                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2004

Eddy v. VI Water Power Auth
Precedential or Non-Precedential: Precedential

Docket No. 02-4057




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"Eddy v. VI Water Power Auth" (2004). 2004 Decisions. Paper 654.
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                        PRECEDENTIAL
                                           Samuel H. Hall, Jr. (Argued)
                                           Marie E. Thomas
                                           Birch de Jongh Hindels & Hall
  IN THE UNITED STATES COURT               Poinsettia House at Bluebeard’s Castle
           OF APPEALS                      1330 Estate Taarnebjerg
      FOR THE THIRD CIRCUIT                Charlotte Amalie
                                           St. Thomas, USVI 00802

             NO. 02-4057                   Cathy M. Smith
                                           Virgin Islands Water & Power Authority
                                           P.O. Box 1450
          GABRIELLE EDDY                   Charlotte Amalie
                                           St. Thomas, USVI 00804
                   v.
                                            Attorneys for Appellant
  VIRGIN ISLANDS WATER AND
      POWER AUTHORITY;                     James M. Derr (Argued)
        JAM ES BROWN;                      P.O. Box 664
    JOHN DOE I; JOHN DOE II;               Charlotte Amalie
   JOHN DOE III; JOHN DOE IV               St. Thomas, USVI 00804

         Virgin Islands Water               Attorney for Appellee
         and Power Authority,
               Appellant

                                                  OPINION OF THE COURT
On Appeal From the District Court of the
              Virgin Islands
  (D.C. Civil Action No. 96-cv-00048)
 District Judge: Hon. Thomas K. Moore
                                           STAPLETON, Circuit Judge:

       Argued December 9, 2003                 The Virgin Islands Water and Power
                                           Authority (“WAPA”) appeals from a
 BEFORE: NYGAARD, BECKER and               judgment entered on a verdict finding it
    STAPLETON, Circuit Judges              liable to Gabrielle Eddy (“Eddy”) for
                                           intentional infliction of emotional distress.
    (Opinion Filed: May 21, 2004)          WAPA further appeals the denial of their
                                           renewed motion for judgment as a matter
                                           of law. Because the evidence viewed in
                                           the light most favorable to Eddy will not
support recovery on an intentional                  the yard. Eddy informed his foreman,
infliction of emotional distress claim that         James Brown, that he had not been trained
is not barred by the exclusive remedy               for work in the High Yard. Brown
provision of the Virgin Islands Workers’            responded, “Well, Mr. Eddy, we want you
Compensation Act, we will reverse the               to do it, or [face] disciplinary action.” JA
judgment of the District Court of the               at 1376. Brown then informed Eddy that
Virgin Islands and will direct that                 work on the switch had to be performed
judgment be entered in favor of WAPA.               hot for economic reasons. 2

 I. Factual and Procedural Background                  The crew did not have enough
                                                    insulating material to cover up all exposed
            A. Factual Background 1                 areas of the switch, and, accordingly,
                                                    while Eddy covered most of the switch
    Gabrielle Eddy was employed by                  with insulating materials, the back area
WAPA as a first class lineman trained to            remained uninsulated. In addition, Eddy
do “hot line” work, where power lines               was not provided with an insulated
remain energized while work is being                wrench, which was necessary to safely
done. On June 2, 1994, Eddy’s crew was              perform maintenance on the switch.
directed by its foreman to report to the
High Yard, an area of WAPA’s St.                        Nonetheless, Brown directed Eddy to
Thomas power plant with large electrical            repair the partially uninsulated switch with
switches that are bigger and closer                 the uninsulated wrench. Eddy protested,
together than switches found out in the             responding to Brown: “You’ve got to be
field where Eddy usually worked. The                crazy. You’ve got to be kidding me. In
crew was to perform what an internal                there so close, I mean, you got to be
WAPA memo would later describe as                   kidding me,” JA at 1380, and further
“planned corrective and preventative                objected to using the uninsulated wrench.
maintenance” on a high voltage switch in
                                                       Eddy had been previously sent home
                                                    twice for refusing to perform unsafe work.
        1
          As our standard of review in
evaluating a motion for judgment as a
                                                        2
matter of law, discussed infra, requires us               Eddy attended a meeting sometime
to “view[] the evidence in the light most           before the day of the accident at which
favorable to the non-movant and giv[e] it           WAPA announced that all work in the
the advantage of every fair and reasonable          High Yard would be performed hot. Eddy
inference,” W.V. Realty, Inc. v. N. Ins. Co.,       protested, along with another employee,
334 F.3d 306, 311 (3d Cir. 2003), we state          that employees did not have the proper
the facts herein in the light most favorable        training or equipment for hot line work in
to Eddy.                                            the High Yard.

