Ford v. Revlon, Inc.

FELDMAN, Vice Chief Justice,

concurring.

I reach the same result, but write separately because I do not agree with the court’s analysis on the issue of whether the Arizona workers’ compensation law bars Ford from tort recovery. 153 Ariz. at 44-45, 734 P.2d at 586-587. The court concludes that Ford may recover in tort for her injuries because they were not caused “by accident” within the meaning of the workers’ compensation scheme. See A.R.S. §§ 23-1021(B) and 23-1043.01(B). To support its analysis, the court notes that Ford’s injuries were “essentially nonphysical” and “not unexpected.” At 44, 734 P.2d at 586. In fact, the court adds, the jury found Revlon liable for intentional infliction of emotional distress. Id. at 45, 734 P.2d at 587.

The court errs in its attempt to narrow the definition of “accident.” Under both the Arizona Constitution and precedent, Ford’s injuries were the result of “accident” and do fall within the coverage formula. Thus, she may recover in tort only if the action for intentional infliction of emotional distress is one of those torts outside the purpose and intent of the workers’ compensation scheme. See Renteria v. County of Orange, 82 Cal.App.3d 833, 841, 147 Cal.Rptr. 447, 451 (1978) (some types of torts fall within “an entire class of civil wrongs outside the contemplation of the workers’ compensation system”), followed in Russell v. Massachusetts Mutual Life Insurance Co., 722 F.2d 482, 493-95 (9th Cir.1983), rev’d in part on other grounds, 473 U.S. 134, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985); Garvin v. Shewbart, 442 So.2d 80, 83 (Ala.1983) (conduct constituting intentional infliction of emotional distress cannot be considered to be within the scope of the workers’ compensation act); cf. 2A A. LARSON, THE LAW OF WORKMEN’S COMPENSATION § 68.30, at 13-40 (1983).

I.

The Arizona Constitution directs the legislature to enact a workers’ compensation law protecting workers injured or killed “from any accident arising out of and in the course of” employment. Ariz. Const, art. 18, § 8.¹ This constitutional requirement arose from the view that work-related injury was an inevitable accompaniment of industrialization, the costs of which should be borne by the responsible industry and its consumers. Pressley v. Industrial Commission, 73 Ariz. 22, 236 P.2d 1011 (1951); Atkinson, Kier Brothers, Spicer Co. v. Industrial Commission, 35 Ariz. 48, 53-54, 274 P. 634, 636 (1929); Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 HARV.L.REV. 1641, 1642 (1983). The workers’ compensation acts thus were intended to shift the cost of industrial accidents from the injured employees to industry. Note, Mental Injury and the Workmen’s Compensation Act, 19 ARIZ.L. REV. 709, 710 (1977); W. PROSSER & W. KEETON, THE LAW OF TORTS § 80, at 572-74 (5th ed. 1984). Industry, in turn, spread the cost of employee accidents among consumers through the increased cost of goods and services. Note, supra, 19 ARIZ.L.REV. at 710; W. PROSSER & W. KEETON, supra § 80, at 573.

In Arizona, the evolution of workers’ compensation case law strikingly illustrates the manner in which, by expanding the concept of “accident,” the courts strained to realize these social goals. See, e.g., Goodyear Aircraft Corp. v. Industrial Commission, 62 Ariz. 398, 158 P.2d 511 (1945); Matter of Mitchell, 61 Ariz. 436, 451, 150 P.2d 355, 361 (1944). At first, the term “accident” was narrowly construed by giving it the common meaning of a “sudden or instantaneous act or occurrence.” Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P.2d 1017 (1933). Mitchell expanded “accident” to include a gradual and progressive injury. The courts then adopted the view that an injury resulted from an “accident” when either the external cause was unexpected or the resulting injury was unintended. Paulley v. Industrial Commission, 91 Ariz. 266, 272, 371 P.2d 888, 893 (1962).

This background illustrates the error of the court’s analysis. The court finds that Revlon’s conduct was not an “accident,” presumably because Revlon acted intentionally and, therefore, its conduct was not “unexpected.” In so holding, the court has ignored this state's extremely expansive definition of “accident” for workers’ compensation purposes. Fireman’s Fund Insurance Co. v. Industrial Commission, 119 Ariz. 51, 579 P.2d 555 (1978) (mental breakdown caused by stress of work is an injury by accident); Paulley, supra. Under Arizona’s case law and statutes, an “accident” is any work-connected injury between the extremes of a “purposely self-inflicted” injury (A.R.S. § 23-1021) and one inflicted by the employer acting “knowingly and purposely with the direct object of injuring” the employee. See Johnson v. Kerr-McGee Oil Industries, Inc., 129 Ariz. 393, 631 P.2d 548 (App.) (the intentional injury exception does not apply even when the employer deliberately and intentionally exposes an employee to a known risk of harm), appeal dismissed, 454 U.S. 1025, 102 S.Ct. 560, 70 L.Ed.2d 469 (1981); accord Kofron v. Amoco Chemicals Corp., 441 A.2d 226 (Del.1982). If cancer caused by the employer’s deliberate exposure of unprotected employees to a known carcinogen is an “accidental injury” (Kerr-McGee, supra), it is difficult to understand how the mental trauma caused by an employer’s deliberate failure to respond to an employee’s complaints of sexual harassment can be nonaccidental.

