Michael Michelbrink, Jr. v. Washington State Patrol

Filed
Washington State
Court of Appeals
Division Two
November 24, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MICHAEL S. MICHELBRINK, JR., a No. 44035-1-II
single man,
Respondent,
v.
STATE OF WASHINGTON, WASHINGTON
STATE PATROL,
PUBLISHED OPINION
Petitioner.
WORSWICK, J. — The Washington State Patrol (WSP) filed an interlocutory appeal
challenging the superior court’s denial of summary judgment against former WSP trooper
Michael Michelbrink’s lawsuit for damages resulting from being shot with a Taser1 at the
workplace as part of WSP’s Taser training. Michelbrink argued that being shot with a Taser fell
within the deliberate intention exception2 to the Washington State Industrial Insurance Act’s3
(IIA) general prohibition of civil suits for workplace injuries.4
In a previous opinion, we affirmed the superior court. Michelbrink v. Washington State
Patrol, 180 Wash. App. 656, 665-68, 323 P.3d 620 (Michelbrink I), remanded, 339 P.3d 635
1
Tasers are electronic weapons that temporarily incapacitate targets with “propelled wires or
direct contact to conduct energy which affects the sensory and motor functions of the nervous
system.” Clerk’s Papers (CP) at 48.
2
RCW 51.24.020.
3
Title 51 RCW.
4
RCW 51.04.010.
No. 44035-1-II
(2014). We liberally interpreted the deliberate intention exception and held that issues of
material fact existed as to whether WSP had actual knowledge that an injury was certain to occur
from being shot with a Taser and as to whether WSP willfully disregarded that knowledge.
Michelbrink I, 180 Wash. App. at 672-73. WSP filed a petition for review in the Supreme Court.
Our Supreme Court granted review and remanded Michelbrink I for this court to reconsider our
decision in light of Walston v. Boeing Co., 181 Wash. 2d 391, 334 P.3d 519 (2014).
Because Walston makes clear that the deliberate intention exception is to be narrowly
interpreted, we reverse our prior holding that the deliberate intention exception should be
liberally interpreted. But because there is still an issue of material fact as to whether WSP had
actual knowledge that an injury was certain to occur from Taser exposure and as to whether WSP
willfully disregarded that knowledge, we again affirm the superior court’s denial of summary
judgment.
FACTS
A. Background
Michelbrink was employed as a trooper with WSP. WSP required troopers who elected
to carry a Taser to take a Taser training course. In this training course, an instructor shot the
troopers with a Taser and administered a shock for one to five seconds. Taser training included
shooting the target’s back with two electrified metal probes that attached to the skin and used
electricity to temporarily incapacitate the target by causing involuntary muscle contractions.
WSP’s Taser training manual stated that being shot by a Taser could cause “cuts, bruises and
abrasions caused by falling, strain related injuries from strong muscle contractions such as
muscle or tendon tears, or stress fractures.” Clerk’s Papers (CP) at 136. WSP’s lead firearms
2
No. 44035-1-II
instructor, who created WSP’s Taser training program and trained the trainees, stated that “the
most typical effects of [a Taser] exposure included temporary pain, minor skin irritation,
temporary blisters, and redness or minor bleeding if the Taser probes punctured the skin.” CP at
54. Taser International, Inc., the company that manufactures Tasers, also provided warnings,
including a statement that “[i]n most areas of the body, wounds caused by TASER probes will be
minor. TASER probes have small barbs.” CP at 135.
Michelbrink participated in the WSP Taser training, during which he was shot by a Taser.
As WSP expected, the Taser immediately caused Michelbrink pain, temporary breathing trouble,
and incapacitation. Over the next several months, Michelbrink underwent treatment for what
were initially thought to be pulled muscles. When there was little improvement, an MRI
(magnetic resonance imaging) was performed which revealed that the electric shock from the
Taser had caused a compression fracture in Michelbrink’s back. Michelbrink was ultimately
diagnosed with a fracture in his vertebrae and a “bulged disc.” CP at 32.