                                                2
Several other WAPA workers testified to            problems with impotence, and his
having similar experiences.3          Eddy         personality has changed completely since
believed that if he refused to work on the         the accident. He has been, at times,
switch in the High Yard that day, he would         severely depressed, angry, and stressed
be sent home, and would be terminated or           out. Eddy’s treating psychologist, Dr.
suspended.                                         Thomas Tyne, initially diagnosed him as
                                                   suffering from general anxiety disorder,
    Eddy climbed twenty feet up a ladder           along with posttraumatic stress disorder.
as directed to repair the switch. During the       In 1995, Dr. John Massimo, Eddy’s
repair, as Eddy used the uninsulated socket        treating psychiatrist, diagnosed him as
wrench to loosen a nut, the nut moved              suffering from major depressive disorder
suddenly and the back of the wrench made           and posttraumatic stress disorder. Eddy
contact with the back of the switch,               was prescribed antid epressants, an
causing an electrical arc. Eddy was burned         antipsychotic, and sedatives.
by the hot flash from the arc and briefly
lost consciousness.                                    By 1997, nearly three years after the
                                                   accident, Dr. Tyne diagnosed Eddy as
    Eddy was in severe pain after the              suffering from a permanent moderate
accident. He suffered partial and full             psychological impairment. In 2001, Dr.
thickness burns (requiring skin grafts), and       Tyne determined that Eddy was still
was burned on his face, chest, legs, and           suffering from posttraumatic stress
groin. Eddy has since suffered flashbacks          disorder and anxiety disorder. His general
during his sleep, seeing himself being             anxiety disorder resulted in major
electrocuted again. He has suffered from           depression, and Eddy still suffered from
                                                   flashbacks, remembrances, inability to
                                                   concentrate, inability to sleep, and
       3                                           disruption in eating and daily functioning
         At least three other individuals
                                                   activities.
testified as to having similar experiences:
Joel Dowdye (“I was one of those
                                                          B. Procedural Background
individuals who was sent home numerous
times for refusing to do work when I
                                                       Eddy collected worker’s compensation
thought it was unsafe.”), JA at 1098-99,
                                                   as a result of the June 2, 1994 accident.
Kenval Thomas (WAPA’s policy was
                                                   He also filed this five-count lawsuit on
“either you do the work or you get sent
                                                   March 21, 1996. Counts IV and V were
home.”), JA at 1180 et seq., and Cleve
                                                   tried by a jury. Count IV alleged a
Stridiron (“[W]ell, if you refuse, they
                                                   violation of 42 U.S.C. § 1983 by Brown
basically say – they send you home. They
                                                   for depriving Eddy of various rights, but
suspend you. Like you either do it or you
                                                   the jury found in favor of Brown. Count V
don’t, and then you’ll be, you know,
                                                   alleged intentional infliction of emotional
punished after that.”), JA at 1223-24.

