DocketNumber： 17877
Judges： Moon, Klein, Levinson, Nakayama, Ramil
Filed Date： 6/20/1996
Status： Precedential
Modified Date： 11/8/2024
In this case, dealing with the scope and requirements of the statutory “wilful[
On appeal, Iddings contends that the circuit court erred in granting Dr. Mee-Lee’s motion for summary judgment because: (1) Dr. Mee-Lee could not be found to have engaged in “wilful and wanton misconduct” insofar as Iddings did not allege that Dr. Mee-Lee acted with an intent to injure Id-dings; and (2) Hawaii’s workers’ compensation scheme provided the exclusive remedy for her injuries.
We hold that the circuit court erred in granting Dr. Mee-Lee’s motion for summary judgment because an actual intent to injure is not required in order for the injury-causing conduct of a co-employee to fall within the scope of the “wilful and wanton misconduct” exception of HRS § 386-8 (1993).
I. BACKGROUND
At the time of Iddings’s injuries, both Id-dings and Dr. Mee-Lee were employed by the CMC. Dr. Mee-Lee was the Director of Psychiatry at the CMC and was in charge of the Human Services Unit. Iddings worked in the Human Services Unit as a psychiatric nurse. While on duty on October 12, 1991, Iddings assisted several CMC staff members in subduing a violent patient in the Human Services Unit. During the fracas, Iddings was thrown to the floor, became wedged between pieces of furniture, and suffered injuries to her head, neck, back, and knee.
After the incident, complaining of headaches, Iddings was hospitalized from November 1 to 5, 1991, and later received physical therapy for her neck, back, and knee injuries. Iddings applied for, and received, workers’ compensation benefits for medical care and wage loss associated with her injuries.
On August 12, 1992, Iddings, who now resides in Virginia, filed a complaint in the First Circuit Court against Dr. Mee-Lee, alleging, inter alia, that: (1) Dr. Mee-Lee was an independent contractor; and (2) Dr. Mee-Lee, by allowing the CMC’s Human Services Unit to become overcrowded with patients, acted both negligently and wilfully and wantonly in creating an unsafe work environment that caused the Intensive Care Module to become cluttered with furniture in order to accommodate the patients. The pertinent portions of the complaint specifically alleged that:
4. Upon information and belief, Defendant MEE-LEE is and was at all times material herein the Director of Psychiatry at Castle Medical Center. Upon further information and belief, Defendant MEE-LEE provided said services to Castle Medical Center as an independent contractor.
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8. On or about October 12, 1991, Plaintiff IDDINGS was on duty as a psychiatric nurse within the Human Services Unit. At the above-described time and place, it was necessary for plaintiff, as a part of her duties, to enter the Intensive Care Module to subdue a violent patient.
9. In the course of subduing said patient, Plaintiff was injured as she was shoved against furniture which was within the Intensive Care Module in order to accommodate the overcrowded conditions within the unit.
10. Prior to October 12, 1991, Defendant MEE-LEE had been advised that excessive furniture within the Intensive Care Module posed a safety hazard, but*5 Defendant MEE-LEE took no steps to remove the furniture or to reduce the patient population within the Intensive Care Module.
11. Defendant had the ability to control the patient population, as was evidenced by the fact that he caused said population to be reduced to within authorized numbers in anticipation of a hospital accreditation inspection, and, again, in anticipation of an inspection by the State Department of Health.
12. The actions of Defendant MEE-LEE in failing to take steps to provide for the safety of plaintiff IDDINGS and other staff members who were required to work within the Intensive Care Module with individuals who often were hostile and/or violent constituted negligence and/or willful and wanton misconduct on the part of Defendant MEE-LEE.
Subsequent discovery revealed that, at all times pertinent to the complaint, Dr. Mee-Lee had been an employee of the CMC and was not an independent contractor. Recognizing that her negligence claims against Dr. Mee-Lee would therefore be barred by the exclusive remedy provisions of HRS § 886-5 (1985),
On January 3, 1994, Dr. Mee-Lee filed a motion for summary judgment: (1) contending that Iddings’s allegation that Dr. Mee-Lee intentionally allowed her to work in an unsafe working environment “is not sufficient to constitute the type of “wilful and wanton misconduct’ which is required to circumvent the exclusive remedy provision” of HRS § 386-5; and (2) asserting that “proof of an actual intent to injure is required to circumvent the exclusive remedy provision[.]” The circuit court agreed and granted Dr. Mee-Lee’s motion by order filed February 8,1994. This timely appeal followed.
II. STANDARD OF REVIEW
On appeal, an order of summary judgment is reviewed under the same standard applied by the circuit courts. Summary judgment is proper where the moving party demonstrates that there are no genuine issues of material fact and it is entitled to a judgment as a matter of law. In other words, summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.
Heatherly v. Hilton Hawaiian Village Joint Venture, 78 Hawai'i 351, 353, 893 P.2d 779, 781 (1995) (brackets, quotation marks, and citations omitted).
III. DISCUSSION
A. The Exclusivity Provisions of Hawaii’s Workers’ Compensation Scheme and the ‘Wilful and Wanton Misconduct” Exception to Co-Employee Immunity
As a general rule in Hawai'i, workers’ compensation is an injured employee’s exclusive remedy for an injury arising out of and in the course of employment. HRS § 386-5 provides in pertinent part that “[t]he rights and remedies herein granted to an employee or the employee’s dependents on account of a work injury suffered by the employee shall
HRS § 386-8, in like manner, extends immunity from suit to an injured worker’s co-employees. HRS § 386-8 provides in pertinent part that:
When a work injury for which compensation is payable under this chapter has been sustained under circumstances creating in some person other than the employer or another employee of the employer acting in the course of his [or her] employment a legal liability to pay damages on account thereof, the injured employee or his [or her] dependents ... may claim compensation under this chapter and recover damages from such third person.
