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Conway v. Circus Circus Casinos9/15/2000
c action that injured the employee was an act intended to cause injury to the employee. Id. at 1204.
We conclude that the Employees may avoid the exclusive remedy provision of the NIIA in regard to their injuries only if Circus Circus deliberately and specifically intended to injure them. See King v. Penrod Drilling Co., 652 F. Supp. 1331, 1334 (D. Nev. 1987); Cerka v. Salt Lake County, 988 F. Supp. 1420, 1421-1422 (D. Utah 1997) ("a showing of knowledge coupled with the substantial certainty that injury will result" is not enough to avoid the exclusive recovery provision of worker's compensation system); Angle v. Alexander, 945 S.W.2d 933, 935 (Ark. 1997) ("the facts must show the employer had a 'desire' to bring about the consequences of the acts or that the acts were premeditated with the specific intent to injure the employee"); Austin v. Johns-Manville Sales Corp., 508 F. Supp. 313, 317 (D. Maine 1981) ("Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, . . . willfully failing to furnish a safe place to work, . . . this still falls short of the kind of actual intention to injure that robs the injury of accidental character.") (quoting 2A Arthur Larson & Lex K. Larson, Workmen's Compensation Law § 68.13 at 13-8, and cases cited in n.11 (1976)); Martinkowski v. Carborundum Co., 437 N.Y.S.2d 237, 238 (Sup. Ct. 1981) ("mere knowledge and appreciation of a risk is not the same as the intent to cause injury"). In this case, the Employees failed to factually allege that Circus Circus acted with deliberate and specific intent to injure them. A bare allegation is not enough. An employee must provide facts in his or her complaint which show the deliberate intent to bring about the injury. See Hay v. Hay, 100 Nev. 196, 198, 678 P.2d 672, 674 (1984) (" complaint must set forth sufficient facts to establish all necessary elements of a claim for relief"); see also 6 Larson, supra, § 103.04.
The second amended complaint alleges that Circus Circus knew of a condition that was injurious to the Employees, but failed to correct it. This is insufficient to remove their claim from the purview of the exclusive remedy provision of the NIIA. If an employee may exempt his or her claim from the exclusive remedy provision of the NIIA by merely pleading that the employer knew of a condition and failed to remedy it, then the workers' compensation system would be rendered meaningless. For these reasons, we conclude that the exposure to the noxious fumes was "an unexpected or unforeseen event."
We further conclude that the exposure to the noxious fumes satisfies the "suddenly and violently" requirement. In American International Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983), an employee's knee "'gave way' two or three inches, causing a twisting motion and pain and discomfort in his lower back." The employee continued with his duties, but was admitted to the emergency room the next morning for back pain. He eventually had to undergo surgery on his back for a rupture of an intervertebral disc caused by the twisting incident at work. This court determined that the incident satisfied the "suddenly and violently" requirement of an accident. Id. at 327, 661 P.2d at 1303. In doing so, this court recognized that " ther jurisdictions . . . have construed similar statutory requirements that compensable accidents occur 'violently' as properly descriptive of any cause efficient in producing a harmful result." Id.
The third requirement of an accident is also satisfied in this case. As previously stated, some of the Employees allegedly became sick to their stomachs, and experienced h
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