                                               3
distress against both Brown and WAPA.                  WAPA argues that the record is devoid
                                                   of evidence to support the elements of a
    After moving for judgment as a matter          claim for intentional infliction of
of law at the close of Eddy’s case, WAPA           emotional distress, the claim on which the
renewed its motion at the close of                 jury found WAPA liable. “We review the
evidence, arguing, inter alia, that                District Court’s decision denying a motion
“[p]laintiff presented no evidence that he         for judgment as a matter of law de novo,
suffered emotional distress after hearing          and apply the same standard that the
Defendant Brown’s alleged words, nor               District Court did, namely whether,
was there any emotional distress flowing           viewing the evidence in the light most
from Brown’s conduct prior to Plaintiff            favorable to the non-movant and giving it
climbing the latter.” JA at 216. The               the advantage of every fair and reasonable
motion was denied. The jury found                  inference, there is insufficient evidence
against Brown and WAPA on Count V,                 from which a jury reasonably could find
and reached a verdict in the amount of             liability.” W.V. Realty, Inc., 334 F.3d at
$5,000.00 against Brown and                        311 (citing Lightning Lube, Inc. v. Witco
$1,000,000.00 against WAPA. The jury               Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
determined that Brown either (1) acted as          We set forth the familiar standard for
WAPA’s alter ego or (2) was directed or            determining the sufficiency of the
authorized by WAPA.                                evidence in the margin.4

    The District Court entered a judgment
reflecting the verdict. Brown paid the                4
                                                          In determining whether the
judgment against him and did not appeal.
                                                          evidence is sufficient to
WAPA filed a timely motion for judgment
                                                          sustain liability, the court
notwithstanding the verdict. WAPA’s
                                                          may not weigh the evidence,
motion for judgment notwithstanding the
                                                          determine the credibility of
verdict was thereafter denied, and WAPA
                                                          witnesses, or substitute its
filed this timely appeal.
                                                          version of the facts for the
                                                          jury’s version. Although
II. Jurisdiction and Standard of Review
                                                          judgment as a matter of law
                                                          should be granted sparingly,
    The District Court had supplemental
                                                          a scintilla of evidence is not
jurisdiction over the intentional infliction
                                                          enough to sustain a verdict
of emotional distress claim pursuant to 28
                                                          of liability. The question is
U.S.C. § 1367(a) and 48 U.S.C. § 1612(a).
                                                          not whether there is literally
We have jurisdiction to review the final
                                                          no evidence supporting the
judgment of the District Court under 28
                                                          party against whom the
U.S.C. § 1291.
                                                          motion is directed but
                                                          whether there is evidence

                                               4
              III. Discussion                            After discussing the elements of an
                                                     IIED claim and the claim preclusion
     While WAPA raises numerous                      provision of the WCA, we will address the
arguments as to why it is entitled to                sufficiency of the evidence with respect to
judgment as a matter of law, WAPA’s                  the two IIED theories discussed by the
central argument attacks the sufficiency of          parties. The first theory is that Eddy
the evidence in support of a claim for               suffered severe em otional distress
intentional infliction of emotional distress         compensable under IIED because Brown
(“IIED”), given the liability limitations            forced him to choose between performing
imposed by the Virgin Islands Workers’               an unsafe task or potentially losing his
Compensation Act (the “WCA”). Because                job–a job he could not afford to lose (the
it is dispositive of this appeal, we will only       “pre-accident emotional distress claim”).
address that argument. 5                             According to WAPA, this is the only
                                                     theory that could escape the bar of the
                                                     WCA, but there is no evidence to support
               upon which the jury                   it. The second theory, stressed by Eddy on
               could properly find a                 appeal, is that Brown coerced Eddy into
               verdict for that party.               performing unsafe maintenance work,
               Thus, although the                    thereby causing the accident, physical
               c o u rt d r a w s a ll               injury and severe emotional distress (the
               reasonable and                        “post-accident emotional distress claim”).
               logical inferences in
               t h e n o n m o v a n t ’s              A. The Tort of Intentional Infliction
               favor, w e m u s t                            of Emotional Distress
               [reverse] an order
               [denying] judgment                        “[T]he Virgin Islands has designated
               as a matter of law if,                the Restatement as its law, until a contrary
               upon review of the                    statute is approved.” Monk v. Virgin
               record, it is apparent                Islands Water & Power Authority, 53 F.3d
               that the verdict is not
               supported by legally
               sufficient evidence.
Brennan v. Norton, 350 F.3d 399, 425 n.20            WAPA or (2) WAPA authorized or
(3d Cir. 2003) (quoting Lightning Lube,              directed Brown’s conduct. Because our
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d           other holdings are dispositive of this
Cir. 1993) (citations and internal                   appeal, we will assume arguendo that
quotations omitted)).                                sufficient evidence supports the jury’s
                                                     finding that WAPA is liable for Brown’s
   5
    WAPA argues, inter alia, that there is           conduct, and we treat the actions of Brown
insufficient evidence to support the jury’s          and WAPA as one for purposes of this
finding that (1) Brown was the alter ego of          appeal.