B. Procedural History
Michelbrink filed a lawsuit against WSP for injuries caused by the Taser, alleging that
being shot by the Taser fell within the deliberate intention exception to the IIA’s general
prohibition on civil suits for workplace injuries. RCW 51.04.010. WSP moved for summary
judgment, arguing that because Michelbrink’s claim did not fall within the deliberate intention
exception, the IIA’s general prohibition on civil suits for workplace injuries precluded his claim.
The superior court denied WSP’s summary judgment motion. WSP moved this court for
discretionary interlocutory review, which we granted. Michelbrink I, 180 Wash. App. at 661. We
then affirmed the superior court’s denial of summary judgment and held that the deliberate
3
No. 44035-1-II
intention exception is to be liberally interpreted, and that Michelbrink had raised issues of
material fact as to whether WSP had actual knowledge that an injury was certain to occur from
being shot by a Taser and as to whether WSP willfully disregarded that knowledge. 180 Wn.
App. at 665-73.
WSP petitioned our Supreme Court for review. After WSP filed its petition, our Supreme
Court decided Walston, granted WSP’s petition for review, and remanded Michelbrink to us for
reconsideration in light of Walston. The parties filed supplemental briefing.5
ANALYSIS
I. STANDARD OF REVIEW
We review summary judgment de novo. Camicia v. Wright Constr. Co., 179 Wash. 2d 684,
693, 317 P.3d 987 (2014). Summary judgment is appropriate only where there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
When reviewing a summary judgment order, we review the evidence in the light most favorable
to the nonmoving party and make all reasonable inferences in that party’s favor. Lakey v. Puget
Sound Energy, Inc., 176 Wash. 2d 909, 922, 296 P.3d 860 (2013).
We also review questions of statutory interpretation de novo. Dot Foods, Inc. v. Dep’t of
Revenue, 166 Wash. 2d 912, 919, 215 P.3d 185 (2009). Our fundamental objective in statutory
interpretation is to give effect to the legislature’s intent. Dep’t of Ecology v. Campbell & Gwinn,
L.L.C., 146 Wash. 2d 1, 9-10, 43 P.3d 4 (2002). If a statute’s meaning is plain on its face, we give
effect to that plain meaning as an expression of legislative intent. 146 Wash. 2d at 9-10. We
5
Additionally, the Washington State Association of Sheriffs and Police Chiefs filed an amicus
brief supporting WSP’s position.
4
No. 44035-1-II
determine the plain meaning of a statutory provision from the ordinary meaning of its language,
as well as the general context of the statute, related provisions, and the statutory scheme as a
whole. Christensen v. Ellsworth, 162 Wash. 2d 365, 373, 173 P.3d 228 (2007).
II. BACKGROUND OF THE IIA
“The IIA created the workers’ compensation system, . . . a ‘grand compromise’ that gave
employers ‘immunity from civil suit by workers’ in return for giving injured workers ‘a swift,
no-fault compensation system for injuries on the job.’” Walston, 181 Wash. 2d at 396 (quoting
Birklid v. Boeing Co., 127 Wash. 2d 853, 859, 904 P.2d 278 (1995)). Because the legislature
intended the new workers’ compensation system to fully compensate employees, the IIA
instructs that its provisions “shall be liberally construed for the purpose of reducing to a
minimum the suffering and economic loss arising from injuries and/or death occurring in the
course of employment.” RCW 51.12.010. But because the legislature intended to immunize
employers from civil suits for workplace injuries, the IIA established a general prohibition on all
civil suits for damages arising out of workplace injuries, with only a few narrow exceptions.
RCW 51.04.010.
One such exception is RCW 51.24.020’s deliberate intention exception, which states:
If injury results to a worker from the deliberate intention of his or her employer to
produce such injury, the worker or beneficiary of the worker shall have the privilege
to take under this title and also have cause of action against the employer as if this
title had not been enacted, for any damages in excess of compensation and benefits
paid or payable under this title.
