Supreme Court of Texas.
REED TOOL COMPANY, Petitioner,
Judy A. COPELIN, Respondent.
April 10, 1985.
Rehearing Denied May 8, 1985.
Attorneys & Firms
*405 Fulbright and Jaworski, Patricia J. Kerrigan, Winstol D. Carter, Jr. and Charles W. Hurd, III, Houston, for petitioner.
R.D. McPherson, Houston, for respondent.
The question presented is whether an employer who intentionally maintains an unsafe workplace in which an employee is injured may be held to have intentionally injured the employee. Mrs. Judy Copelin sued Reed Tool Company for loss of consortium resulting from on-the-job injuries sustained by her husband. The trial court granted summary judgment for Reed Tool Company on the ground that Mrs. Copelin’s action was derivative and could not be maintained because her husband’s suit was barred by the Workers’ Compensation Act. Tex.Rev.Civ.Stat.Ann. arts. 8306–8309i (Vernon 1967 and Supp.1985). This court has held that if Mrs. Copelin could establish an intentional impairment of consortium, her claim would not be barred by either the act or her husband’s acceptance of workers’ compensation benefits. 679 S.W.2d 605. We reverse the judgment of the court of appeals and affirm the trial court judgment.
George Copelin, a machine operator for Reed Tool, 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 alleged that Reed Tool 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 was inadequately trained and that they required him to work “such long hours as violated minimum requirements of law.”
Reed Tool moved for summary judgment asserting there was no question of material fact. Mrs. Copelin failed to file a response, and summary judgment was granted. The court of appeals held that the intentional maintenance of an unsafe workplace would supply the intent necessary to hold the employer liable for an intentional injury, and that since the depositions did not disprove an intent to maintain an unsafe *406 workplace, Reed Tool had not established there were no questions of material fact.
The Texas Workers’ Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury. Restatement (Second) of Torts § 8A (1965).
Some courts have applied the Restatement definition to the worker’s compensation intentional injury exception. In construing the Louisiana Worker’s Compensation Statutes, the Louisiana Supreme Court held “[t]he meaning of intent in this context is that the defendant either desired to bring about the physical results of his act or believed they were substantially certain to follow from what he did.” Schreder v. Cities Service Co., 336 N.W.2d 641, 644 (N.D.1983).
The overwhelming weight of authority from other jurisdictions is that the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury. 2A A. Larson, The Law of Worker’s Compensation § 68.13 (1983). This view is endorsed by Larson who states:
Even if the alleged conduct goes beyond aggravated negligence and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of its accidental character.
Several courts have held that the intentional failure to provide a safe workplace does not constitute an intentional injury in order for the claimant to escape worker’s compensation limits. Shores v. Fidelity & Cas. Co. of New York, 413 So.2d 315 (La.App.1982).
While these results may seem harsh, as Larson points out, it is not the gravity or depravity of the employer’s conduct but rather the narrow issue of intentional versus accidental quality of the injury.
The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was deliberate infliction of harm comparable to an intentional left jab to the chin.
2A A. Larson, The Law of Worker’s Compensation § 68.13 (1982). The exclusive remedy provision is an essential element of the worker’s compensation scheme. The Act established a system of liability without fault. In exchange, the employee had to give up certain elements of damage recoverable under common law negligence. The system balances the advantage to employers of immunity from negligence and potentially larger recovery in common law actions against the advantage to employees of relatively swift and certain compensation without proof of fault. Worker’s compensation is based on the principle that the cost of medical services and benefits provided is part of the cost of doing business and thus is borne directly by the employer, and ultimately by the general public, as part of the cost of goods and services. The continued effectiveness of the worker’s compensation scheme depends on the continued ability to spread the risk of such losses. If employers are required to provide not only worker’s compensation but also to defend and pay for accidental injuries, their ability to spread the risk through reasonable insurance premiums is threatened, and the balance of advantage and detriment would be significantly disturbed. Johns-Manville Products Corp. v. Contra Costa Superior Court, 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948 (1980).
We hold that the intentional failure to furnish a safe place to work does not rise to the level of intentional injury except when the employer believes his conduct is substantially certain to cause the injury.
Mrs. Copelin’s reliance on Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App.—Austin 1984, writ ref’d n.r.e.) is misplaced. Bennight does not hold that the intentional breach of the duty to furnish a safe place to work can supply the requisite intent to injure. Bennight is limited to its facts.
In accordance with our holding, we now decide whether summary judgment for the defendant was proper in this case. Pursuant to the pretrial conference, the trial court limited Mrs. Copelin’s witnesses to Willie Graves and Carl Graves for proof of intentional injury. This order was not contested. Both witnesses testified in depositions that they had no knowledge of anyone from Reed Tool who had intended to injure George Copelin. Neither expressed any knowledge of anyone tampering with the lathe in such a way as to result in injury. Neither was at work at the time of the injury, and neither knew of an eyewitness. Both testified that they *408 believed the injury happened because Copelin attempted to operate the machine improperly. The machine was nicknamed “jaws,” and some employees did not want to operate it. There had been prior injuries on most of the lathes similar to the machine in question as well as that particular machine. None of those prior injuries was debilitating, disabling, or in any way as serious as Mr. Copelin’s injury. There was also testimony that Reed Tool employees sometimes had to work twelve-hour shifts, seven days a week. While the summary judgment evidence might raise a question of fact concerning gross negligence, it does not raise a question of fact that Reed Tool knew with substantial certainty that George Copelin would be injured.
Summary judgment is proper when the summary judgment evidence does not raise a question of fact concerning the plaintiff’s allegations. In order to avoid summary judgment, Mrs. Copelin had to respond to the motion and show why summary judgment was improper, or why she should be entitled to additional discovery in order to raise a question of fact. This she did not do.
The summary judgment was correct. Accordingly, we reverse the judgment of the court of appeals and affirm the trial court judgment.