                                                 5
1381, 1387-88 (3d Cir. 1995) (citing 1                unjustified. The same comment
V.I.C. § 4). 6    Section 46 of the                   further notes that severe distress
Restatement (Second) of Torts provides:               may encompass mental anguish,
                                                      fright, horror, grief, worry, and
      One who by extreme and                          other emotional disturbances. The
      outrageous conduct intentionally or             extent of the severity is to be
      recklessly causes severe emotional              measured by whether any
      distress to another is subject to               ‘reasonable man could be expected
      liability for such emotional distress,          to endure it.’
      and if bodily harm to the other
      results from it, for such bodily             Chuy v. Phila. Eagles Football Club, 595
      harm.                                        F.2d 1265, 1275-76 (3d Cir. 1979) (en
                                                   banc) (quoting § 46 cmt. j).
Id.
                                                      With respect to the “intentional” or
    For there to be “severe emotional              “reckless” element of § 46, according to
distress,”                                         Comment i to § 46,

         Comment j to § 46 requires that                  The rule stated in this Section
      a plaintiff prove that he suffered              applies where the actor desires to
      severe distress that is not                     inflict severe emotional distress,
      unreasonable, exaggerated, or                   and also where he knows that such
                                                      distress is certain, or substantially
                                                      certain, to result from his conduct.
      6                                               It applies also where he acts
          1 V.I.C. § 4 provides:
                                                      recklessly . . . in deliberate
                                                      disregard of a high degree of
                     The rules of the
                                                      probability that the emotional
             common law, as expressed
                                                      distress will follow.
             in the restatements of the
             law approved by the
                                                   Id.; see Chuy, 595 F.2d at 1275 (analyzing
             American Law Institute, and
                                                   comment i); see also 2 Dan B. Dobbs, The
             to the extent not so
                                                   Law of Torts § 303, at 826 (2001)
             expressed, as generally
                                                   (“Dobbs”) (for the “intentional” or
             understood and applied in
                                                   “reckless” element of § 46 to be met, the
             the United States, shall be
                                                   “defendant must intend severe emotional
             the rules of decision in the
                                                   harm (or reckless risk of it) and such harm
             courts of the Virgin Islands
                                                   must in fact result”). A defendant acts
             in cases to which they apply,
                                                   “intentionally” when he acts with the
             in the absence of local laws
                                                   purpose or desire to inflict severe
             to the contrary.