Thus, employers who deliberately injure their employees are divested of immunity from lawsuits
by RCW 51.24.020. Birklid, 127 Wash. 2d at 859. The policies supporting RCW 51.24.020
include allowing employees to fully recover for injuries and disallowing employers who
5
No. 44035-1-II
intentionally injure their employees from burdening the industrial insurance risk pool. 127
Wash. 2d at 859; RCW 51.16.035. The IIA defines “injury” as “a sudden and tangible happening,
of a traumatic nature, producing an immediate or prompt result, and occurring from without, and
such physical conditions as result therefrom.” RCW 51.08.100.
Originally, the deliberate intention exception was applied primarily in situations where
employees were physically assaulted in the workplace. Walston, 181 Wash. 2d at 396. But in
1995, our Supreme Court decided Birklid, which established a new test to determine whether a
claim fell within the deliberate intention exception. 127 Wash. 2d at 865. In Birklid, our Supreme
Court reiterated that the deliberate intention exception should be interpreted narrowly. 127
Wash. 2d at 860. The court held that in order for an employer’s actions to fall under the deliberate
intention exception, the employee must prove (1) “the employer had actual knowledge that an
injury was certain to occur” and (2) the employer “willfully disregarded that knowledge.” 127
Wash. 2d at 865.
III. WALSTON
In Walston, an employee was required to frequently work with asbestos at the workplace,
which caused the employee to develop the lung disease mesothelioma. 181 Wash. 2d at 394. The
employee filed a civil suit against his employer, arguing that exposure to asbestos fell within the
deliberate intention exception because the employer had actual knowledge that an injury was
certain to occur from asbestos exposure and willfully disregarded that knowledge by continuing
to expose the employee to asbestos. See 181 Wash. 2d at 395-96. Walston argued that an injury
was certain to occur from asbestos exposure in two ways: (1) by causing microscopic lung
6
No. 44035-1-II
damage at the cellular level and (2) by causing lung diseases like mesothelioma. See 181 Wash. 2d
at 398.
On appeal, our Supreme Court held that summary judgment in the employer’s favor was
proper because the employee’s claim did not fall within the deliberate intention exception as a
matter of law. See 181 Wash. 2d at 398. First, the court reaffirmed Birklid’s test:
In Birklid . . . [w]e held that “deliberate intention” includes when “the
employer had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge.”
Before adopting that narrow test, we reviewed broader tests from other
jurisdictions and rejected them. In particular, we considered a test that defined
deliberate intention to include situations in which the injury is “‘substantially
certain to occur.’” We rejected that test and instead adopted a narrower test for
Washington. Thus, “deliberate intention” is a high standard that is met in
Washington only when an employer had actual knowledge that an injury was
certain to occur. An act that has substantial certainty of producing injury is
insufficient to meet that standard. Similarly, negligence—even gross negligence—
is not sufficient to meet the “deliberate intention” standard.
181 Wash. 2d at 396-97 (citations omitted) (quoting Birklid, 127 Wash. 2d at 860, 864-65).
The court then held that lung disease is an injury but that asbestos exposure caused only a
risk of lung disease, not a certainty of lung disease. 181 Wash. 2d at 397. The court held that
microscopic lung damage at the cellular level is not an “injury” at all because microscopic lung
damage is asymptomatic unless and until it causes a lung disease. 181 Wash. 2d at 398. Thus, the
court ruled that while asbestos exposure created a risk of injury, an injury was not certain to
occur from asbestos exposure. 181 Wash. 2d at 398.
