                                                                                       COURTFILED


                                                                                                 OF APPEALS
                                                                                                 If5 ;01}j
                                                                                     20111 APR 23
                                                                                                  PH 2: 29
                                                                                     STATE OF WASHINGTON
                                                                                     f3Y
                                                                                                    i1TY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                  DIVISION II


MICHAEL S. MICHELBRINK, JR.,                      a   single                    No. 44035 -1 - II
man,




                                     Respondent,


          v.




STATE OF WASHINGTON, WASHINGTON                                            PUBLISHED OPINION
STATE PATROL,


                                     Appellant.


          HUNT, J. —       The Washington State Patrol ( WSP) appeals the superior court' s denial of its


motion for summary judgment' against Michael S. Michelbrink, Jr. in his action for deliberately
                                                      2
intentional infliction       of " certain    injury " from being shot with a Taser during WSP training.

WSP argues that the superior erred in denying its motion for summary judgment because (1) the

Industrial Insurance Act ( Act),            Title 51 RCW, grants WSP immunity from tort liability for

Michelbrink' s    workplace      injury; ( 2) there was no evidence that WSP intended to cause " certain

injury "; ( 3) WSP neither had knowledge of nor willfully disregarded that actual injury was

1 Our court commissioner previously granted WSP' s petition for discretionary review.
2 See Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 18, 109 P. 3d 805 ( 2005).
The term " certain injury" has important legal meaning in the context of a case like this one,
which involves an asserted statutory exception to an employer' s usual immunity from lawsuit for
workplace      injuries.    As   we explain more          fully in the analysis portion of   this opinion, " certain

injury"   means   that the    employer      knew that the     injury would actually occur.
No. 44035 -1 - II




certain to occur; and ( 4) Michelbrink improperly pled his outrage claim and, in any event, the

Act bars    such a claim.     Michelbrink responds that he presented a genuine issue of material fact


warranting denial of summary judgment to WSP and that we improvidently granted discretionary

review.    Holding that Michelbrink presented a genuine issue of material fact on his claim that

WSP      intentionally    inflicted "   certain   injury," we affirm the superior court' s denial of WSP' s

motion for summary judgment and remand for trial.

                                                          FACTS


                                                      I. BACKGROUND


                                               A. Workplace Taser Injury

          Michael S. Michelbrink, Jr.            was commissioned as a                WSP trooper   on   March 1,    1999.   In


the following years, WSP researched the use of Tasers3 as a possible law enforcement tool. WSP

purchased      Tasers in 2006     and    implemented         a   Taser training        program   for its troopers.    Echoing

the manufacturer' s warnings, WSP' s Taser training manual warns that Taser exposure may cause

 cuts,    bruises   and    abrasions         caused   by falling, strain related injuries from strong muscle

contractions such as muscle             or   tendon tears,       or stress   fractures," and other " potential injuries."


Clerk' s Papers ( CP) at 136.


          On August 10, 2007, Michelbrink                participated        in   a   WSP Taser training    course.    At that


time, Taser training was required for all troopers who opted to use a Taser on the job ( WSP


3 A Taser is an electronic device that shoots two electrified dart-like barbed probes into the
recipient' s back to conduct an electrical current that causes the recipient' s muscles to seize up
and to convulse, temporarily incapacitating him or her.     According to the manufacturer, Taser
International, Inc., a Taser " can cause strong muscle contractions that may cause physical .. .
injuries ...    and   may   result   in secondary injuries,"           including elevating the risks " of serious injury
or   death."   CP at 135.




                                                                   2
No. 44035 -1 - II




training materials explained to troopers why Taser exposure was mandatory and medical

certification   was      required     for   all   WSP troopers before Taser training).             WSP had medically

certified Michelbrink to be fit for duty, and he had reported no pre- existing condition to WSP.

WSP' s Taser instructor exposed every trainee, including Michelbrink, to the Taser, for one to

five seconds. As WSP expected, the Taser exposure caused Michelbrink instant temporary pain,

discomfort, trouble         breathing,       and    incapacitation.       Michelbrink was later diagnosed with a

                                                              4
fracture in his    vertebrae and a "        bulged disc. "        CP at 32.


                                            B. Worker' s Compensation Claim


         Two weeks after the Taser incident, on August 27, 2007, Michelbrink filed a worker' s

compensation claim with              the Department      of   Labor    and    Industries ( Department),   asserting that he

had    sustained    a   back    injury during        WSP training.           The Department accepted his claim and


granted him worker' s compensation medical benefits; the WSP Chief approved Michelbrink' s


request for temporary disability leave, effective August 31, 2007, on grounds that Michelbrink

was    physically      unable   to   perform      his duties.     While on temporary disability leave, Michelbrink

received full pay and benefits; after this disability leave expired on March 1, 2008, Michelbrink

used his accumulated sick leave.