(Emphasis added.) HRS § 386-8 also provides, however, that “[ajnother employee of the same employer shall not be relieved of his [or her] liability as a third party, if the personal injury is caused by his [or her] wilful and wanton misconduct.” See also Hirasa v. Burtner, 68 Haw. 22, 25, 702 P.2d 772, 775 (1985) (holding that “[i]f HRS- § 386-8 allows an injured employee to file a direct action against his [or her] co-employee for wilful and wanton misconduct, then logically a third-party plaintiff who is not a co-employee should also have the right to im-plead the wilful and wanton misconduct of the injured worker’s co-employee. In both instances, the liability for injuries sustained in the accident is allegedly due to the wilful and wanton misconduct of the injured worker’s co-employees.”).
B. Hawaii’s “Wilful and Wanton Misconduct” Exception To Co-Employee Immunity Does Not Require An Intent to Cause Injury in Order to Apply
Iddings asserts that the trial court erred in granting summary judgment against her and in favor of Dr. Mee-Lee because the “wilful and wanton misconduct” exception to co-employee immunity, pursuant to HRS § 386-8, does not require proof that the injuring co-employee possessed a specific intent to cause injury to the injured co-employee in order to apply. We agree for three reasons: (1) the plain meaning of the words used in the term “wilful and wanton misconduct” includes reckless conduct that does not require a specific intent to cause injury within its scope; (2) allowing suits between co-employees based on reckless conduct does not contravene or undermine the purpose of co-employee immunity in Hawaii’s workers’ compensation scheme, or the purposes underlying workers’ compensation in general; and (3) the scope of Hawaii’s uniquely phrased exception to co-employee immunity more closely resembles the statutory schemes in other jurisdictions that exclude injuries caused by conduct that does not require a specific intent to cause injury than in those jurisdictions that include such injuries. We discuss each reason in turn.
. 1. Plain Meaning.
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language contained in the statute itself.
The term “willful and wanton misconduct” is defined in pertinent part as “[c]onduet which is either intentional or committed under circumstances exhibiting a reckless disregard for the safety of others [.] ” Black’s Law Dictionary 1600 (6th ed.1990) (emphasis added and citation omitted). “Willful” is defined in pertinent part as “[p]remeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.” Id. at 1599 (emphasis added); see also Marshall v. University of Hawai'i, 9 Haw.App. 21, 36 n. 18, 821 P.2d 937, 946 n. 18 (1991) (quoting identical definition). “Wanton” is defined in pertinent part as “[rjeckless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences.” Id. at 1582 (emphases added and citation omitted).
As is evident from the above-quoted definitions, the plain meaning of the term “wilful and wanton misconduct” encompasses both reckless conduct that lacks a specific intent to cause injury and intentional conduct motivated by a specific intent to cause injury.
2. Co-Employee Suits Based on Reckless Conduct Are Not Inconsistent With the Purposes of Hawai'i’s Workers’ Compensation Scheme Or the Purposes of Workers’ Compensation in General.
As Professor Larson notes, “[t]he necessity for workers’ compensation legislation arose out of the coincidence of a sharp increase in industrial accidents attending the rise of the factory system and a simultaneous decrease in the employee’s common law remedies for his [or her] injuries.” 1 A. Larson, The Law of Workmen’s Compensation § 4.00, at 2-1 (1995) [hereinafter Larson]; see also generally J. Henderson, Jr. & R. Pearson, The Torts Process, ch. 9.A, at 844 (3rd ed. 1988) (“One of the significant impacts of the Industrial Revolution in this country in the latter half of the nineteenth century was the rapid increase in industrial accidents and employee injuries. Unsafe working conditions combined with expansion of the industrial work force to produce a steady stream, and then a flood, of disabling accidents.”). The combination of the virtual inevitability of work-related accidents and the austere effects of the fellow-servant rule, which barred recovery from a common master for the negligence of a fellow servant, see, e.g., Farwell v. Boston & Worcester R., 4 Met. (Mass.) 49 (1849), and the doctrines of contributory negligence and assumption of risk, left many injured workers and their dependents without a remedy. Yet to allow suits based on negligence in the workplace would undoubtedly affect the economic livelihood and/or survival of many industries. A compromise was thus struck in the form of a scheme of workers’ compensation, wherein the employee “is automatically entitled to certain benefits whenever he [or she] suffers a ‘personal injury by accident arising out of and in the course of employment’ or an occupational disease” and “negligence and fault are largely immaterial, both in the sense that the employee’s contributory negligence does not lessen his [or her] rights and in the sense that the employer’s complete freedom from fault does not lessen his [or her] liability[.]” 1 Larson, supra, § 1.10 at 1-1 to 1-2.
In accord with the foregoing principles, one of the primary purposes underlying the implementation of a workers’ compensation scheme in Hawai'i was to eliminate suits based on negligence in the workplace and to spread the costs of work-related inju-
[T]he purpose of the Workers’] Compensation Law is to charge against industry the pecuniary loss arising from disabling or fatal personal injury, regardless of negligence by the employee or lack of negligence by the employer; that it is designed to obtain for an injured work[er] or his [or her] dependents an assured, certain and prompt compensation to replace the doubtful right accorded by common law, and to secure for the employer freedom from vexatious, delaying and uncertain litigation with its possibilities of heavy penalties by way of verdicts and high costs; that it is based on the obligation of industry to recognize accidental injury and death arising out of employment as one of the costs of production....
71 Haw. at 364, 791 P.2d at 1260-61 (emphasis added) (quoting Costa Minors v. Flintkote Co., 42 Haw. 518, 530 (1958)).
Moreover, as Professor Larson notes, the purposes behind employer immunity from negligence actions is analogous to, and furthered by, extension of immunity to co-employee suits based on negligence as well:
The reason for the employer’s immunity is the quid pro quo by which the employer gives up his [or her] normal defenses and assumes automatic liability, while the employee gives up his [or her] right to common-law verdicts. This reasoning can be extended to the tortfeasor co[-]employee; he [or she], too, is involved in this compromise of rights. Perhaps, so the argument runs, one of the things he [or she] is entitled to expect in return for what he [or she] has given up [i.e., “normal defenses”] is freedom from common-law suits based on industrial accidents in which he [or she] is at fault.