IV. APPLICATION TO MICHELBRINK’S CASE
WSP argues that we should reverse Michelbrink and hold that (1) the deliberate intention
exception must be narrowly interpreted, (2) Michelbrink failed to raise an issue of material fact
7
No. 44035-1-II
as to whether WSP had actual knowledge that an injury was certain to occur from being shot by a
Taser,6 and (3) Michelbrink failed to raise an issue of material fact as to whether WSP willfully
disregarded that knowledge. We agree that we should interpret the deliberate intention exception
narrowly. But we hold that Michelbrink still successfully raised an issue of material fact as to
whether WSP had actual knowledge that an injury was certain to occur from shooting
Michelbrink with a Taser and as to whether WSP willfully disregarded that knowledge.
A. Narrow Interpretation of the Deliberate Intention Exception
WSP argues that we should narrowly interpret the deliberate intention exception. We
agree.
Our Supreme Court has held that the deliberate intention exception must be interpreted
narrowly. See, e.g., Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash. 2d 16, 27, 109
P.3d 805 (2005); Birklid, 127 Wash. 2d at 859-60.
In Michelbrink I, we held that because the IIA is to be liberally interpreted, parts of the
deliberate intention exception within the IIA should also be liberally interpreted. 180 Wash. App.
at 663, 670-71. We acknowledged our Supreme Court’s holdings that the deliberate intention
exception is to be interpreted narrowly, but held that this applied only to whether the employer
acted with deliberate intent, not to the exception’s other elements (such as what constitutes an
“injury” or whether an injury was certain to occur):
Following the legislature’s directive to construe the Act “liberally” does not conflict
with our courts’ “consistently [narrow]” interpretation of RCW 51.24.020’s
“limited exception when an employer intentionally injures an employee” . . . . The
6
WSP refers to Michelbrink’s being shot by a Taser as “Taser exposure,” and then draws an
analogy to cases describing “exposure” to toxic substances and other risks of injury. Suppl. Br.
of Appellant at 6, 7. Because we see a substantive difference, we do not adopt this term.
8
No. 44035-1-II
Vallandigham court explained the historic “narrow” interpretation of only a single
key term in that statutory exception—“deliberate intention”.
180 Wash. App. at 670 n.23 (alteration in original).
But in Walston, our Supreme Court went beyond narrowly interpreting whether the
employer acted with deliberate intent: it also narrowly interpreted what constitutes an “injury”
(by rejecting the argument that microscopic and asymptomatic lung damage can constitute an
“injury”) and whether an injury is certain to occur (by rejecting that the injury of lung disease is
certain to occur from continual asbestos exposure). 181 Wash. 2d at 397-98. Thus, our Supreme
Court clearly established that every element of the deliberate intention exception should be
interpreted narrowly. Therefore, we reverse Michelbrink I on this point and hold that consistent
with Walston, every element of the deliberate intention exception must be interpreted narrowly.
B. Issue of Material Fact as to WSP’s Actual Knowledge that Injury was Certain To Occur
WSP argues that Michelbrink failed to raise an issue of material fact as to whether WSP
had actual knowledge an injury was certain to occur from Taser exposure. We disagree.
1. Issue of Material Fact as to Whether WSP Knew any Injury was Certain To Occur
As an initial matter, we note that Michelbrink’s argument largely rests on the allegedly
known and expected injury that arises from being stabbed and shocked by the Taser, as well as
his more serious injuries of a broken vertebrae and bulged disk. WSP focuses on only
Michelbrink’s more serious injuries. WSP argues that “not every physical reaction to a work
activity constitutes a compensable ‘injury’ under the IIA” and that specifically the temporary
pain, skin irritation, redness, and other similar reactions to being shot with a Taser do not qualify
as industrial injuries under the IIA. Br. of Appellant at 8. But neither our Supreme Court, nor
our legislature has carved out an exception for a de minimus injury. We decline to do so here.
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No. 44035-1-II
For this reason and the reasons cited below, we consider the allegedly known and expected
injuries of being stabbed and shocked by barbed probes an “injury” for purposes of reviewing
this summary judgment decision.