         Three and one -half months later, on June 12, Michelbrink' s physician released him to


work in a limited duty position for four hours per day; and WSP assigned Michelbrink to a part-

time, limited      duty    position.        On August 11, WSP extended this limited duty assignment and


4
    WSP was aware of at least one other training incident in which an individual exposed to a Taser
had    suffered    a    fracture.     In that incident, WSP had contacted the manufacturer to find out
    information    on other people          that had    a serious      fracture ";   but the record does not reflect any
response to this inquiry. CP at 133.



                                                                   3
No. 44035 -1 - II




informed Michelbrink that he would continue to work part-time until his physician determined


that he was capable of returning to full -ime duty. During this part-time assignment, Michelbrink
                                         t

applied for and received loss of earnings benefits from the Department.


          On January 13, 2009, after Michelbrink' s physician had released him to work in a limited

duty position for eight hours per day, WSP assigned Michelbrink to a temporary, full -ime,
                                                                                     t

limited   duty   position.    On April 23, the WSP Chief approved Michelbrink' s request for a long-

term limited - uty position; WSP assigned him to be a background investigator in its Human
             d

Resources Division, where he continued to receive the same benefits and pay as other troopers.

On   May      18, the Department "       awarded"      Michelbrink      a "   Category 2 permanent thoracic spine

impairment." CP at 36.


                                                      II. PROCEDURE


                              A. Lawsuit; Denial of Summary Judgment to WSP

          A    few    months       later, Michelbrink        sued     WSP,    alleging   that   it had "   deliberate[ ly]

inten[ ded]" to      cause   him   certain   injury   when   it   exposed   him to the Taser    during training.   CP at


3.   WSP moved for summary judgment dismissal of Michelbrink' s action on the ground that the

Act barred this civil lawsuit because Michelbrink had already received worker' s compensation

benefits for his injuries incurred during the WSP Taser training, which by law was his exclusive

remedy.       In his response to WSP' s motion, Michelbrink attempted to assert an additional claim


for outrage. 5 The trial court denied WSP' s motion for summary judgment.




5 The record before us on appeal does not show whether Michelbrink ever moved to amend his
complaint to add the outrage claim.




                                                                  4
No. 44035 -1 - II



                                            B.   Interlocutory Discretionary Review

               Our    court   commissioner granted          WSP'   s petition   for   discretionary   review.      We denied


Michelbrink' s motion to modify our commissioner' s grant of discretionary review, rejecting

Michelbrink' s          argument        that   our   commissioner      had   improvidently    granted    review.       We now


address WSP' s interlocutory appeal from the superior court' s denial of its motion for summary.
                 6
judgment.


                                                             ANALYSIS


               WSP argues that the superior court erred in denying its motion for summary judgment

because, as a matter of law, its provision of worker' s compensation benefits under the Industrial


Insurance Act immunized it from separate tort liability for Michelbrink' s workplace injuries.

Michelbrink counters that the superior court properly denied WSP summary judgment because

    1)    WSP knew that the Taser                would cause " certain       injury" during   trooper    training; ( 2) WSP


nevertheless deliberately subjected its troopers to such injury; and ( 3) he raised a genuine issue

of material fact about whether WSP knew and willfully disregarded certain injury and, therefore,
                                                                                                         8
his injuries fell             outside   the    scope   of   employer    immunity      under   the Act.         We agree with


Michelbrink.




6
     Our court commissioner stayed the superior court proceedings pending this appeal.

7
         WSP   also    argues    that the      superior court erred     in allowing .Michelbrink' s          outrage   claim "   to
proceed" because Michelbrink failed to amend his complaint to add this claim. Br. of Appellant
at      Because Michelbrink' s outrage claim is beyond the narrow scope of our interlocutory
         15.
discretionary review, we do not address this WSP argument.

8 We do not address Michelbrink' s argument that our commissioner improvidently granted
review because we already rejected that argument when we denied his earlier motion to modify
the commissioner' s ruling granting discretionary review.

                                                                   5
No. 44035 -1 - I1



                                                         I. STANDARDS OF REVIEW


        We review de novo the superior court' s denial of WSP' s motion for summary judgment,

engaging in the             same     inquiry      as    the    superior court.         Macias      v.   Saberhagen Holdings, Inc., 175


Wn.2d 402, 407, 282 P. 3d 1069 ( 2012).                                 Generally, the party moving for summary judgment,

here, WSP, bears the burden of showing there is no genuine issue of material fact for trial. Elcon

Const. Inc.       v.    E. Wash. Univ., 174 Wn.2d 157, 169, 273 P. 3d 965 ( 2012).                                   The superior court


should grant summary judgment only if,

          after considering all the pleadings, affidavits, depositions or admissions and all
         reasonable inferences drawn therefrom in favor of the nonmoving party, it can be
         said (        1)    that there      is   no      genuine        issue    as   to    any   material    fact, ( 2) that all
         reasonable persons could reach only one conclusion, and ( 3) that the moving party
         is entitled to judgment as a matter of law."