                                               6
emotional distress, or acts knowing that             to, or disease or death of, an
such distress is substantially certain to            e m p l o y ee n o t e n t i tl e d to
result from his conduct. Restatement                 compensation under this chapter,
(Second) of Torts § 8A. “Mere risk,                  the liability of the employer is, and
however, even a very high risk, is not               shall continue to be the same as if
enough to show substantial certainty.”               this chapter did not exist.
Dobbs § 24, at 48. Instead, a defendant
acts with substantial certainty where he          24 V.I.C. § 284(a).
knows with virtual certainty “that [his]
actions will bring about the result.” Id. A          The threshold inquiry in determining
defendant acts “recklessly” where he              “whether the exclusive remedies of
                                                  workmen’s compensation apply is whether
   does an act or intentionally fails to          the injuries complained of fit within the
   do an act which it is his duty to the          definition of ‘injury’ set forth in the statute
   other to do, knowing or having                 [as compensable], namely, ‘harmful
   reason to know of facts which                  change[s] in the human organism.’”
   would lead a reasonable man to                 Robinson v. Hess Oil V. I. Corp., 19 V.I.
   realize, not only that his conduct             106, 109 (D.V.I. 1982) (quoting 24 V.I.C.
   creates an unreasonable risk of                §    251(a)         (1981));7             see
   [severe emotional distress] to
   another, but also that such risk is
   substantially greater than that                     7
                                                        Despite not having been expressly
   which is necessary to make his
                                                  repealed, in 1994 the § 251 referenced in
   conduct negligent.
                                                  Robinson and entitled “Definition and
                                                  application,” providing definitions for
Restatement (Second) of Torts § 500; see
                                                  various terms used in the workers’
also Restatement (Second) of Torts § 46.
                                                  compensation chapter, no longer appeared
                                                  in the Virgin Islands Code. At that time,
  B. The Exclusive Remedy Provision
                                                  Session Law 6033 added to § 251 new
             of the WCA
                                                  definitions for several terms. See 1994
                                                  V.I. Sess. Laws 6033, at 239. However,
   The exclusive remedy provision of the
                                                  another portion of that same Act read
WCA, 24 V.I.C. § 284(a), provides, in
                                                  “Section 251 is amended to read as
pertinent part:
                                                  follows” and provided for an entirely
                                                  different § 251 that was unrelated to
   When an employer is insured under
                                                  defining terms used in the Act. Id. at 245.
   this chapter, the right herein
                                                  24 V.I.C. § 251 now codifies the new,
   established to obtain compensation
                                                  unrelated § 251, and the previous list of
   shall be the only remedy against the
                                                  definitions of terms used in the workers’
   employer; but in case of accident
                                                  compensation chapter, including the terms

                                              7
                                                   Chinnery v. Gov’t of the V. I., 865 F.2d 68,
                                                   71-72 (3d Cir. 1989) (to be compensable
                                                   under the WCA, “injuries must have arisen
that were supposed to have been added in
                                                   out of and in the course of his
1994, no longer appears in the Virgin
                                                   employment” and have “resulted in a
Islands Code.
                                                   harmful change to him”) (internal
       Since Session Law 6033 was
                                                   quotation marks and alterations omitted);
passed, two courts have assumed that the
                                                   see also 6 Arthur Larson, Larson’s
pre-1994 § 251 is still in existence. See
                                                   Workers’ Compensation Law § 104.05, at
Eddy v. Virgin Islands Water and Power
                                                   104-18 to -21 (2000) (“Larson”)
Authority, 955 F. Supp. 468, 478 (D.V.I.
                                                   (analyzing in the context of IIED whether
1997) (noting that “Section 251 of Title 24
                                                   physical injury of the kind dealt with by
of the Virgin Islands Code defines the
                                                   the relevant workers’ compensation statute
terms used in the Workers’ Compensation
                                                   is present). Where the employer’s conduct
chapter” and quoting a definition from the
                                                   has caused physical injury and the only
pre-1994 § 251); Boudreaux v. Sandstone
                                                   emotional distress is that resulting from
Group, 1997 W L 289867, *6 (V.I. Terr.
                                                   those physical injuries, the injury fits the
Ct. 1997) (referring to the definition of
                                                   statutory definition and is compensable
“employer” in the pre-1994 § 251). At
                                                   under the WCA. The employee is entitled
least one Court has held that the workers’
                                                   to workers’ compensation but cannot make
compensation statute in the Virgin Islands
                                                   an additional claim for emotional distress.
explicitly does not define “employer.” See
                                                   Chinnery, 865 F.2d at 72 (where employee
Nickeo v. Atlantic Tele-Network Co., 2003
                                                   suffered a physical injury compensable
WL 193435, *4 (V.I. Terr. Ct. 2003)
                                                   under the WCA, it “does not matter that
(“Conspicuously absent from the workers’
                                                   [he] also suffered mental or nervous
compensation statute is a definition of
                                                   injuries”); see also Larson § 104.05, at
‘employer’. . . .”).
                                                   104-18 to -21.
       The Virgin Islands legislature may
wish to amend Title 24 to ensure that the
                                                      There is, however, an implied
Code contains definitions for the workers’
                                                   exception to this literal application of §
compensation chapter. Nonetheless, we
                                                   284(a). We recognized in Chinnery that,
need not resolve today this ambiguity
                                                   regardless of the character of the injury,
between the pre-1994 § 251 and the
“amended” § 251 now codified at 24
V.I.C. § 251. Even assuming arguendo
that Virgin Islands law no longer provides         would constitute physical “injury” under
definitions for terms used in the                  any definition, thereby bringing Eddy’s
workmen’s compensation chapter (and                post-accident injuries within the scope of
therefore no longer defines “injury”), there       the WCA. Indeed, Eddy applied for and
can be no doubt that Eddy’s severe burns           was granted benefits under the WCA
resulting from the June 2, 1994 accident           because of his post-accident injuries.