In Walston, our Supreme Court held that microscopic lung damage alone does not
constitute an injury under the IIA because unless and until microscopic lung damage causes
disease, it is asymptomatic. 181 Wash. 2d at 398. Thus, a harm must be symptomatic in order to
constitute an “injury.” See 181 Wash. 2d at 398. Neither RCW 51.08.100’s definition of injury,
Walston, nor any other authority citied by the parties supports that symptomatic injuries must
reach a particular level of severity before constituting an “injury” under the IIA.
Here, it is undisputed that WSP required trainees like Michelbrink, who chose to carry
Tasers, to be shot by the Taser. The record supports that Taser training included shooting the
trainee’s back with a Taser’s two electrified metal probes, which attach to the skin with barbs
and use electricity to temporarily incapacitate the trainee by causing involuntary muscle
contractions. TASER International, Inc.’s warnings state that the Taser’s electrical probes cause
“wounds” which are typically “minor.” CP at 135. WSP’s lead firearms instructor, who created
the Taser training program and trained the trainees, stated that “the most typical effects of [a
Taser] exposure included temporary pain, minor skin irritation, temporary blisters, and redness
or minor bleeding if the Taser probes punctured the skin.” CP at 54. As explained in
Michelbrink I, the record does not clarify the level of certainty that “most typical” was meant to
convey. 180 Wash. App. at 666. Thus, interpreting the above evidence in the light most favorable
to Michelbrink, an issue of material fact exists as to whether “temporary pain, minor skin
10
No. 44035-1-II
irritation, temporary blisters, and redness or minor bleeding if the Taser probes punctured the
skin” was certain to occur from Taser exposure. CP at 54.
While these are relatively minor effects, they are not asymptomatic effects. Furthermore,
each of these injuries constitutes “a sudden and tangible happening, of a traumatic nature,
producing an immediate or prompt result, and occurring from without, and such physical
conditions as result therefrom.” RCW 51.08.100.
Injuries are an expected consequence of shooting Michelbrink with a Taser under
Walston as well as the IIA. Therefore, an issue of material fact exists as to whether WSP had
actual knowledge that an injury was certain to occur.7
2. WSP Need Not Have Actual Knowledge About the Specific Injuries Suffered By
Michelbrink
WSP argues that RCW 51.24.020’s requirement that the employee’s injury must result
from the employer’s deliberate intention to produce “such injury” means that it can be held liable
only if it had actual knowledge that Michelbrink’s specific injuries were certain to occur from
Taser exposure. Br. of Appellant at 35-36. We disagree. Because our case law does not restrict
a plaintiff’s recovery in this manner and because this argument defeats the purpose of the
intentional injury exemption, we hold that where an employer’s willful disregard of actual
knowledge that any injury was certain to occur caused the employee’s specific injuries, the
7
WSP argues that its actual knowledge that an injury was certain to occur cannot be established
because only one percent of trainees exposed to the Taser reported an injury. While this fact
may benefit WSP at trial, a lack of injury reports does not preclude that WSP derived (from
other sources) actual knowledge that an injury was certain to occur from Taser exposure. As
discussed above, evidence in the record independent of any injury reports raise an issue of
material fact as to whether WSP knew that an injury was certain to occur from Taser exposure.
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No. 44035-1-II
deliberate intention exception applies regardless of whether the employer had actual knowledge
that the employee’s specific injuries themselves were certain to occur.
To support its argument that an injured plaintiff’s recovery is limited to only injuries a
tortfeasor intended to cause, WSP cites Folsom v. Burger King, 135 Wash. 2d 658, 958 P.2d 301
(1998), but WSP misinterprets the Court’s holding in that case. In Folsom, a restaurant employer
hired a convicted violent felon, who murdered two fellow restaurant employees while robbing
the restaurant. 135 Wash. 2d at 661. The murdered employees’ estates sued the employer, arguing
that their claims fell under the deliberate intention exception because the employer had hired the
murderer with knowledge of his violent criminal record, negligently left too much money in the
restaurant’s money register, and discontinued security monitoring of the restaurant. 135 Wash. 2d
at 665-66. Our Supreme Court held that the deliberate intention exception did not apply as a
matter of law because the record did not support that an injury was certain to occur from the
employer’s negligent acts. See 135 Wash. 2d at 667. WSP argues that Folsom held that murdered
employees had to show that a murder was certain to occur before their claims could fall under
the deliberate intent exception. We interpret Folsom to hold that the murdered employees had to
show evidence that an injury was certain to occur, not that a murder was certain to occur. See
