Navigating the Intentional Injury Exception to Exclusive Remedy
When is the last time that you saw the bats stream down Lady Bird Lake in downtown Austin? You may know that the 1.5 million Mexican free-tailed bats that roost under the Ann W. Richards Congress Avenue Bridge make up the 
largest urban bat colony in the world. But did you know that Austin bats have played a central role in defining when and how an employer can be sued for allegedly injuring an employee?
This story starts with the exclusive remedy doctrine. It follows a trio of cases that lead to a better understanding of when and how an employer may be liable to its employee or her family for an intentional injury.
It is well settled that the Texas Workers’ Compensation Act provides benefits to injured workers without the necessity of proving negligence and without regard to the employer’s potential defenses.
In exchange, the Act prohibits employees from seeking common-law remedies from their employers by making workers’ compensation benefits an injured employee’s exclusive remedy. The benefits available under the Act are more limited than the actual damages recoverable at common law. This quid pro quo produces a more limited but more certain recovery.
The exclusive remedy defense contains an exception for intentional injuries committed by an employer. In other words, if an employer intentionally injures an employee, the Act will not protect the employer from being sued for damages arising from that intentional action.
Proving what constitutes an intentional injury has bedeviled Texas courts for decades. The cases usually center on allegations that describe long working hours or dangerous machinery that, the claims go, are “substantially certain” to cause injury or death. The Texas Supreme Court recently wrote again in Mo-Vac Serv. Co., Inc. v. Escobedo, 18-0852, 2020 WL 3126989 (Tex. 2020) on how the substantial certainty rule applies to intentional injuries.
Bennight
Understanding Escobedo requires a review of “the bat case,” Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex. App.—Austin 1984, writ ref’d n.r.e.). The facts in Bennight are remarkable. They focus on an employee who was injured after she had been ordered to work in a bat-infested warehouse.
Cathy Bennight worked in a Western Auto retail store in Austin. The rear, or warehouse area, of the store was infested with bats, a fact known to the manager of the store who refused to have them removed after being requested several times by employees to do so. The manager knew the bats posed a serious risk of rabies should one bite an employee, a fact pointed out to him by employees and a local health official whom employees called to the store shortly before the incident giving rise to the claim.
Cathy Bennight was fearful of the bats, a fact she repeatedly communicated to the manager. On several occasions, the manager nevertheless required her, over her protests, to enter the bat-infested area in the course of her work. On one particular day, she was “attacked” by bats three times while in the rear of the store. She was not bitten although one became briefly entangled in her hair.
The next working day, Ms. Bennight was bitten by a bat when the manager required that she go again to the rear of the store on a business errand. The bite necessitated anti-rabies treatment. In the course of that treatment, Cathy reacted adversely to a prescribed vaccine, becoming permanently blind and emotionally disturbed.
Cathy’s husband sued the employer, arguing that under the substantial certainty rule the employer had committed an intentional tort that resulted in her injuries. The court of appeals concluded that Mr. Bennight could recover damages from his wife’s employer after a jury found that the employer had intentionally maintained an unsafe workplace, which resulted in her injury. One appellate judge dissented, arguing that the jury answers had failed to establish the existence of an intentional injury under Texas law.
Copelin
Bennight was discussed by the Texas Supreme Court the following year in Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985). Copelin had been a machine operator for Reed Tool Company. He was injured in the course of his employment when a chain tong from the lathe he was operating hit him in the head. He suffered severe brain damage and was left in a coma.
Mrs. Copelin sued Reed Tool alleging that the company had intentionally caused her husband’s injury by intentionally requiring him to work a machine that Reed Tool knew was unsafe, did not meet minimal safety standards, and was defective because of a modification made by Reed. She further alleged that Reed Tool knew her husband had not been adequately trained and that they required him to work “such long hours as violated minimum requirements of law.”
Reed Tool defended the case by arguing that Copelin’s claim was a derivative claim and could not be maintained because her husband’s suit was barred by the exclusive remedy provisions in the Workers’ Compensation Act. Copelin argued that she satisfied an exception to the exclusive remedy defense. She claimed that Reed Tool had intentionally breached its duty to furnish her with a safe workplace. She relied upon Bennight.
In Copelin the court held that for an employee (or her surviving spouse) to successfully pursue recovery against an employer the employer must have intended to cause the specific result, not merely the actions or circumstances leading to that result. The court in Copelin refused to follow Bennight, limiting that lower court’s holding to the facts in that case.
Escobedo
Accordingly, the court’s most recent decision in Escobedo is controlled by Copelin and not by Bennight.
Escobedo sued Mo-Vac, his son’s employer, after his son died when he fell asleep hauling liquids from oilfield sites. By pushing his son to drive longer hours than were safe, and legal, Escobedo alleged, Mo-Vac’s conduct was substantially certain to lead to an accident. By alleging his son’s death was substantially certain to have occurred, Escobedo invoked the intentional injury exception to the Act’s exclusive remedy for negligent injuries.
The Court ruled that had Escobedo failed to raise a fact issue on whether the intentional-injury exception to the Act’s exclusive-remedy provision applied. Although Mo-Vac may have known an ascertainable statistical chance existed that some of its drivers would be injured over some period of time and that the number of hours its drivers worked would affect that chance, this evidence did not indicate that Mo-Vac intended a driver be killed on the job or that Escobedo’s crash result because of his grueling schedule or that either was substantially certain.
The rule in Escobedo is that for the intentional-tort exception to the exclusive remedy to apply, the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace. Case law requires the defendant to know that specific consequences are substantially certain to result from the defendant’s conduct to prevent the intentional-injury exception from devolving into a standard of exceptionally egregious gross negligence.
FOLIO