Walston      v.   Boeing Co.,            173 Wn.        App.     271, 279, 294 P. 3d 759 ( 2013) (             quoting Baker v. Schatz,
                                                                          9
80 Wn.   App.          775, 782, 912 P. 2d 501 ( 1996)).


         The Act creates a worker' s compensation scheme that provides an employee' s sole

                                                   10
remedy for        workplace           injuries.          RCW 51. 04. 010. For this reason, the legislature directs us to


construe     the Act "            liberally ...         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



9
    Review   granted,            177 Wn.2d 1019 ( 2013) (               oral argument heard February 13, 2014, cause no.
88511 -7).


1° As our Supreme Court has consistently explained,
         In 1911,            as    the   result of a " grand            compromise,"          the [ Act] granted Washington
         employers             immunity from lawsuits arising from workplace injuries. [ Birklid v.
         Boeing             Co., 127 Wn.2d 853, 859, 904 P. 2d 278 ( 1995)]. In exchange, the [ Act]
         created            an    exclusive       workers'         compensation             system that provided       swift and

         certain recovery for injured employees, regardless of fault. Id.; RCW 51. 04.010.
 Vallandigham, 154 Wn.2d at 26 -27.



                                                                              6
No. 44035 -1 - II



51. 12. 010.        Thus, we must also liberally construe the legislature' s exception to the Act' s

otherwise exclusive coverage when " injury results to a worker from the deliberate intention of

his   or   her   employer       to   produce such      injury." RCW 51. 24. 020 ( emphasis added).

            II. DELIBERATE INTENTIONAL INJURY EXCEPTION TO ACT' S EMPLOYER IMMUNITY

            WSP argues that RCW 51. 24. 020 bars Michelbrink' s tort action as a matter of law.

Michelbrink         counters         that   his    claim — that WSP deliberately and intentionally injured him —

removes          him from the Act' s              otherwise   exclusive     workplace   injury   coverage.   We agree with


Michelbrink.


            In general, the Act immunizes employers from employee lawsuits for injuries in the

course of        their   employment.              Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16,


26, 109 P. 3d 805 ( 2005).                  Nevertheless, an employee may circumvent this immunity and file a

lawsuit for additional damages in excess of his worker' s compensation benefits if the employer


deliberately        intended to        cause certain      injury   to the   employee.    Vallandigham, 154 Wn.2d at 27.


As RCW 51. 24. 020 provides:


            If injury results to a worker from the deliberate intention of his or her employer to
            produce      such        injury,   the   worker ...     shall   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.


 Emphasis          added).      Although no statute defines RCW 51. 24. 020' s term " deliberate intention,"

our. Supreme Court has held that it


            means (      1) `   the employer had actual knowledge that an injury was certain to
            occur'       and (    2) the employer ` willfully disregarded that knowledge.' . .




                                                                      7
No. 44035 -1 - II




            Disregard of a risk of injury is not sufficient to meet the first Birklid prong;
            certainty of actual harm must be known and ignored)"

Vallandigham,            154 Wn.2d     at   27 - (
                                               28      emphasis        added) (   internal   citations   omitted) (   quoting

                                                                                        12
Birklid     v.   Boeing Co.,   127 Wn.2d 853, 865, 904 P. 2d 278 ( 1995)).                   Applying this standard here,

we must determine whether Michelbrink raised an issue of material fact about whether WSP


knew and willfully disregarded that injury from its Taser training was certain to occur.

                    A. WSP'     s   Knowledge   of "Certain        Injury ": Question of Law and Fact

            WSP admits it was aware that its law enforcement training necessarily carried the risk of

injury; but WSP argues it could not have been certain that the Taser training would cause the

serious injuries that Michelbrink suffered. Michelbrink counters that the superior court properly

denied summary judgment to WSP because there are genuine issues of material fact about

whether WSP knew that Taser exposure would cause " certain injury."