135 Wash. 2d at 667.
Moreover, it is well settled law that a tortfeasor takes his victim as he finds him.
Buchalski v. Universal Marine Corp., 393 F. Supp. 246 (W.D. Wash. 1975). Defendants are
liable for “any physical injury they cause, no matter how unforeseeable, once they inflict harm
on a plaintiff’s body.” Gibson v. County of Washoe, 290 F.3d 1175, 1192 (9th Cir. 2002). RCW
51.24.020’s term “such injury” was intended to require only that the employer’s willful disregard
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No. 44035-1-II
of actual knowledge that an injury was certain to occur caused the employee’s specific injuries,
not that the employer had actual knowledge the employee’s specific injuries were themselves
certain to occur. Limiting employees’ remedies for deliberate injury by employers to only the
specific type of injury intended would not serve the intended purpose of the deliberate intention
exception.
Finally, the policy behind RCW 51.24.020 assures that employers who deliberately injure
their employees should not enjoy immunity from suits. Employees’ remedies should not be
limited by the IIA when their employers intentionally assault them. Birklid, 127 Wash. 2d at 859.
And employers who engage in such conduct should not burden the industrial insurance risk pool.
Birklid, 127 Wn2d at 859. Neither law nor policy supports the WSP’s argument.
Taken to its extreme, WSP’s argument would undermine RCW 51.24.020. If an
employer physically assaulted an employee by slapping the employee across the face, it
disregarded actual knowledge that injury was certain to occur because slaps are certain to cause
redness of the cheek and minor pain. If the slap instead broke the employee’s neck, WSP’s
argument would lead to the conclusion that the employer would bear no responsibility for that
broken neck.
Here, WSP physically assaulted Michelbrink by shooting him with a Taser. Issues of
material fact exist as to whether WSP disregarded actual knowledge an injury was certain to
occur and whether Tasers are certain to cause muscle seizures, minor wounds, pain, skin
irritation, blisters, redness, or bleeding. If WSP disregarded actual knowledge that these injuries
were certain to occur and if the Taser exposure instead caused Michelbrink a vertebrae fracture
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No. 44035-1-II
and bulged disc, WSP may be responsible to compensate Michelbrink for the vertebrae fracture
and bulged disk.
We hold that because an issue of material fact exists as to whether WSP’s willful
disregard of actual knowledge that an injury was certain to occur caused Michelbrink’s specific
injuries, an issue of material fact exists as to whether the deliberate intention exception applies,
regardless of whether WSP had actual knowledge that Michelbrink’s specific injuries were
certain to occur.
C. No Intent To Injure
WSP further argues that because it had no subjective intent to injure, RCW 51.24.020
does not apply. We disagree.
WSP cites the New Jersey case of Bustamante v. Tuliano, 248 N.J. Super. Ct. App. Div.
492, 591 A.2d 694 (1991), and the Montana case of Harris v. Dep’t of Corrections, 368 Mont.
276, 294 P.3d 382 (2013), to support its argument that because WSP did not intend to injure
Michelbrink, it cannot be liable for Michelbrink’s injuries. Both Bustamante and Harris are
distinguishable from this case.