                                               8
there is an exception to the exclusivity bar               An overwhelming majority of
for tort suits where the employee can show             American jurisdictions recognize
that “the conduct [of the employer can] be             that an employer may be sued at
regarded as so egregious as to exceed the              common law for inflicting “genuine
bounds of negligence and constitute the                intentional injury” upon the
sort of intentional wrongdoing necessary               employee.      To fit within this
to comprise an exception to the exclusive              narrow exception, the putative
remedy provision of WCA § 284(a).”                     plaintiff must allege that the
Chinnery, 865 F.2d at 72 (citing Johnson               employer committed the tortious
v. Mountaire Farms of Delmarva, Inc.,                  act with an actual, specific and
503 A.2 d 7 08 , 7 14 (M d. 1986)                      deliberate intention to injure him.
(Maryland’s Act will only allow a tort suit
“where [the] employer had determined to             Ferris, 23 V.I. at 188.
injure an employee or employees within
the same class and used some means to                   Based on this standard, the Ferris
accomplish this goal.”)).                           Court rejected the claim that § 284 was
                                                    inapplicable because the employer’s
    The scope of this implied exception to          failure to provide Ferris with appropriate
the bar of § 284(a) was explored in Ferris          tools, safety clothing, and adequate
v. Virgin Islands Industrial Gases, Inc., 23        instruction made an accident virtually
V.I. 183 (V.I. Terr. Ct. 1987), in a case           certain to occur:
much like the one before us. There,
Ferris’s supervisor gave him an electric                     Ferris’ proposed amended
drill and ordered him to remove a                      complaint alleges that VIGAS
defective safety plug from an acetylene                c r e a te d a d a nge r ous work
cylinder. The electric drill ignited the gas,          environment through “negligence,
seriously burning Ferris. When he sued                 recklessness and intentional
his employer, it moved for summary                     misconduct” by failing to provide
judgment on the ground that, under § 284,              him with the appropriate tools,
Ferris’s sole remedy was workmen’s                     safety clothing and adequate
compensation. Ferris argued in response                instruction. Attempts to classify
that § 284 was not intended to bar suit for            similar contentions as intentional
injuries recklessly or intentionally caused.           torts a r e a lm o s t a l w a ys
While the Court recognized an implied                  unsuccessful because the actual
exception for intentionally inflicted                  injury remains accidental in
injuries, it stressed that that exception was          character even where the corporate
limited to situations in which there is an             employer knowingly permitted a
“actual, specific and deliberate intention to          hazardous work condition to exist,
injure”:                                               willfully failed to provide a safe
                                                       place to work or intentionally