In holding that Ford’s injuries were not accidental, the court has failed to consider or discuss the limited exceptions to the exclusivity bar of the workers’ compensation statutes. This scheme of coverage extends to all work-related injuries except those that are purposely self-inflicted and those intentionally inflicted by the employer. See A.R.S. §§ 23-1021(B), 23-1022, and 23-1043.01(B); Ariz. Const. art. 18, § 8. The majority implies that Ford’s action cannot be barred because the jury found the employer liable for “intentional infliction of emotional distress.” At 45, 734 P.2d at 587. However, the jury’s finding does not bring Ford within the intentional act exception; that exception applies only to employers who “knowingly or purposely” act with the “direct object of injuring” the employee. Ariz. Const, art. 18, § 8; A.R.S. § 23-1022. The trial evidence does not warrant an inference that Revlon had the “direct object of injuring” Ford and neither it nor its elected officers (see A.R.S. § 23-1022) could have had any possible motive for such an objective. Ford’s verdict against Revlon is sustainable only on the theory that Revlon recklessly disregarded the near certainty that emotional distress would result from its failure to respond to Ford’s complaints. See Lucchesi v. Stimmell, 149 Ariz. 76, 78-79, 716 P.2d 1013, 1015-16 (1986). Such a reckless disregard falls far short of a knowing or purposeful act committed with the “direct object of injuring” Ford. Ariz. Const. art. 18, § 8; Kerr-McGee, supra. The intentional infliction finding, therefore, does not remove Ford’s injury from the exclusivity bar.

II.

Despite my disagreement with the court’s analysis, I concur in the result. Although Ford’s injury falls within the workers’ compensation coverage formula, she still should be allowed to obtain tort recovery because the wrong done her falls outside the workers’ compensation scheme.

The original purpose of workers’ compensation was to compensate workers for injury that had its origin in a risk connected with the employment. Ocean Accident & Guarantee Corp., Ltd. v. Industrial Commission, 32 Ariz. 265, 270-71, 257 P. 641, 642-43 (1927); Netherton v. Lightning Delivery Co., 32 Ariz. 350, 258 P. 306 (1927). This purpose is expressed in the language of the Arizona Constitution providing that the legislature enact workers’ compensation laws requiring compensation

if in the course of such employment personal injury to or death of any such workman from any accident arising out of and in the course of, such employment, is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof ...

Ariz. Const, art. 18, § 8 (emphasis added). The risks contemplated by the drafters of the constitution and by the bulk of the public as the purpose behind workers’ compensation are “[a]ll the things that can go wrong around a modem factory, mill, mine, transportation system, or construction project—machinery breaking, objects falling, explosives exploding, tractors tipping, fingers getting caught in gears, excavations caving in, and so on....” 1 A. LARSON, supra § 7.10, at 3-12 (1985).

Courts have considered the original intent of the workers’ compensation scheme and some have provided a tort remedy instead of workers’ compensation to employees injured by wrongs that are not “a necessary risk or danger” of their employment. Some courts have invoked the bar of exclusivity and have refused to recognize a tort remedy. Cases that reflect this struggle over exclusivity include: Ritter v. Allied Chemical Corp., 295 F.Supp. 1360 (D.S.C.1968) (assault), aff'd, 407 F.2d 403 (4th Cir.1969); Franks v. United States Fidelity & Guaranty Co., 149 Ariz. 291, 718 P.2d 193 (App.1985) (bad faith claim against compensation carrier); Iverson v. Atlas Pacific Engineering, 143 Cal.App.3d 219, 191 Cal.Rptr. 696 (App.1983) (false imprisonment); Howland v. Balma, 143 Cal.App.3d 899, 192 Cal.Rptr. 286 (App.1983) (slander); Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo.1985) (bad faith); Battista v. Chrysler Corp., 454 A.2d 286 (Del.Super.Ct.1982) (intentional infliction of emotional distress and defamation); Gallagher v. Bituminous Fire & Marine Insurance Co., 303 Md. 201, 492 A.2d 1280 (1985) (intentional infliction of emotional distress); Foley v. Polaroid Corp., 381 Mass. 545, 413 N.E.2d 711 (1980) (defamation); Boscaglia v. Michigan Bell Telephone Co., 420 Mich. 308, 362 N.W.2d 642 (1984) (civil rights); Moore v. Federal Department Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262 (1971) (false imprisonment); but see Baker v. Wendy’s of Montana, Inc., 687 P.2d 885 (Wyo.1984) (intentional infliction of emotional distress and assault).