                                                 1.    Certainty of injury

            The record contains the following evidence of certain injury, about which WSP had

knowledge: A Taser is an electronic device that uses propelled wires or direct contact to conduct


electrical       energy to incapacitate its target.            Taser exposure involves two electrified dart-like


probes being shot into the recipient' s back; on contact, these probes transmit an electrical charge

that      causes   the   recipient' s muscles   to    seize   up   and   to   convulse and affects "     sensory and motor



11 "` [
    E] ven an act that has substantial certainty of producing injury does not rise to the level of
specificintent to cause injury. ' Vallandigham, 154 Wn.2d at 29 ( quoting Folsom v. Burger
King, 135 Wn.2d 658, 665, 958 P. 2d 301 ( 1998)).

12 Vallandigham emphasized that Washington courts have found only the first prong of the
Birklid test met in limited scenarios, most of which involved repeated exposure to toxic
chemicals.         Vallandigham, 154 Wn.2d at 30 -31.




                                                                   8
    No. 44035 -1 - II



    functions," temporarily              incapacitating him           or     her. CP   at   48.   Taser International, Inc.' s product


    materials explained           that the Taser           probe' s   barbs. cause     " wounds,"     which "[   i]n most areas of the


    body"       will   be " minor."      CP at 135. 13

                WSP' s Lead Firearms Instructor Mark Tegard, responsible for the development of WSP' s


     Agency           Taser Program"          and    training "   all   agency     personnel who were         issued   a   Taser," knew


    about       the    following       injuries from Tasers: "[              T] he 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   48, 54 ( emphasis      added).   We cannot tell from the


    truncated pre -trial record before us the degree of "certainty" Tegard meant when he described the

    13 "
           In   most areas of      the       body,   by [ Taser] probes will be minor. [ Taser] probes
                                                     wounds caused

    have small barbs." CP at 135. The Taser manufacturer also provided the following additional
    warnings about apparently " less certain" risks of injury:
           4.  The [ Taser] device can cause strong muscle contractions that may cause
                physical     exertion          or             type
                                                     athletic -         injuries to         some   people.     These       muscle
                 contractions can result in strain -
                                                   type injuries such as hernias, ruptures, or other
                 injuries to soft tissue, organs, muscles, tendons, ligaments, nerves, joints, and
                 stress /compression fractures to bones, including vertebrae. ... .
                 5.    These strong muscle contractions usually render a subject temporarily unable
                 to    control   his    or   her    movements         and    may   result    in secondary injuries.        Under

                 certain circumstances, this loss of control can elevate the risk(s) of serious injury
                 or death.


                 10.     Use of a [ Taser] device in drive ( or touch) stun mode can cause marks,
                 friction abrasions, and /or scarring that may be permanent depending on individual
                 susceptibilities or circumstances surrounding [ Taser] device use and exposure.
    CP     at   135 ( emphasis added). To the extent that these additional warnings describe only possible
    injuries that " usually," " may," or " can" occur, for purposes of our analysis we agree with WSP
    that Michelbrink cannot use them to meet the first prong of the Birklid test, knowledge of
     certain injury," to defeat summary judgment. Vallandigham, 154 Wn.2d at 33 ( citing Birklid,
    127 Wn.2d at 865).
                 In so noting, however, it is not our intent to opine about the admissibility at trial of these
    additional warnings and of other such potential evidence of WSP' s knowledge of the risks
    involved in its Taser training.



                                                                              9



1
No. 44035 -1 - II



Taser'     s " most     typical effects."           CP at 54. 14 Nevertheless, taken in the light most favorable to

Michelbrink         on    summary judgment, Tegard'                 s   declaration sufficiently describes "         certain injury"

for purposes of establishing an issue of material fact to warrant going to trial and subjecting him
                                                          15
to   cross -examination on             this   subject.         See Vallandigham, 154 Wn.2d at 33 ( citing Birklid, 127



14
     WSP' s own training materials described the following potential effects from Taser exposure:
          Puncture wounds: The two probes impact with a velocity of approximately 165
                                                                             1/
            ft/ sec.    and are capable        ofpenetrating up to                4[   inch] into the flesh. Extreme care
            must be taken to avoid injury to sensitive areas, especially the eyes, where serious
            permanent injury could occur... .
             Skin Irritation:           The [ Taser] weapons can cause minor signature marks on the
            skin similar to a minor burn in the areas where probes or clips are attached. Also,
            minor bleeding may occur if the probes penetrate the skin.
CP    at   94 (   emphasis added).            Unlike Tegard' s declaration, however, we do not interpret WSP' s
training materials as establishing certain injury for purposes of defeating summary judgment
here.