                                                9
violated a safety statute. Thus,
the compensation bar has been           Ferris, 23 V.I. at 189-90 (quoting 2A
enforced where an employer              Arthur Larson, Workmen’s Compensation
operated a saw mill despite             Law § 68.13 (1986)).
knowledge of a potentially fatal
hazard, [Williams v. Int’l Paper            Ferris pointed the Court to § 8A of the
Co., 181 Cal. Rptr. 342 (Cal.           Restatement (Second) of Torts under
Ct. App. 1982)], failed to              which intent to cause injury includes not
instruct an unskilled employee          only situations in which the actor desires
how to perform a hazardous              to cause injury, but also situations in which
task, [K i tt el l v . V t.             the actor believes that the injury is
Weatherboard, Inc., 417 A.2d            substantially certain to result. In response,
926 (Vt. 1980)], or removed             the Court acknowledged that a minority of
safety devices from machinery,          jurisdictions had expanded the exception
[Griffin v. George’s, Inc., 589         beyond “actual, specific, and deliberate
S.W.2d 24 (Ark. 1979)]. See             intent to harm,” but construed § 284
also [Rosales v. Verson, 354            c onsistent with the majority o f
N.E.2d 553, 558-60 (Ill. App.           jurisdictions interpreting analogous
Ct. 1976)]. In each case, the           workers’ compensation statutes.
result was inescapable because
what is being tested . . . is               More recently, the District Court of the
not the degree of gravity or            Virgin Islands reaffirmed the limited scope
depravity of the employer’s             of this exception to § 284 in Gass v. Virgin
conduct, but rather the                 Islands Telephone Corp., 149 F. Supp. 2d
narrow issue of intentional             205, 211 (D.V.I. 2001) (granting summary
versus accidental quality . . .         judgment for employer because “nothing
o f the precise event                   suggest[ed] that Gass’ injuries resulted
producing injury.         The           from his ‘employer’s conscious design’”),
intentional removal of a                rev’d in part on other grounds, 311 F.3d
safety device or toleration of          237 (3d Cir. 2002).
a dangerous condition may
or may not set the stage for                The Ferris Court was correct in its
an accidental injury later.             conclusion that a majority of jurisdictions
But in any normal use of the            construe their analogous statutes to permit
words, it cannot be said, if            a common law suit only when there is an
such an injury does happen,             intent to cause harm. See Larson § 103.03,
that this was deliberate                at 103-7 to -8 (it remains an “almost
infliction of harm                      unanimous rule” that “the common law
comparable to an intentional            liability of the employer cannot . . . be
left jab to the chin.                   stretched to include accidental injuries

                                   10
caused by . . . reckless . . . misconduct of        actual, specific and deliberate intention to
the employer short of a conscious and               cause injury.
deliberate intent directed to the purpose of
inflicting an injury”). It was likewise                C. The Sufficiency of the Evidence
correct in concluding that it should not
attribute to the Virgin Islands legislature            In order to uphold Eddy’s judgment,
an intention to adopt the minority rule. As         we must find that the evidence viewed in
we explained in a comparable situation              the light most favorable to him will
where the District Court of the Virgin              support a claim that both satisfies the
Islands adopted a majority rule of statutory        elements of § 46 of the Restatement
construction:                                       (Second) of Torts and avoids the bar of
                                                    WCA § 284. As we have noted, two
   As the district court observed, the              theories of recovery have been suggested.
   Daniels present no evidence that                 We will examine each in turn to determine
   the Virgin Islands legislature, in               whether either of them meets both of these
   enacting [the statute], intended to              requirements.
   adopt the minority position on this
   issue. Accordingly, we cannot say                    1. The Pre-Accident Emotional
   that the district court erred in                             Distress Claim
   following the majority rule. Cf.
   V.I. Code Ann. titl 1, § 4 (1967)                    The first theory suggests that Eddy
   (rules of common law, as generally               suffered compensable pre-accident
   understood and applied in the                    emotional distress because Brown forced
   United States, shall be the rules of             him to choose between performing an
   decision in Virgin Islands courts);              unsafe task and losing his job. We agree
   see also Dyndul v. Dyndul, 541                   with WAPA that a rational jury could not
   F.2d 132, 134 (3d Cir. 1976) (even               find for Eddy on this claim.
   for matters that are not strictly part
   of the common law, V.I. Code Ann.                    The evidence viewed in the light most
   tit. 1, § 4 is impressive evidence               favorable to Eddy does establish that
   that the Virgin Islands legislature              Brown’s directive presented Eddy with a
   intends majority rule to govern).                hard choice and that this conduct could be
                                                    regarded by a rational juror as extreme and
Benoit v. Panthaky, 780 F.2d 336, 339 (3d           outrageous and done in reckless disregard
Cir. 1985).                                         of an obvious risk. There is no evidence,
                                                    however, which could support a finding
    We thus conclude that the intentional           that being presented with that choice
tort exception to the exclusive remedy              occasioned emotional distress for Eddy “so
provision of the WCA is limited to                  severe that no reasonable man could be
situations in which the employer had an             expected to endure it.” Restatement