In Bustamante, a police officer who lost vision in one eye after being shot with a wax
bullet during a training exercise where officers simulated clearing a building of two “bad guys”
sued the officer who had shot him.8 591 A.2d at 696. The appellate division of the New Jersey
superior court held that Bustamante failed to establish that his co-officer had committed an
intentional wrong. 591 A.2d at 699. The court focused on the context of Bustamante’s injury in
8
In citing Bustamante, WSP alleges Bustamante claimed that his employer deliberately injured
him. While the original complaint named several officers whom Bustamante claimed were
directing the training exercises, those parties were dismissed during trial. 591 A.2d at 695 fn 1.
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No. 44035-1-II
concluding that Tuliano’s intent in firing the wax bullet at Bustamante was not to injure, but
rather so that Bustamante would know he had been hit and was eliminated from the training
exercise. 591 A.2d at 699.
The ‘sting’ of the wax bullet was analogous to the use of a paint bullet. Its purpose
was not to injure but to serve as evidence that the ‘victim’ could no longer
participate. Elimination of the victim was the point of the exercise. The suggestion
that Tuliano intended or expected some injury to Bustamante is simply not
supported by this record.
591 A.2d at 699. Bustamante is distinguishable from this case because there, the firing officer
had no intent to injure Bustamante by shooting him with the wax bullet. Here, WSP’s intent in
firing the Taser at Michelbrink was to make him experience the injury of being shot with a Taser.
In Harris, a Montana Department of Corrections employee brought an intentional tort
action against the state under Montana’s Industrial Insurance Act,9 after he was intentionally
shot with a Taser during mandatory training. Harris, 294 P.3d at 385. Like Washington’s IIA,
the Montana act has an “intentional injury” provision with “deliberate intent” and “knowledge of
actual harm” requirements, which allows a tort action against an employer. Compare MCA §
39-71-413, with RCW 51.24.020. However, the Montana Supreme Court differed from
Washington’s Birklid test when it held that Harris had “failed to provide any evidence from
which [it] can infer that the [Department of Correction’s] intent was to harm rather than educate
and train.” Harris, 294 P.3d at 387-88. As we mention in Michelbrink I, because the Montana
Supreme Court inserted a judicially crafted requirement into the statutory scheme, we do not find
Harris persuasive. Michelbrink I, 180 Wash. App. at 667 n.15. In addition, our courts have not
required the employer to have the exclusive purpose of injuring the employees. See, e.g.,
9
MONT. CODE ANN. (MCA) § 39-71-413.
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No. 44035-1-II
Birklid, 127 Wash. 2d at 863. Any decision to insert such a requirement is best left to the
legislature. Thus, although Harris provides a different resolution of similar facts under a
somewhat analogous statute, our legislature’s express focus on minimizing the injured worker’s
suffering and economic loss, in addition to Birklid’s test to determine whether a claim falls
within RCW 51.24.020’s deliberate intention exception compel us to reject the Harris rationale
here.
The Birklid court held that the phrase “deliberate intention” in RCW 51.24.020 means the
employer had actual knowledge that an injury was certain to occur and willfully disregarded that
knowledge. 127 Wash. 2d at 865. There, the court noted that in all the other Washington cases,
while the employer may have been aware that it was exposing workers to unsafe conditions, its
workers were not being injured until the accident leading to litigation occurred. 127 Wash. 2d at
863. The court distinguished Birklid’s injury from the prior cases by pointing out that there was
no accident that caused his injury. 127 Wash. 2d at 863. Rather, the actions of Boeing went
beyond gross negligence and involved the willful disregard of actual knowledge of continuing
injuries to employees. 127 Wash. 2d at 863. Similarly, in our case, WSP was not just negligently
exposing its troopers to unsafe working conditions or conducting a risky training exercise.
Rather, by intentionally shooting Michelbrink with a Taser, WSP deliberately acted in a way that
was arguably certain to cause injury. Because there is a question of material fact as to whether
WSP had actual knowledge that being shot with the Taser was certain to cause injury, there is a
question of material fact as to whether WSP acted with deliberate intention in injuring
Michelbrink.