2A Larson, supra, § 72.22, at 14-152. With the foregoing principles and purposes in mind, allowing suits between co-employees based on reckless conduct does not impair or contravene the workers’ compensation scheme’s elimination of suits between co-employees based on employees’ negligence in the workplace; to the contrary, allowing suits against an employee for torts based on intentional or reckless conduct may deter the employee from future misconduct, thereby contributing to a safer workplace.
Moreover, we have often noted, in the context of punitive damages, that reckless conduct is capable of being deterred. See, e.g., Masaki v. General Motors Corp., 71 Haw. 1, 16, 780 P.2d 566, 575 (1989) (“We have repeatedly said that the fundamental purpose underlying an award of exemplary or punitive damages is to punish the wrongdoer and to deter him [or her] and others from committing similar wrongs and offenses in the future.... [In order'to merit an award of punitive damages,] [t]he plaintiff must prove by clear and convincing evidence that the defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations, or where there has been some wilful misconduct or that entire want of care which would raise the presumption of a conscious indifference to consequences.” (Emphases added and citations omitted.)); Ross, 76 Hawai'i at 466, 879 P.2d at 1049 (“In order to recover punitive damages based on a breach of a contract, one must show that the contract was breached in such a wilful, wanton, or reckless manner as to result in a tortious injury.” (Internal quotation marks, brackets, and citation omitted.) (Emphasis added.)); Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 139 n. 23, 839 P.2d 10, 37 n. 23 (1992) (“Although this court has recognized that punitive damages may be awarded for a breach of contract, we have also limited such a recovery to instances in which the contract is breached in such a
The Supreme Court of North Carolina has likewise concluded that:
Permitting an injured worker to bring an action against a co-employee for an intentional tort places responsibility upon the tortfeasor where it belongs. Since the commission of an intentional tort includes a constructive or actual intent to injure, allowing an injured co-worker to sue the tortfeasor serves as a deterrent against future misconduct. By allowing wanton negligence to support awards of punitive damages, we have recognized that such conduct can be deterred and should be treated as an intentional tort. Therefore we hold that the Workers’ Compensation Act does not shield a co-employee from liability for injury caused by his [or her] willful, wanton and reckless negligence.
Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244, 249 (1985) (emphasis added). We therefore hold that allowing suits between co-employees based upon reckless conduct does not contravene or impair the purposes of HawaiTs workers’ compensation scheme.
3. Interpretation of Exceptions to Co-Employee Immunity in Other Jurisdictions Is Consistent With an Interpretation of HRS § 386-8 That Allows Co-Employee Suits Based on Reckless Conduct.
Both parties cite to case law from other jurisdictions in support of their respective interpretations of HRS § 386-8. Of the other jurisdictions that provide co-employees with immunity from common law tort actions in situations covered by workers’ compensation acts, thirty-four states have codified a statutory exception to such immunity in eases involving injuries caused by conduct committed with a degree of culpability greater than negligence, worded in various ways. See, e.g., Ariz. Const., art. 18, § 8 (excepting conduct from co-employee immunity “if the injury is the result of an act done by the employer or a person employed by the employer knowingly and purposely with the direct object of injuring another, and the act indicates a wilful disregard of the life, limb or bodily safety of employees[.]”); Cal. Labor Code § 3601(a) (1971) (excepting “wilful and unprovoked physical act[s] of aggression by another employee”); Conn. Gen.Stat. Ann. § 31-293a (1972) (excepting “wilful or malicious” conduct); Fla. Stat. § 440.11(1) (1988) (excepting acts committed with “willful and wanton disregard” or “unprovoked physical aggression” or with “gross negligence”); Iowa Code Ann. § 85.20 (Spec.Pamp.1975) (excepting acts done with “gross negligence” amounting to “wanton neglect”); Minn.Stat. § 176.061, subd. 5(c) (1986) (excepting injuries resulting from a co-employee’s “gross negligence” or injuries “intentionally inflicted by the co-employee.”); Mont. Rev.Codes Ann. § 92-204.1 (Cum.Supp.1975) (excepting “intentional and malicious” conduct); Neb. Rev.Stat. § 48-111 (1975) (excepting injuries “proximately caused by ... wilful and unprovoked physical aggression”); Or.Rev.Stat. § 656.018(3)(a) (1974) (excepting injuries caused by “willful and unprovoked aggression” of a co-employee); Pa. Stat. Ann., title 77, § 72 (Cum.Supp.1975) (excepting “intentional wrongs”); W. Va.Code. Ann. § 23-2-6a (1973) (excepting injuries caused by a co-employee’s “deliberate intention,” defined in section 23-4-2(c)(2)(i) as a “consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee”); see generally 2A Larson, supra, § 72.21, at 14-119 n.23 (1995).
Although, as noted above, several other jurisdictions have similarly worded exceptions to co-employee immunity, HawaiTs formulation of its exception is unique in that the scope of the conduct to which it applies is defined solely by the terms “wilful and wanton.” Case law from other jurisdictions is therefore of limited assistance in interpreting
For example, in Nolan v. Borkowski, 206 Conn. 495, 538 A.2d 1031 (1988), the plaintiff injured her back while working at her job at a bakery. The plaintiff brought suit pursuant to Connecticut General Statutes § 31-293a, which allowed suits between co-employees for injuries based on “wilful and malicious” wrongs. In her complaint, the plaintiff alleged that the defendants, her supervisors, deliberately disregarded her doctor’s restrictions on the range of weight she should lift and the hours she should work. The trial court granted summary judgment in favor of the defendants and against the plaintiff. The Supreme Court of Connecticut affirmed, holding that summary judgment was properly granted because the plaintiffs affidavits, submitted in opposition to the defendants’ summary judgment motion, were insufficient to establish that the defendants’ actions were “wilful and malicious.” In defining the term “wilful and malicious,” the court noted:
A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional. A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent- [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.
Id. 538 A.2d at 1033-34 (brackets and omissions in original) (citations omitted).