15 Last year the Montana Supreme court addressed a somewhat analogous " certain injury" issue
but reached a different result on slightly different grounds in Harris v. Dep' t of Corrections, 368
Mont. 276, 294 P. 3d 382 ( 2013). Despite its similar Taser injury facts, we decline to apply this
Montana case here because, in our view, our courts should not similarly craft and impose
additional requirements onto our legislatively crafted state workers'       compensation scheme;

rather, such changes are the province of our legislature, not our courts.
            After the Montana Department of Corrections intentionally exposed one of its employees
to a Taser during mandatory training, the employee, Harris, brought an intentional tort action
against     the    state under    Montana'          s   Industrial Insurance Act, MCA 39 -71 -413.               Harris, 368 Mont.
at   279 -80.      Like Washington' s Act, 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          and   RCW     51. 24. 020.   Also   as   with
Washington'         s   Act, the Montana            employee needed          to "      identify ...   evidence that [ the State] had
actual      knowledge that [ the              employee' s]        exposure        to the [ T] aser was certain to injure him."

Harris, 368 Mont. at 284. Affirming the superior court's grant of summary judgment to the State
and dismissal of the employee' s complaint, the Montana Supreme Court held that the employee
had failed to           show   that the State "          had certain knowledge that any of the employees would be
harmed."           Harris, 368 Mont.           at   287.       Unlike Washington' s Birklid test, however, the Montana
Supreme Court appears to have injected an additional judicially crafted requirement into
Montana' s scheme when it also 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, 368 Mont. at 284 ( emphasis added).



                                                                        10
No. 44035 -1 - II



Wn.2d      at   865).     We hold that in this summary judgment context, Tegard' s description of the

Taser'   s"     most    typical     effects, "16 together with the Taser manufacturer' s warning that Taser
                                    17
probes cause " wounds, "                 were sufficient evidence of "certain injury" to create a material issue

of fact.


                                                       2. Extent of injury

           The Act' s exception to employer immunity contains no language making a civil action

for excess damages contingent on the severity of the initial injury that an employer deliberately

causes     in disregard       of    its knowledge that its         action will   always    produce   this "   certain injury."




           To our knowledge, neither Birklid nor any other Washington case has held that an
exclusive "intent to harm" ( apparently unaccompanied by intent to achieve other goals, such as to
educate) is a prerequisite for the Act' s intentional injury exception to employer immunity for
worker injury. Here, as in the Montana case, WSP' s objective was both to educate and to train

its troopers in the use of Tasers; and, taken in the light most favorable to Michelbrink, the
evidence on summary judgment shows that WSP exposed participating troopers to Tasers
knowing they would be injured. But WSP' s knowledge of this certain injury was not the same as
acting with an intent to harm to the exclusion of other purposes, such as education, as Harris
apparently required under Montana' s somewhat analogous statutory scheme.
          rejecting Montana' s
           In                                     judicial    incorporation      of   an   additional "   intent    to   harm"
requirement for   Washington' s                  scheme,     we follow our legislature' s            directive to    construe
Washington'        s    Act   liberally " for the purpose of reducing to a minimum the suffering and
economic     loss arising from injuries . . . occurring in the                        course   of    employment."        RCW
51. 12. 010.    In contrast, Montana' s legislature expressly                         forbids construing its workers'
compensation            statute "   liberally    in favor    of   any party."    MCA 39 -71- 105( 5).         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 is
another reason that we reject adopting the Harris rationale here.

16CPat54.

17 CP at 135.



                                                                    11
No. 44035 -1 - II



                                                18
Moreover, the       parties    do   not cite,        nor are we aware of, any Washington cases limiting such

 certain injury" to major injuries.

           On the contrary, RCW 51. 24. 020 expressly                       and   clearly   provides, "   If injury results to a

worker from the deliberate intention of his or her employer to produce such injury, the worker . .


18
   Much of the parties' arguments focus on Michelbrink' s more serious injuries that allegedly
resulted   from the certain initial Taser contact injury. See, e. g., Michelbrink' s assertion that the
initial " certain injury" when the probes contacted him caused a second, spine " contraction"
injury. Br. of Resp' t at 14. The statutory definition of "injury" appears to include Michelbrink' s
other " physical       conditions"      that "       result[ ed] "    from the initial Taser injury. RCW
                                                                                                     contact

51. 08. 100 ( emphasis      added).     But in this interlocutory appeal, we focus on a threshold issuethe
known certainty of the initial Taser contact injury and whether Michelbrink raised an issue of
material fact sufficient ( 1) to defeat summary judgment on the Act' s employer immunity
exclusion,     and (   2) to warrant a trial for damages at least for this certain initial injury and
potentially also for his other more severe injuries that this initial injury may have triggered,
regardless of whether these allegedly " resulting" injuries were also " certain."
        WSP appears to limit its definition of Taser " injury" to significant injuries suffered by
only   a   few individuals. See Br.          of   Appellant      at   28 -29.     WSP also appears to argue that the Act
bars recovery of damages for Michelbrink' s secondary injuries unless WSP was certain, for
example,     that a back fracture like Michelbrink' s                     would result      from Taser    exposure.   But WSP
misconstrues           An employee can fall within the Act' s immunity exemption by showing
                   the test:

