Workers' Compensation-Valencia V. Freeland & Lemm Construction Company: Proving an Employer's Intent Remains Nearly Impossible in Tennessee

In August 1998, Francisco Valencia (Decedent), an employee of Freeland & Lemm Construction Company (Freeland), died after an open construction trench collapsed around him while working at a Freeland job site.1 Prior to Decedent's death, Freeland was twice cited for violating the Tennessee Occupational Safety and Health Act of 1972,2 which requires construction companies to slope the sides of their trenches or to use trench boxes.3 At the time of Decedent's death, trench boxes were on site, but unused.4 Additionally, the trench did not contain an exit, such as a stairway or ladder, a fact that created an additional violation of safety standards.5Subsequently, Decedent's son, Mario Valencia (Valencia), filed suit against Freeland, alleging claims under the Workers' Compensation Act6 and, in the alternative, various causes of action in traditional tort liability.7 Valencia then amended the complaint to allege that Freeland acted with actual intent to injure Decedent.8 Freeland moved to dismiss Valencia's tort claims, and the trial court granted the motion.9 The trial court found that the amended complaint alleged facts that indicated Freeland's conduct was substantially certain to cause injury, but it fell short of alleging facts sufficient to show that Freeland acted with actual intent to injure.10 Prior precedent allowed an exception to workers' compensation exclusivity only when the employer acted with actual intent to injure.11 The court of appeals affirmed and held that Valencia could recover only under the Workers' Compensation Act.12The Tennessee Supreme Court granted appeal to determine whether employer conduct that is substantially certain to cause employee death or injury falls within the judicially created exception to workers' compensation exclusivity.13 The Tennessee Supreme Court held, affirmed. Workers' compensation is an employee's exclusive remedy unless the plaintiff employee proves the employer acted with actual intent to injure the employee; conduct that is substantially certain to cause injury is not within the purview of the exception. Valencia v. Freeland & Lemm Constr. Co., 108 S.W.3d 239 (Term. 2003).Like all states, Tennessee's workers' compensation statutes trace their history to nineteenth century Europe.14 In response to growing numbers of work-related deaths and injuries during the Industrial Revolution, Germany became the first European state to enact a comprehensive workers' compensation system.15 Germany's Accident Insurance Law of 1884 and its subsequent amendments covered virtually all German laborers.16 By 1910, nearly all European countries had enacted various forms of comprehensive workers' compensation statutes.17In England and the United States during the late nineteenth century, the common law provided the only protection to employees injured while working.18 At common law, an employer owed an employee the duty to provide, among other things, a reasonably safe place to work.19 Additionally, employees injured at the hands of co-employees could invoke the doctrine of respondeat superior to hold the employer liable.20 Common law rules such as these, however, were severely limited by common law defenses available to the employer.21 Contributory negligence, assumption of the risk, and the fellow-servant rule would, if proved, completely bar an employee's recovery.22 England combated the harsh common law treatment of employees by enacting the Workmen's Compensation Act of 1897.23 American states began to follow their European peers by enacting workers' compensation acts in the twentieth century.24 Early on, some state courts invalidated such acts on constitutional grounds.25 In 1917, however, the United States Supreme Court issued a series of decisions that upheld a state's right to enact workers' compensation programs.26 Subsequently, Tennessee enacted its first workers' compensation statute on April 15, 1919.27American workers' compensation acts typically provide the exclusive remedy available to employees injured by accident during the scope of employment; therefore, employees lose the right to sue under common law causes of action. …