Similarly, in Soares v. City of Oakland, 9 Cal.App.4th 1822, 12 Cal.Rptr.2d 405 (1992), the plaintiff was injured by a co-employee while performing his job as a civilian jailer at the Oakland city jail. As previously noted, California Labor Code § 3601(a)(1) allows for suits between co-employees when the injured employee’s injury is “proximately caused by the willful and unprovoked physical act of aggression of the other employee.” The action proceeded to a jury trial, and the jury exonerated the defendants. The California Court of Appeal affirmed the trial court’s giving of a jury instruction that provided that “[a]n employee may recover damages for an injury against a fellow employee for a willful and unprovoked physical act of aggression. ... Willful is defined as an intentional and deliberate act done with the specific intent to injure the person.” Id. 12 Cal.Rptr.2d at 407. The court specifically held that “ ‘acts of aggression’ are only ‘willful’ for purposes of section 3601(a)(1) if they are intended to injure.” Id.
Unlike Connecticut or California, however, Hawaii’s statutory exception to co-employee immunity is not limited to “wilful” or “malicious” conduct; it includes “wanton” conduct, which we believe bears closer resemblance to statutes in other jurisdictions that provide a more expansive scope to their exception to co-employee immunity. For example, in Thompson v. Bohlken, 312 N.W.2d 501 (Iowa 1981), the Supreme Court of Iowa was presented with the opportunity to interpret Iowa Code § 85.20 (1977), which provides that workers’ compensation constitutes the exclusive remedy for injuries caused by a co-employee, except where the injury is “caused by the other employee’s gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another.” Id. at 504 (emphasis added). In analyzing the scope of the exception, the Thompson court noted:
Similar to wilful or reckless conduct, “wanton” conduct lies somewhere between the mere unreasonable risk of harm in ordinary negligence and intent to harm. [W. Prosser, Handbook of the Law of Torts*11 § 34] at 184-85 [(4th ed.1971)]. The author further explains the concept:
The usual meaning assigned to “wilful,” “wanton” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to or so obvious that he [or she] must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.
Id. at 185 (emphasis added). It is said that the concept involves the combination of attitudes: a realization of imminent danger, coupled with a reckless disregard or lack of concern for the probable consequences of the act.... Another authority labels both “wanton” and “wilful” misconduct as “reckless disregard for the safety of another,”
Restatement [ (Second) of Torts,) § 500, at 587 [ (1965) ], and distinguishes it from intentional misconduct only in that it requires a realization of a strong probability of harm to another rather than the substantial certainty accompanying an intentional act, id., § 500(f), at 590.
Other authorities distinguish between wilfulness, characterized by intent to injure, and wantonness, which merely implies an indifference to whether the act will injure another. E.g., 57 Am.Jur.2d Negligence § 102, at 452-58 (1971). The difference is illustrated by comparing the throwing of an object with intent to strike another and throwing it without such intent, but believing that it will, in fact, strike another, and proceeding with indifference as to whether it does not.... Wantonness is said to be less blameworthy than an intentional wrong only in that instead of affirmatively wishing to injure another, the actor is merely willing to do so.
Id. at 504-505 (emphasis in original). Based on the analysis quoted above, the Thompson court formulated a three-part test to determine when conduct would rise to the level of “wanton neglect,” the elements of which are: “(1) knowledge of the peril to be apprehended; (2) knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril.” Id. at 505.
Many cases since Thompson have interpreted Thompson’s, three-part test. See Larson v. Massey-Ferguson, Inc., 328 N.W.2d 343 (Iowa.Ct.App.1982) (evidence that employee’s supervisor knew of danger associated with post-hole digger machine’s unshielded “power take-off shaft,” that he was familiar with the reasons underlying subsequent Occupational Safely and Health Administration regulations requiring guards to shield the shafts, that he knew that his order requiring weight to be placed on post-hole digger arm required worker to work in close proximity to the unshielded shaft, and that injury was probable whenever working near unshielded moving parts sustained finding that supervisor was guilty of wanton neglect and thus could be held liable to injured worker); Taylor v. Peck, 382 N.W.2d 123 (Iowa 1986) (holding that there was insufficient evidence of wanton neglect by co-employee toward claimant to impose liability on co-employee, where there had been no previous accidents on particular punch press, no safety inspections to alert employee of danger or malfunction concerning activation of machine, and no evidence that co-employee knew that safety mechanism was partially dismantled, and co-employee did not instruct claimant to put her hand into die to cheek loose pin); Justus v. Anderson, 400 N.W.2d 66 (Iowa.Ct.App.1986) (finding that co-employee who redesigned warehouse should have foreseen that his conduct would probably result in injury to warehouse employee, for purpose of determining that co-employee was grossly negligent so as to permit tort recovery, was not sufficiently supported by evidence that co-employee knew that four-high stack of paper products might fall and seriously injure someone, absent evidence that co-employee knew that, in this situation, injury was probable, as opposed to merely possible); Woodruff Const. Co. v. Mains, 406 N.W.2d 787 (Iowa 1987) (evidence that foreman was verbally abusive toward claimant for most of day and, prior to claimant’s falling into hole while working on roofing job, foreman ordered claimant to report to him, purportedly causing claimant to walk into the hole, deemed insufficient to establish that
We agree with the Iowa courts’ anal-yses and adopt the three-part test first enunciated in Thompson in aid of our interpretation of HRS § 386-8. Therefore, the term “wilful and wanton misconduct,” as used in HRS § 386-8, includes conduct that is either: (1) motivated by an actual intent to cause injury; or (2) committed in circumstances indicating that the injuring employee (a) has knowledge of the peril to be apprehended, (b) has knowledge that the injury is a probable, as opposed to a possible, result of the danger, and (c) consciously fails to avoid the peril.
C. Claims Based on “Wilful and Wanton Misconduct” Must be Proven by Clear and Convincing Evidence
Although we hold today that the “wilful and wanton misconduct” exception to co-employee immunity set out in HRS § 386-8 includes suits based on reckless conduct, we are also cognizant of two additional concerns, alleviation of wMch would be accomplished with a single solution: the imposition of the clear and convincing standard of proof on claims of wilful and wanton misconduct. We address each concern in turn.
First, as previously discussed, a central feature of Hawaii’s workers’ compensation system is the elimination of suits based on negligence in the workplace.