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D. Necessary for Training Purposes
WSP and Amicus argue that holding WSP responsible for Michelbrink’s injuries would
undermine trooper training.
WSP troopers, as front-line, first responders, regularly confront dangerous,
frequently life threatening events. They must ‘actively train in real-world
environments to prepare for these dangers, and to ensure that they can safely
perform their duties.’ This training prepares troopers for the demanding physical
tasks and difficult judgment decisions their job requires, such as whether and how
much force to use.
Suppl. Br. of Appellant at 6. We fully appreciate the compelling policy arguments for this
exclusion made by WSP and Amicus. But nothing in the IIA supports an exclusion for law
enforcement agency training. See Birklid, 127 Wash. 2d at 862
Moreover, Birklid specifically rejected this risk-benefit analysis. 127 Wash. 2d at 862.
Boeing proposed that our Supreme Court adopt the following language:
Evidence that an employer has deliberately engaged in conduct that results in
occupational injuries or disease within its workforce is not evidence of a specific
intent to injure members of that workforce for purposes of RCW 51.24.020 so long
as that conduct was reasonably calculated to advance an essential business
purpose.
Conversely, when an employer deliberately engages in conduct that is not
reasonably calculated to advance an essential business purpose, such conduct may
constitute evidence of specific intent to injure for purposes of RCW 51.24.020 if
the surrounding facts and circumstances indicate that the employer’s specific
purpose was to bring about an employee’s injury.
Birklid, 127 Wash. 2d at 862. The court declined to adopt Boeing’s formulation for RCW
51.24.020. 127 Wash. 2d at 862.
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The legislature has specifically excluded law enforcement from statutory requirements
and prohibitions before.10 Had the legislature intended a similar exclusion here, it could have
said so directly. Whether to add an exclusion for law enforcement training to the deliberate
intention exception is a decision for the legislature, not for our court.
E. Willful Disregard of Actual Knowledge
WSP argues that Michelbrink cannot show that it willfully disregarded actual knowledge
that an injury was certain to occur from being shot by a Taser because WSP took affirmative
steps to protect the trainees from secondary injuries, such as having spotters to protect employees
shot by the Taser from falling and checking to see if the employees were medically fit prior to
Taser training. We disagree.
If WSP had actual knowledge that an injury was certain to occur from being shot by a
Taser and compelled its employees to be shot anyway, WSP willfully disregarded actual
knowledge that the Taser would cause certain injury. It is undisputed that WSP required
employees who used a Taser to be shot with a Taser, and an issue of material fact exists as to
whether WSP had actual knowledge that muscle seizures, minor wounds, pain, skin irritation,
blisters, redness, or bleeding were certain to occur from Taser exposure. WSP’s actions to
prevent injury did not address these injuries. Rather, WSP’s actions addressed secondary
injuries such as falling or medical complications. Thus, an issue of material fact exists as to
whether WSP willfully disregarded knowledge that an injury was certain to occur from Taser
exposure.
10
For example, RCW 49.44.120 prohibits potential employers from requiring employees or
prospective employees to be subject to any lie detector tests as a condition of employment. The
statute specifically excludes law enforcement agencies from this prohibition.
18
No. 44035-1-II
V. ATTORNEY FEES
Michelbrink requests attorney fees on appeal. Because Michelbrink does not support his
attorney fee request with argument or citation to authority, we do not consider it. Wachovia SBA
Lending, Inc. v. Kraft, 165 Wash. 2d 481, 493, 200 P.3d 683 (2009).
VI. CONCLUSION
In conclusion, we reverse our prior holding that the deliberate intention exception should
be liberally interpreted, and we now narrowly apply the exception to this case. But because there
is still an issue of material fact as to whether WSP had actual knowledge that an injury was
certain to occur from Taser exposure and as to whether WSP willfully disregarded that
knowledge, we again affirm the superior court’s denial of summary judgment.
Worswick, J.
We concur:
Johanson, C.J.
Melnick, J.
19