legislature in Michigan has by statute rejected the "substantially certain" test announced in Beauchamp v. Dow Chemical Co., 398 N.W.2d 882 (1986), and adopted a more rigorous "true intentional tort" standard as the proper test for determining the presence of an intentional tort to overcome the exclusivity of their workers' compensation provisions. See Gray v. Morley, 596 N.W.2d 922, 924 (Mich. 1999). The Louisiana Supreme Court has held that "intentional act" as used in their statute means the same as intentional tort, stating that "intent" means that the person either: "`(1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result.'" McCool v. Beauregard Memorial Hosp., ___ So.2d ___, ___ (La. App. Apr. 3, 2002) (No. 01-1679) (quoting Bazley v. Tortorich, 397 So.2d 475, 481 (La. 1981)).
The courts and legislatures of those jurisdictions followed by our Supreme Court in Woodson, consider such claims to be equivalent to an intentional tort and within the intentional tort exception to the exclusivity of the Workers' Compensation Act.
Plaintiffs argue that our Supreme Court "clarified that a claim under Woodson was not an intentional tort" in Owens v. W.K. Deal Printing, Inc., 339 N.C. 603, 453 S.E.2d 160 (1995). In Owens, our Supreme Court reversed per curiam the decision of this Court for the reasons stated in the dissenting opinion. The Court added that " o the extent that it may be read as implying that actions authorized under [Woodson], seek recovery for `intentional torts' in the true sense of that term, we do not accept the reasoning of dissent. We reemphasize that plaintiffs in Woodson actions need only establish that the employer intentionally engaged in misconduct and that the employer knew that such misconduct was `substantially certain' to cause serious injury or death, and thus, the conduct was `so egregious as to be tantamount to an intentional tort.'" Id. at 604, 453 S.E.2d at 161 (emphasis supplied). We find this statement to be qualified by the language "in the true sense of that term."
Plaintiffs argue, and the dissent asserts, that "substantial certainty" originates in negligence. Our courts have acknowledged that certain behavior grounded in negligence is tantamount to an intentional tort, and have implicitly treated such conduct as intentional torts. E.g., Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956) (malicious conduct, wanton conduct, or a degree of negligence which indicates a reckless indifference to consequences will support punitive damages); see also State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984) (wanton and reckless conduct will supply malice for second-degree murder).
An intentional tort requires an actual or constructive intent to harm. Lynn v. Burnette, 138 N.C. App. 435, 440, 531 S.E.2d 275, 279 (2000) (citing 65 C.J.S. Negligence ยง 3 (1966)). The intentional tort of battery occurs "when the plaintiff is offensively touched against th
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