that the employer willfully disregarded some amount of certain injury, not necessarily all the
resultant    injuries for      which   the   employee         seeks       recovery.     Vallandigharn, 154 Wn.2d at 28.
Thus, even if WSP could not specifically foresee with certainty that Michelbrink' s fracture
would result from his being shot by a Taser, he raises a genuine issue of material fact about
whether WSP was certain that he would suffer an injury when it intentionally subjected troopers
to an activity that it knew was designed to cause pain, trouble breathing, involuntary muscle
contraction, incapacitation, electric shock, and at least a minor wound.
         The Act' s language does not expressly limit a plaintiff' s recovery for intentional injury to
the initial injury that was certain to occur. In order for the worker to recover, the plain language
of the statute requires that " injury results to a worker from the deliberate intention of his or her
employer      to   produce     such   injury."        RCW 51. 24. 020.            Birklid requires that " the employer had
actual knowledge that an injury was certain to occur and willfully disregarded that knowledge ";
it does not require the employee to prove the employer knew that all the resulting injuries
suffered by the employee were certain to occur.        Birklid, 127 Wn.2d at 865 ( citing RCW
51. 24. 020). Thus, it appears that if Michelbrink proves at trial that WSP intentionally caused a
certain injury, he meets the Act' s requirements to maintain his action, including seeking recovery
for additional unforeseeable or uncertain damages flowing from the injury, such as his fractured
back.




                                                                     12
No. 44035 -1 - II



 shall ...    have     cause      of action         against    the    employer."         RCW 51. 24. 020. And RCW 51. 08. 100


essentially defines two types                 of "   injury ": (      1) "    a sudden and tangible happening, of a traumatic

nature,    producing        an   immediate          or prompt result, and              occurring from       without "; " and" (   2) "   such



                                                                19
physical conditions as result                 therefrom. "            RCW 51. 08. 100 ( emphasis             added).     The first part of


this legislative definition covers the temporary pain, blistering, skin penetration, minor bleeding,

and electric                  commonly             experienced        by     someone exposed         to a Taser.    Such injury is more
                                             21;                                                                    22
than "    temporary discomfort"                     rather,   it is   a   tangible     and   immediate trauma.           We further note




19
     The summary judgment record does not contain medical testimony that Taser- induced muscle
contractions caused           Michelbrink'           s   fracture. But WSP acknowledges that Taser- induced muscle
contractions can cause fractures; and it does not dispute that Michelbrink' s fracture was caused
directly by the Taser exposure here. Again, we note that WSP training materials and the Taser
manufacturer' s warnings explain that the desired effect of the Taser is to cause involuntary
muscle contractions              with      every    exposure, which                is how the target becomes incapacitated.              The
record also shows that the Taser incapacitates 99 percent of the troopers exposed to this training.

20
     See, e. g., Keilhamer            v.    West Coast Telephone Co., 11 Wn.2d 24, 31,                             118 P. 2d 173 ( 1941)

 plaintiff recovered for injuries suffered after being shocked while using telephone).

21_ Br. _ f Appellant at 36.
        o

22 WSP also argues that a " temporary pain or discomfort" is not sufficient to meet the Birklid test
that the employer willfully disregarded actual knowledge of certain injury, and that the effects of
Taser exposure did not meet the standard of a "' continued injury. "' Br. of Appellant at 35
 emphasis omitted) ( quoting Birklid, 127 Wn.2d at 865).        Ten years after deciding Birklid, the
Washington    Supreme Court in Vallandigham clarified that "[ d] isregard of a risk of injury is not

sufficient to meet the first Birklid prong; certainty of actual harm must be known and ignored...
      C] ontinued injury [ must be] not only substantially certain but certain to occur."
 Vallandigham, 154 Wn.2d                     at    28, 32 (   emphasis         added and omitted).           The Supreme Court used
this "'   continued        injury '        language only in the              context of a     few   cases   addressing the " certainty"
 of injury to school district staff by behaviorally challenged students where, because of the lack of
 certainty of human behavior, continued injurious behavior by these students had to be shown to
 bring    the school        district       employees'         claims         within   the Act' s    immunity     exception.    See, e. g.,
 Vallandigham, 154 Wn 2d                     at    29 -35.     As the Supreme Court                 explained, "    given the inherently
 unpredictable nature of special education students ... ,                                at no point could the school district have
 been     certain   that   injury to       staff would continue."                  Vallandigham, 154 Wn.2d at 35.