Relative to this concern, the clear and convincing standard of proof would endow a factfinder’s determination that a suit is based on wilful and wanton misconduct with a greater degree of certainty. In Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989), we held that the clear and convincing standard of proof applied to a claim for punitive damages. In so holding, we noted that “[t]he purpose of fixing a particular standard of proof is to instruct the fact-finder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication[,]” id. at 13, 780 P.2d at 574 (citation omitted), and that the clear and convincing evidence standard has been recognized as “a more exacting standard [that] has been applied to a wide variety of civil cases where for policy reasons the courts require a higher than ordinary degree of certitude before making factual findings.” Id.
Similarly, application of the clear and convincing standard of proof to tort actions against defendant co-employees would impose “a higher than ordinary degree of certitude” upon the factfinding function, thus according greater protection to the defendant co-employee and furthering the objective of the co-employee immunity provisions of HRS § 386-8. As we noted in Masaki:
The choice of standard of proof also “serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323, 329 (1979).
The law has evolved three standards of levels of proof for different types of cases. In most civil proceedings, such as a ease involving a monetary dispute between private parties, the plaintiff must show by a “preponderance of the evidence” that his or her claim is valid. Under the preponderance standard, the parties share the risks of an erroneous verdict in roughly equal fashion. Id. at 423, 99 S.Ct. at 1808, 60 L.Ed.2d at 329. The preponderance standard directs the factfinder to decide whether “the existence of the contested fact is more probable than its nonexistence.” E. Cleary, McCormick on Evidence § 339, at 957 (3d ed.1984). As one commentator points out, to prevail, “[a] plaintiff need only offer evidence sufficient to tip the scale slightly in his or her favor, and a defendant can succeed by merely keeping the scale evenly balanced.” Comment, The Imposition of Punitive Damages in Product Liability Actions in Pennsylvania, 57 Temp. L.Q. 203, 224 (1984).
At the other end of the spectrum, in criminal proceedings, the government is required to prove its case “beyond a reasonable doubt.” Society has judged that it is significantly worse for an innocent [person] to be found guilty of a crime than for a guilty [person] to go free. Therefore, as stated by the Supreme Court, “[w]here one party has at stake an interest of transcending value — as a criminal defendant his [or her] liberty — this margin of error is reduced as to him by the process of placing on the other party the burden ... of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt.” Speiser v. Randall, 357 U.S. 513, 525-26[,] 78 S.Ct. 1332, 1341[,] 2 L.Ed.2d 1460, 1472 (1958); see also Addington, 441 U.S. at 423-24, 99 S.Ct. at 1808, 60 L.Ed.2d at 329.
The level of proof between these two extremes is that of “clear and convincing” evidence....
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Thus, “clear and convincing” evidence may be defined as an intermediate standard of proof greater than a preponderance of the evidence, but less than proof beyond a reasonable doubt required in criminal cases. It is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable. See Welton v. Gallagher, 2 Haw.App. 242, 245-46, 630 P.2d 1077, 1081 (1981); Bud Wolf Chevrolet, Inc. v. Robert*14 son, 519 N.E.2d 135, 138 (Ind.1988); McCormick, supra, § 340 at 959-60.
Id. at 14-15, 780 P.2d at 574-75.
Second, we are also aware that, as in cases involving allegations of fraud, quasi-criminal wrongdoing, and the imposition of punitive damages, a suit based on a co-employee’s “wilful and wanton misconduct” may have a stigmatizing effect on a co-employee defendant’s reputation. The clear and convincing standard would ameliorate this risk. As we have previously noted, the clear and convincing standard
is typically used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of have his [or her] reputation tarnished erroneously by increasing the plaintiffs burden of proof.
Id. at 15, 780 P.2d at 574 (citation and internal quotation marks omitted). Similarly,
Clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, and where this high standard is required to sustain claims which have serious social consequences or harsh or far reaching effects on individuals to prove willful, wrongful and unlawful acts to justify an exceptional judicial remedy.
So, in a number of cases where an adverse presumption is to be overcome, or on grounds of public policy and in view of peculiar facilities for perpetrating injustice by fraud or perjury, the degree of proof required is expressed in such terms as “clear and convincing” and the phrase “preponderance of the evidence” has been expressly disapproved as an insufficient measure of the proof required.
Id. at 15-16, 780 P.2d at 575 (quoting Travelers Indem. Co. v. Armstrong, 442 N.E.2d 349, 360 (Ind.1982) (brackets and ellipsis points omitted)). In keeping with these principles, Hawai'is appellate courts have implemented the clear and convincing standard of proof in a myriad of situations. See, e.g., Carr v. Strode, 79 Hawai'i 475, 904 P.2d 489 (1995) (proof to overcome presumption of paternity); State v. Miller, 79 Hawai'i 194, 900 P.2d 770 (1995) (proof to establish that criminal defendant is not a flight risk or danger to the community); State v. Lopez, 78 Hawai'i 433, 896 P.2d 889 (1995) (inevitable discovery rule); Cresencia v. Kim, 10 Haw.App. 461, 878 P.2d 725 (1994) (fraud); Calleon v. Miyagi, 76 Hawai'i 310, 876 P.2d 1278 (1994) (punitive damages); Maria v. Freitas, 73 Haw. 266, 832 P.2d 259 (1992) (constructive trust); Office of Disciplinary Counsel v. Rapp, 70 Haw. 539, 777 P.2d 710 (1989) (professional misconduct); Chan v. Chan, 7 Haw.App. 122, 748 P.2d 807 (1987) (civil contempt); Mehau v. Gannett Pacific Corp., 66 Haw. 133, 658 P.2d 312 (1983) (defamation); Woodruff v. Keale, 64 Haw. 85, 637 P.2d 760 (1981) (termination of parental rights); Tanuvasa v. City and County of Honolulu, 2 Haw.App. 102, 626 P.2d 1175 (1981) (proof that government official acted with malice); Boteilho v. Boteilho, 58 Haw. 40, 564, P.2d 144 (1977) (oral contract for sale of real estate).