The leading commentator in the field notes that when no physical injury has been suffered, and thus “[w]hen no compensation remedy is available, these tort actions fall squarely within the broad class of cases ... which do not come within the fundamental coverage pattern of the Act at all____” 2A A. LARSON, supra § 68.30, at 13-40. Larson would allow the employee to recover outside the workers’ compensation system under the following conditions:

If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.

Id. § 68.34(a), at 13-62 to 13-63.

I believe Professor Larson’s analysis is essentially correct, except that instead of focusing on the nature of the injury in each particular case, I would look to the essential nature of the wrong in question. Regardless of the label placed on the action, it is outside the workers’ compensation scheme only if the wrong is one not ordinarily resulting from an inherent risk or danger of the employment and if the essence of the tort action ordinarily is nonphysical with physical injury only incidental to emotional, mental, or other injury. Among these types of torts and actions, as Professor Larson and some cases recognize, are defamation, invasion of privacy, false imprisonment, sexual, religious or racial discrimination, wrongful termination, constitutional torts, and similar matters. See 2A A. LARSON, supra §§ 68.30-68.-34(e), at 13-39 to 13-80 and Supp.1985.

Under the facts of this case, I believe the tort committed by Revlon was outside the coverage of the workers’ compensation act and thus the action is not barred by the doctrine of exclusivity. The essence of the wrong was sexual harassment. Revlon failed to react to Ford’s complaints, in reckless disregard of the consequences, thus making itself liable for outrageous conduct. While the form of the action—intentional infliction of emotional distress—is not always outside workers’ compensation (see Gallagher, supra, and Foley, supra), the essence of the tort in the case before us involves a violation of rights protected by law and policy. See 42 U.S.C.A. § 2000e-2(a)(1); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). By law, exposure to sexual harassment is not an inherent or necessary risk of employment, even though it may be or may have been endemic. The cost of such conduct ought not to be included in the cost of the product and passed to the consumer. If my employer invades my right to privacy by tapping my telephone, it is my employer who should pay the piper for such a wrong, not his compensation carrier.

Given the substantive nature of the wrong committed here, I believe that this form of the action falls outside the compensation system. The action for outrage, now called infliction of emotional distress, was first recognized as a remedy for emotional injury caused by outrageous conduct and as a response to the doctrine that, unaccompanied by preceding physical harm, such injury was noncompensable. See W. PROSSER & W. KEETON, supra § 12, at 54-56. Thus, I believe Ford is entitled to maintain a tort action against her employer despite the exclusivity bar for the simple reason that her injury ought not to be compensable under the workers’ compensation system and is one of those torts that ought to be compensable only at the expense of the wrongdoer and only upon a showing of the requisite degree of culpability.

HOLOHAN, J., concurs.

1 . At the time of the Arizona Constitutional Convention of 1910, legislatures around the country were enacting such statutes in response to the increased financial burden placed on society by victims of industrial accidents; industrial towns found themselves supporting numerous workers’ families after the workers had been maimed or killed while working. Note, Intentional Torts Under Workers' Compensation Statutes: A Blessing or a Burden? 12 HOFSTRA L.REV. 181, 181 (1983); Note, Exceptions to the Exclusive Remedy Requirements of Workers’Compensation Statutes, 96 HARV.L.REV. 1641, 1641 (1983). Injured workers rarely sued for work-related injuries because a great majority of the suits were unsuccessful. Atkinson, Kier Brothers, Spicer Co. v. Industrial Commission, 35 Ariz. 48, 53-54, 274 P. 634, 636 (1929); Note, supra, 12 HOFSTRA L.REV. at 182; Note, supra, 96 HARV.L. REV. at 1641; W. PROSSER & W. KEETON, THE LAW OF TORTS § 80, at 572 and n. 43 (5th ed. 1984) (70 percent to 94 percent uncompensated). This was so because employees had not only to prove the employer’s fault, which was often impossible because the injury resulted from a risk inherent in the type of employment, but also because employers asserted the common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule. Note, supra, 12 HOFSTRA L.REV. at 181-83; Note, supra, 96 HARV.L.REV. at 1644; W. PROSSER & W. KEETON, supra § 80, at 568-72.