                                                                              13
No. 44035 -1 - II



that WSP trained its troopers how to                         remove     Taser barbs from         a   human target.             Even if such


trauma is relatively minor, it falls within the definition of an " injury" for which a plaintiff may

recover in tort.


         We       reiterate   the legislature'      s   directive that        we construe "[    t] his title,"    namely Title 51, the

Industrial Insurance Act, " liberally"                  " for the purpose of reducing to a minimum the suffering and

economic         loss arising from injuries . . .                    occurring in the          course      of   employment."            RCW


51. 12. 010.       Title 51 RCW expressly includes                     chapter   24, "   Actions at Law for Injury or Death,"

which    further includes RCW 51. 24. 020, " Action                           against employer            for intentional       injury,"   the


employer         immunity     exception at     issue here.            Combining      this liberal     construction           directive23 with




        Here, in contrast, the facts do not involve the unpredictability of human behavior.
Instead, the facts involve repeated, predictable, known injury that the Taser will produce when
fired at and connecting with a WSP trooper. The facts here are more in line with cases involving
ongoing          exposure     of   employees            to    known          dangerous       equipment,         toxic    substances,       and

circumstances not           involving   the   vagaries of            human behavior. See,            e. g.,   Travis    v.   Dreis &   Krump
Mfg.    Co., 453 Mich. 149, 178, 551 N.W.2d 132 ( 1996) ( exposure to polychlorinated biphenyls
 PCBs), "        a continuously operative dangerous condition" that the employer " knows will cause an
injury ");   Fries     v.   Mavrick Metal    Stamping, Inc., 285 Mich. App. 706, 717, 777 N.W.2d 205
 2009) ( " continuously          operative dangerous condition ")..
23
     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"           on which our            Supreme          Court focused in
 Vallandigham, 154 Wn.2d                at    27.        The Vallandigham             court     explained        the    historic "     narrow"

interpretation       of   only   a single   key term in that           statutory               deliberate
                                                                                   exception — "                        intention ":
            M] ere negligence, even gross negligence, does not rise to the level of deliberate
          intention. Birklid, 127 Wn.2d                      at   860 -61.    Even failure to observe safety laws or
          procedures does not constitute specific intent to injure, nor does an act that had
            only    substantial      certainty          injury. Id. at 860.
                                                        of   producing          Before 1995,

            Washington courts interpreted the ` deliberate intention' exception to apply only
            where an employer or             its   agent          physically   assaulted an employee.              Birklid, 127
            Wn.2d at 861 -62.
                      In 1995, in Birklid, this court interpreted the deliberate intention exception
            to    reach   beyond intentional             physical       assaults[, . . . .      holding]        that the phrase



                                                                        14
No. 44035- 1- 11



                                                                         language                                we hold that the
                                                                                                    statute24,




the   general principle     that   we    look first to the      plain                    of   the


record   before   us shows    that the Taser       used on      Michelbrink        produced "        from   without" " a sudden



and   tangible   happening,    of a    traumatic   nature,     producing     an    immediate         or prompt result,"        falling

within   RCW       51. 08. 100'    s   first definition       of "   injury" for purposes of defeating summary

judgment: WSP ( 1) shot two electrified dart-like barbed probes into Michelbrink' s back, which


 2) on contact, conducted electrical energy that caused his muscles to seize up and to convulse,

incapacitating him.25 RCW 51. 08. 100.




          deliberate intention'          in RCW 51. 24. 020             means (   1) `   the employer had actual
         knowledge that an injury was certain to occur' and ( 2) the employer ` willfully
         disregarded that knowledge.'              Id.   at    865. [    T] he Birklid court rejected [ that] a
         cause of action would be permitted if the employer knew that injury was
          substantially certain' to occur[, or if] ` the employer had an opportunity
         consciously to weigh the consequences of its act and knew that someone, not
         necessarily the      plaintiff    specifically,      would      be injured.'         Birklid, 127 Wn.2d at
         865.     Instead, the Birklid court emphasized that it was ` mindful of the narrow
         interpretation Washington courts [ had] historically given to RCW 51. 24. 020, and
         of the appropriate deference four generations of Washington judges have shown
         to the legislative intent        embodied    in RCW 51. 04. 010.'               Id. Disregard of a risk of

         injury is not sufficient to meet the first Birklid prong; certainty of actual harm
         must be known and ignored.
Vallandigham, 154 Wn.2d at 27 -28 ( citations omitted).

24
      When   interpreting   statutes, "[ w] e   begin    by    examining the       plain      language    of     the   statute."   State
v. Bunker, 169 Wn.2d 571, 577 -78, 238 P. 3d 487 ( 2010).