Accordingly, for the foregoing reasons, we hold that claims based on wilful and wanton misconduct must be proven by clear and convincing evidence.
D. The Dissent Advocates a Position That Unnecessarily Departs From the Plain Meaning of the Workers’ Compensation Statute and Effectively Contravenes Statutory Rights Granted by the Workers’ Compensation Scheme Set Out by HRS Chapter 386
The dissent takes issue with virtually all of the foregoing reasoning, encouraging instead the adoption of a position that effectively grants Dr. Mee-Lee — and ostensibly all supervisory employees — immunity co-extensive with that accorded the employer under HRS § 386-5 by virtue of the supervisory nature of their positions. The position advocated by the dissent is imprudent for five principal reasons, which we discuss in turn as follows.
1. Plain Meaning.
First, the position urged by the dissent is contrary to the plain meaning of the lan
Additionally, the plain language of HRS § 386-8, describing the right to sue co-employees for injurious wilful and wanton misconduct, is without limitation; HRS § 386-8 provides in pertinent part that “[ajnother employee of the same employer shall not be relieved of his [or her] liability as a third party, if the personal injury is caused by his [or her] wilful and wanton misconduct.” A plain reading of the language used provides no indication that the legislature’s use of the terms “another employee of the same employer” sought to limit suits based on wilful and wanton misconduct solely to non-supervisory co-employees. To the contrary, the broad scope of the terms used instead implies a legislative intent to include all other employees of the same employer within the scope of exposure to suit without limitation.
2. Departure From the Plain Meaning of the Statute Is Unwarranted and Unnecessary.
Second, it is well settled that this court may depart from a plain reading of a statute where a literal interpretation would lead to absurd and/or unjust results. See, e.g., Sato v. Tawata, 79 Hawai'i 14, 17, 897 P.2d 941, 944 (1995) (court may examine sources other than language of statute itself to determine if literal construction would produce absurd or unjust result inconsistent with the policies of the statute); Dines v. Pacific Ins. Co., Ltd., 78 Hawai'i 325, 337, 893 P.2d 176, 188 (1995) (Ramil, J., dissenting) (“Statutory construction dictates that an interpreting court should not fashion a construction of statutory text that effectively renders the statute a nullity or creates an absurd or unjust result.”). Presumably in keeping with this principle of statutory construction, the dissent contends that “it would be absurd to have the employer provide benefits to the injured employee through workers’ compensation, and, at the same time, indemnity coverage to the supervisory employee.” Dissenting opinion at - n. 11, 919 P.2d at 290 n. 11.
The infirmity in the dissent’s position is that indemnity agreements in the workers’ compensation context are not only not absurd, but, pursuant to our holdings in previous cases, entirely permissible. First, it is well-established in our precedent that “the exclusive liability provision [of HRS § 386-5] precludes only those actions which arise ‘on account’ of the employee’s injury[,]” and that “[a] third party claim for indemnity is not based on the employee’s injury but is for reimbursement based upon contract or some other independent duty eodsting between in-demnitor and indemnitee.” Kamali v. Hawaiian Elec. Co., Inc., 54 Haw. 153, 159, 504 P.2d 861, 865 (1972) (emphasis added); see also Keawe v. Hawaiian Elec. Co., Inc., 65 Haw. 232, 236-37, 649 P.2d 1149, 1153 (1982);
On appeal, the ICA affirmed the trial court’s dismissal of Kaiser’s and Dillingham’s cross-claims, holding that:
Kaiser and Dillingham contend that Association’s indemnity obligation is based upon Association’s breach of an independent duty owed to them. Dillingham states that Association’s duty “was to properly maintain and repair the Mt. Terrace condominium building and to adequately warn its employees of a known, potentially dangerous condition.” However, the duty argued for by Dillingham is not owed to Kaiser and Dillingham, and cannot be relied upon by them.
The question of duty is a question of law to be determined by reference to the body of statutes, rules, principles, and precedents which make up the law. We have not been made aware of any independent duty owned by Association to either Kaiser or Dillingham, or both, which would give rise to Association’s liability to them as an indemnitor.
It follows that the cross-claims of implied indemnity made by Kaiser and Dill-ingham against the Association are[, tracking the language of HRS § 386-5,] “on account of’ Messier’s injuries, and were properly disposed of.
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As a matter of law Kaiser and Dilling-ham are not entitled to indemnity from Association and judgment was properly entered against them.
Id. at 539, 735 P.2d at 949 (citations omitted). Therefore, applied to the present ease, absent a contractual indemnification agreement between CMC, as indemnitor, and Dr. Mee-Lee, as indemnitee, or another independent duty distinct from the duty to provide Id-dings with a safe place to work, Dr. Mee-Lee will not be able to secure indemnity from CMC for a judgment against him in a suit by Iddings, should Iddings prevail. The dissent’s concerns over a lengthy, wasteful cycle of money changing hands, therefore, are unfounded.
Moreover, it is further well settled that contractual indemnification agreements and “hold harmless” clauses are valid in the workers’ compensation context and do not contravene or undermine the purposes underlying workers’ compensation in general. For example, in Keawe, we noted that:
In Karmli, we determined, on appeal, that while this provision precluded actions for contribution by a third party tortfeasor against an employer, it did not prohibit actions against an employer based on indemnity. We reasoned that, unlike an action based on contribution, an action for indemnification did not arise “on account” of the employee’s injury.... However, we cautioned, that although a third party is entitled to sue an employer covered by Hawaii’s Worker’s Compensation law for indemnity based on a breach of some independent duty, “contracts of indemnity are [to be] strictly construed, particularly where the indemnitee claims that it should be held safe from its own negligence.”
