Intentional Injuries and the Substantial Certainty Rule

As a general rule, the existence of workers’ compensation coverage bars the recovery of damagers incurred in a suit by an injured worker against her employer for negligently causing those damages. There are exceptions to this rule. The Texas Constitution preserves a right of action by a surviving spouse or an “heir of the body” (basically a lineal descendant such as a child or grandchild) to sue the employer. Such a suit must prove grossly negligent or intentional conduct and the damages recoverable in such suits are limited to exemplary (punitive) damages.

In addition, an employee may sue her employer for intentional actions that resulted in her injuries. The line between unintentional conduct and intentional conduct in such cases can seem blurry. Many jurisdictions permit recovery where the injury was not truly intentional, but the employer’s conduct was so egregious that an injury was substantially certain to occur. Recently, national commentator Thomas A. Robinson wrote about a decision from the Vermont Supreme Court where the court refused to water down the “intentional injury” standard by applying the “substantial certainty” test.

For many years, Texas courts, however, have permitted recovery based on “substantial certainty” intentional injuries. That line can still be somewhat difficult to identify.

In Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex. 1981), the Texas Supreme Court expressly held that an injury caused by willful negligence or willful gross negligence is not an intentional injury necessary to avoid the effect of the Workers’ Compensation Act. The court reasoned that an allegation of willful negligence or willful gross negligence is an allegation based upon negligence and is insufficient to allege an “intentional injury.”

Four years later, in Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex. 1985), the Supreme Court also held that an employer’s intentional failure to furnish a safe place to work will not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury. Reed v. Copelin clarifies that the Texas rule adopts the less strict “substantial certainty” test when evaluating whether an employer’s injury-producing conduct is protected by the exclusive remedy defense.