25 WSP' s awareness of at least one other training incident in which an individual exposed to a
Taser had suffered a fracture and its subsequent attempts to find out from the manufacturer about
the frequency of serious fracture injuries does not, in our view, meet the statutory test that a
fracture injury was certain to occur. But Michelbrink does not need to prove that his fracture
was certain to occur in order to overcome summary judgment and to pierce WSP' s immunity
under the Act; he needs to show only that WSP knew that an injury, here, the initial Taser injury,
was certain to occur. RCW 51. 24. 020.




                                                                 15
No. 44035 -1 - II



                                                                                              inference26

           A     finder       of   fact   could             draw   the    reasonable                         that    the    Taser   probes

                    27
 wound[ ed] "            Michelbrink,      which wound was                   an "    injury" under the first broad definition in
                                                                                      28
RCW 51. 08. 100, in                addition       to    the    electric     shock,         involuntary      muscle    contractions,    and




temporary incapacitation previously                          noted.   29 We hold that for purposes of defeating summary

judgment, the record shows WSP was aware that certain initial injury would result when a Taser
                                             3°
barb   contacted a        human      body.

           Having held that Michelbrink offered sufficient evidence of WSP' s knowledge that use of

the Taser would produce certain injury to troopers undergoing the training to meet the first prong




26
     Hickle    v.   Whitney        Farms, Inc., 148 Wn.2d 911, 919, 64 P. 3d 1244 ( 2003) (                                citing Berger v.
Sonneland, 144 Wn.2d 91, 102 -03, 26 P. 3d 257 ( 2001)).

27 CP at 135.

28
     See Lehtinen        v.   Weyerhaeuser             Company,        63 Wn.2d 456, 459, 387 P. 2d 760 ( 1963), in which
our    Supreme Court expressly                    rejected, albeit         in   a   different
                                                                                    holding that " a
                                                                                                context,    an   earlier


series of static electrical shocks extending over an indefinite period of time did not constitute an
industrial injury under RCW 51. 08. 100" ( the definition of injury in Title 51 RCW). ( " We do not
accept ...   the view that one or more electrical shocks, ...    producing disability may not be a
compensable industrial injury. ").    Id. at 459. Thus, Washington law recognizes that even a

transitory occurrence, like an electric shock, which results in long term injury, like a fracture,
may be compensable under our workers' compensation scheme.

29 The record on summary judgment shows that Michelbrink' s initial injury from the Taser barbs
included pain and discomfort, trouble breathing, and incapacitation as a result of the Taser' s
electrical shock. Our Supreme Court has held that electrical shocks producing disability may be

compensable workplace injury. Lehtinen, 63 Wn.2d at 459.
30
     We   note      that RCW 51. 08. 100'              s"   second"      definition    of "   injury " — such
                                                                                                         "        physical conditions as

result [   from]" the first       injury— appears to cover Michelbrink' s other more serious injuries that
the    initial   certain      Taser injury allegedly triggered. But we leave the question of what other
injuries Michelbrink may have suffered, as well as the extent of the initial Taser contact injury,
for trial.




                                                                           16
No. 44035- 1- II




of the Birklid test, we next address the second prong of the Birklid testWSP' s disregard of this

knowledge.


               B. WSP'       s   Willful Disregard that   Injury Would     Occur: Question of Fact


          WSP argues that because it did not know that that the Taser training would injure

Michelbrink to the extent he suffered, its actions did not fall within the second prong of the

Birklid testwillful disregard           of certain   injury.31 Michelbrink responds that there is an issue of

material    fact    about    whether,    given WSP' s knowledge of certain injury, WSP nevertheless

disregarded this knowledge and deliberately intended to injure him when its instructor shot him

with a    Taser    during training.     Taken in the light most favorable to Michelbrink, as we must on


summary judgment, the record shows that ( 1) WSP required Taser training for troopers opting to

use   Tasers   on   the   job; ( 2) WSP knew at a minimum that the Taser barbs would wound and


deliver    an electric    shock     on contact with a     trooper' s   back;   and (   3)   despite this knowledge of


certain injury, WSP shot troopers with Tasers during training, which it required of all troopers

using Tasers in the         course of   performing their duties.       We hold, therefore, that Michelbrink has


established a material issue of fact about whether WSP deliberately intended to injure him,

despite its knowledge that the Taser barbs were certain to cause injury, to defeat summary

judgment.




31
     Interpreting the Act to bar tort actions unless the employer " deliberately intended to injure" the
employee, our Supreme Court has noted that not even " an act that has a substantial certainty of
producing injury" is sufficient to overcome this high bar. Birklid, 127 Wn.2d at 860.

                                                            17
No. 44035 -1 - II




        We affirm the superior court' s denial of WSP' s motion for summary judgment dismissal

of Michelbrink' s tort action for intentional injury, and we remand for trial.




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