The dissent further contends that “[a] typical situation where this absurd result would occur is the following: (1) the injured employee would seek workers’ compensation, in addition to damages from the supervisory employee; (2) the supervisor would thereby seek indemnity from the employer; and finally, (3) the employer would then seek reimbursement from the injured employee.” Dissenting opinion at 28 n. 11, 919 P.2d at 290 n. 11. We fail, however, to see the absurdity stemming from these three propositions. Proposition (1) merely constitutes the employee exercising his or her rights under the workers’ compensation scheme and the express right to sue due to wilful and wanton misconduct under HRS § 386-8. Proposition (2), as explained above, will only come to fruition in the presence of a contractual indemnification agreement or an independent duty between employer and supervisory employee, principles long established in our jurisprudence. Finally, proposition (3) simply reiterates the employer’s right of reimbursement for workers’ compensation benefits paid out by the employer mandated by HRS § 386-8, which provides in pertinent part that:
If the [third party] action is prosecuted by the employee alone ... there shall be applied, out of the amount of the judgment or settlement proceeds, the amount of the employer’s expenditure for compensation, less his [or her] share of.. . expenses and attorney’s fee. On application of the employer, the court shall allow as a first lien against the amount of the judgment for damages or settlement proceeds, the amount of the employer’s expenditure for compensation, less his share of such expenses and attorney’s fee.
If the action is prosecuted both by the employee and the employer ... [a]fter the payment of ... expenses and attorneys’ fees there shall be applied out of the amount of the judgment for damages, or settlement proceeds an amount sufficient to reimburse the employer for the amount of his expenditure for compensation and any excess shall be paid to the injured employee or other person entitled thereto.
(Emphasis added); cf. Shimabuku v. Montgomery Elevator Co., 79 Hawai'i 352, 361, 903 P.2d 48, 57 (1995) (holding, inter alia, that, pursuant to HRS § 386-8, employer entitled to reimbursement from portion of employee’s settlement with third-party tortfeasor “properly allocable” to employee’s tort claim).
3. All of the Case Authority Cited by the Dissent in Section VII is Distinguishable.
Third, all of the authority from other jurisdictions cited by the dissent in support of its positions in section VII, see dissenting opinion at 27-30, 919 P.2d at 289-292, is readily distinguishable from both the present context and Hawaii’s workers’ compensation scheme because all of the decisions are based on statutory workers’ compensation schemes that do not incorporate co-employee immunity in actions based on negligence. See, e.g., Simmons First Nat’l Bank v. Thompson, 285 Ark. 275, 686 S.W.2d 415, 416-17 (1985) (“Under [Ark.- Stat. Ann. § 81-1304 (Supp. 1983)], a negligent coemployee is regarded
Similarly, the decision in Raulerson v. Roehr, 511 So.2d 1027 (Fla.Dist.Ct.App.1987), reaches an analogous result, albeit by different means. As noted by the dissent, the Raulerson court affirmed the trial court’s grant of directed verdicts in favor of the defendant supervisory employees because the record lacked any indication that the supervisor committed “any affirmative act of negligence which went beyond the scope of his employer’s duty to provide a safe place to work.” Id. at 1030. The Raulerson court held that the duty allegedly breached was the nondelegable duty of the employer to provide a safe place to work, and, therefore, because the duty ran between the supervisory employee to the employer, the injured putative co-employee could not sue the supervisory employee for breach of that duty. The Raulerson court, however, did not bar suits against supervisory co-employees under all circumstances. Relying on an earlier decision in West v. Jessop, 339 So.2d 1136 (Fla.Dist.Ct.App.1976), the court acknowledged that, where “something extra” over and beyond the duty owed the employer is present, the supervisory employee would be subject to suit.
In sum, in a fashion similar to the other eases relied upon by the dissent, the Rauler-son decision judicially effects a scheme similar to that already achieved by the Hawai'i legislature in HRS chapter 386: a supervisory employee is immune from suits based on the negligent breach of a duty in the course of his or her employment absent “something extra” — that is, wilful and wanton misconduct.
Thus, as the previous discussion indicates, analogous resulting schemes may be achieved in a variety of means: a jurisdiction may
The controlling principle, therefore, is judicial deference to the will of the legislature. The language and scheme of HRS chapter 386 reflects the Hawaii legislature’s choices regarding Hawaii’s workers’ compensation system, and it is our duty to respect those choices when we interpret the statute. See, e.g,, Allstate Ins. Co. v. Hirose, 77 Hawai'i 362, 364, 884 P.2d 1138, 1140 (1994) (“Our duty in interpreting statutes is to give effect to the legislature’s intent which is obtained primarily from the language of the statute.”). Pursuant to HRS § 386-8, all co-employees acting within the course of their employment, regardless of position, status, or responsibility, are immune from suits based on their negligence to the very same extent as the employer would be in the same position; the same group of employees, however, is subject to a single limitation, in that they remain subject to suits based on wilful and wanton misconduct. In other words, the group of employees subject to the statutory “wilful and wanton misconduct” exception to co-employee immunity is the same group that is accorded statutory co-employee immunity. Even the dissent would undoubtedly agree that co-employee immunity extends to all employees. Under the statute, however, wherever co-employee immunity extends, so does its exception. This scheme reflects the legislature’s choice to focus on culpability, rather than status, position, or responsibility as the determining factor in limiting co-employee immunity. To import judicially-created limiting devices from other jurisdictions with dissimilar statutory schemes may unfairly and unnecessarily disturb the delicate balance of rights as set out by the express terms of the workers’ compensation statute.
4. Suits Based on Reckless Conduct Do Not “Easily Circumvent” the Immunity Provisions of HRS Chapter 386.
Fourth, the dissent’s contention that the immunity provisions of HRS chapter 386 may be “easily circumvented by simply claiming that a supervising employee allowed an employee to work in an unsafe environment,” dissenting opinion at 19, 919 P.2d at 281, is specious, and the dissent’s fear that “almost any claim for an on-the-job injury may be framed as a claim under HRS § 386-8 against a supervising employee for ‘wantonly’ allowing the employee to work in an unsafe environment,” id., is based on an incomplete statement of the standard adopted by this opinion for “wilful and wanton misconduct.”
As previously noted, the standard adopted requires evidence that the tortfeasor co-employee’s conduct was either: (1) motivated by an actual intent to cause injury; or (2) committed in circumstances indicating that the injuring employee (a) has knowledge of the peril to be apprehended, (b) has knowledge that the injury is a probable, as opposed to a possible, result of the danger, and (c) consciously fails to avoid the peril. As noted by the Iowa Supreme Court’s decision in Swanson v. McGraw, 447 N.W.2d 541, 543 (Iowa 1989), the above-delineated standard for wanton conduct is “difficult to prove.”