                                               11
(Second) of Torts § 46 cmt. j. Neither              not barred by the exclusive remedy
Eddy’s own testimony nor that of the                provision of the W CA.
others who were present reveals any
indication of such severe distress resulting            As we have explained, a literal
from the directive prior to the accident. To        application of § 284 bars recovery for
the contrary, Eddy’s own testimony                  severe emotional distress occasioned by an
suggests that he believed he could perform          injury giving rise to a right to
the work Brown requested without getting            compensation under the WCA. To escape
hurt. Eddy testified, “I didn’t know I              this bar, Eddy was required to prove that
would have get hurt. . . . If I know I was          his injury was the result of conduct
going to get hurt, I wouldn’t have be               intended to cause injury. Thus, to escape
there.” JA at 1414. Further, Eddy                   the bar of § 284, Eddy would have had to
indicated that “[i]f Mr. Brown tell me to           prove that Brown gave his directive for the
go do the job, I figure everything is safe.”        purpose of causing harm to Eddy. He did
JA at 1417. There is no evidence Eddy               not do so.
suffered any symptoms immediately
preceding the accident that one would                   Because the District Court erroneously
associate with severe emotional distress.           regarded all IIED claims as being beyond
Instead, Eddy accepted the assignment,              the scope of § 284,8 it did not ask the jury
prepared the job site for the work,                 whether Brown acted with a purpose to
removed three nuts off the top of the               injure – rather, it instructed that liability
switch while working within three feet of           could be predicated on a finding of
the energized conductors, and requested             recklessness. The jury apparently found
another wrench because the one he was               recklessness on the part of Brown, and the
using would not fit. He waited for the              record clearly supports that finding. The
second wrench to arrive, took it, and               record provides a basis for concluding that
continued his work until his hand slipped           Brown’s conduct created a very grave risk
and the accident occurred.                          of injury to Eddy and that Brown acted in
                                                    deliberate disregard of that risk. Indeed, as
    2. The Post-Accident Emotional                  Eddy stresses, his expert expressed the
            Distress Claim                          opinion that the “chance of an accident

    Assuming arguendo that the emotional
distress Eddy suffered as a result of the             8
                                                        See Eddy, 955 F. Supp. at 478 (“claims
accident and his physical injuries would
                                                    such as reckless infliction of emotional
otherwise be compensable under IIED, this
                                                    distress . . . are not in themselves related to
claim comes within the literal scope of the
                                                    the type of injuries covered by the Virgin
WCA because Eddy clearly suffered
                                                    Isla nds w orkm en’s c om pens atio n
statutory “injuries.” Accordingly, there
                                                    scheme”) (quoting Robinson, 19 V.I. at
can be liability on this claim only if it is
                                                    109) (internal quotation marks omitted).

                                               12
occurring” was “a hundred percent.” JA at           District Cour t a n d r em and w ith
1539. Nevertheless, the record undeniably           instructions to enter judgment in favor of
shows that Eddy was injured in an                   WAPA.
“accident.” Brown’s conduct may have
set the stage for that accident, but nothing
suggests that he had an affirmative desire
to inflict severe emotional distress on
Eddy.

   Accordingly, Eddy’s post-accident
emotional distress claim is barred by WCA
§ 284(a).9

             IV. Conclusion

   We will reverse the judgment of the



   9
    Relying upon § 47 of the Restatement
(Second) of Torts, W APA raises a
provocative argument suggesting that no
IIED cause of action can lie with respect to
this post-accident theory because Brown
risked invading Eddy’s right to physical
well-being as opposed to his right to be
free from severe emotional distress. See
Restatement (Second) of Torts § 47
(“Except as stated in [the Restatement’s
sections on assault], and in [the section on
IIED], conduct which is tortious because
intended to result in bodily harm to
another or in the invasion of any other of
his legally protected interests does not
make the actor liable for an emotional
distress which is the only legal
consequence of his conduct.”). We have
no occasion here to express an opinion as
to whether in the absence of the WCA an
IIED claim could properly be predicated
on this second theory.

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