In order to plead and prove a case based on wilful and wanton misconduct, therefore, allegations and proof are required for either an actual intent to injure on the part of the tortfeasor co-employee, or all three of the elements of “wanton” conduct, including a conscious failure to avoid the peril. The dissent’s concerns over the proliferation of suits is therefore diminished when placed in its proper perspective: it remains the plaintiffs burden to prove all the elements of a suit based on wilful and wanton misconduct.
5. Public Policy and Social Costs.
Finally, the net effect of adoption of the dissent’s position may lead to disturbing re-
Consider an extreme, yet simple example: the supervisor on a renovation project, whose responsibility it is to discharge the employer’s duty to provide a safe place to work, orders the excavation of a large portion of the floor immediately outside a co-employee’s office door on the second floor of a building, leaving a gaping hole' to the floor below. Carrying out her duty to provide a safe place to work, the supervisor orders the hole covered with paper-thin balsa wood. The unfortunate employee, whose office immediately abuts the hole, strolls out, falls through the hole, and is severely injured. Under the dissent’s position, because the supervisor is either a “supervisory employee” or is discharging the employer’s nondelegable duty to provide a safe place to work, the supervisor would be absolutely immune from co-employee suits, even if she had covered twenty holes with balsa wood in the past, through which twenty people had fallen and were injured.
E. Genuine Issues of Material Fact Exist Regarding Whether Dr. Mee-Lee Engaged in ‘Wilful and Wanton Misconduct.”
In the present case, Iddings asserts that, because Dr. Mee-Lee was aware of the risk of injury stemming from crowded patient and furniture conditions in the CMC’s Intensive Care Module and yet failed to reduce the patient population, and, thus, the amount of furniture necessary to accommodate the patients, Dr. Mee-Lee engaged in “wilful and wanton misconduct.” Iddings’s affidavit, submitted in support of her memorandum in opposition to Dr. Mee-Lee’s motion for summary judgment, avers in pertinent part:
5. For more than one year prior to my accident, the nursing management personnel in the Human Services Unit had been extremely concerned with the overcrowded conditions within the unit in general and within the Intensive Care Module in particular.
6. As early as August 15, 1990, Defendant Mee-Lee was advised that an unsafe physical environment existed within the Human Services Unit as a result of overcrowding.
7. Patients within the Intensive Care Module frequently are violent. Overcrowding increases the likelihood of violent responses among the patients. In addition, overcrowding results in a dangerous physical environment because it is necessary to introduce extra furniture into the unit to accommodate the additional patients.
8. Beginning in August of 1990, and continuing thereafter, I attended many meetings in which different members of our staff told Defendant Mee-Lee that overcrowding in the Human Service Unit presented a dangerous condition to staff working in the unit.
9. I am aware of approximately ten (10) individuals who were injured within the Human Services Unit between May of 1991 and the date of my accident. I am sure that Defendant Mee-Lee was aware of these incidents because they were discussed at meetings where we both were present.
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12. Defendant Mee-Lee exercised control over the patient census when it was necessary for his purposes. When Castle Medical Center was inspected by the Joint Committee on Accreditation of Hospitals (“JCAHO”), the census in the Human Services Unit was reduced to less than the licensed capacity. Staff was instructed to remove the third bed from each patient room before their visit. After the visit, the census again increased to more than the authorized capacity.
IV. CONCLUSION
Based on the foregoing discussion, we vacate the circuit court’s order granting summary judgment in favor of Dr. Mee-Lee and against Iddings, and this cause is remanded for further proceedings consistent with tMs oprnion.
. The term "wilful” has two accepted spellings, "wilful” and "willful.” See The American Heritage Dictionary 922 (3d ed.1994). Both spellings are used in the text of this opinion interchangeably, and the use of one spelling in one location in the text and the use of the other spelling in another location in the text is not meant to denote different meanings.
. HRS § 386-8 provides in pertinent part that "[a]nother employee of the same employer shall not be relieved of his [or her] liability as a third parly, if the personal injury is caused by his [or her] wilful and wanton misconduct.”
. HRS § 386-5 provided in pertinent part:
Exclusiveness of right to compensation. The rights and remedies herein granted to an employee or the employee’s dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee, the employee’s legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer, at common law or otherwise, on account of the injury.
. For purposes of completeness, we note that the legislative history for the "wilful and wanton misconduct" exception to co-employee immunity in HRS § 386-8 is of little assistance in determining the scope of the terms involved. The legislative history provides that:
The purpose of this bill is to prevent an action for damages by one employee against a fellow employee who may have injured him [or her] in the course of the employment. However, if the injury was caused by wilful or wanton misconduct, the employee's right to sue his [or her] fellow employee is preserved. In any case the injured employee would have his rights to compensation and medical care under the workers'] compensation law.
Hse. Stand. Comm. Rep. No. 631, in 1953 House Journal, at 726.
The purpose of this bill is to exempt from liability under Act 194, Series A-86, 1951 Session Laws (Third Parly Liability Statute under Work[ers'] Compensation Law) employees who may injure a fellow employee while in the course of the employment and with no wilful or wanton misconduct involved. The injured employee, of course, would still have his [or*7 her] rights under the work[ers’] compensation law.
Sen. Stand. Comm. Rep. No. 306, in 1953 Senate Journal, at 480.
. We emphasize, however, that the holdings and rationale expressed in this case are strictly limited to the context of the “wilful and wanton misconduct” exception to co-employee immunity in HRS § 386-8. We express no opinion regarding, nor do we acknowledge the existence of, any analogous exceptions to employer immunity.
. It is important to note, however, that although tortious conduct meriting the imposition of punitive damages and tortious conduct falling within the exception to co-employee immunity in HRS § 386-8 are measured by similar terms, the standards are not identical. Accordingly, a determination that conduct constitutes “wilful and wanton misconduct” does not necessarily imply that the conduct also merits the imposition of punitive damages.
. See supra section III.B.2.