Parret v. UNICCO Service Co.

2005 OK 54, 127 P.3d 572, 2005 WL 1515924

• Court: Supreme Court of Oklahoma
• Decided: September 12, 2005
• Docket: 99,883
• Status: Published

Opinions

COLBERT, J.

¶ 1 The electrocution death of a worker resulted in an action in the District Court for the Western District of Oklahoma. That court has certified two questions pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat. tit. 20, §§ 1601-1611 (2001):

1. What is the standard of intent necessary for an employee’s tort claim against an employer to fall outside the protection of the Oklahoma Workers’ Compensation Act? Is the standard the “true intentional tort” test, requiring deliberate specific intent to cause injury, or is the standard the “substantial certainty” test[?] Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, 23 P.3d 288.

2. Whether the scope of the test for determining principal or statutory employer status under the third tier of the three-tiered test adopted in Bradley v. Clark, 1990 OK 73, at ¶ 6 n. 10, 804 P.2d 425, 428, , is based upon all of the facilities owned by a hirer, including those owned in other states and/or countries, or whether it is improper to consider a private hirer’s plants outside of the state of Oklahoma in determining whether the hirer was actually engaged in the contract work at the time of the accident?

In response, this Court adopts the “substantial certainty” standard and holds that in determining statutory employer status, an Oklahoma court should consider only those facilities located within the State of Oklahoma.

FACTS

¶ 2 Pursuant to section 1604(A)(2) of title 20, the federal court has submitted “[t]he facts relevant to the question[s], showing fully the nature of the controversy out of which the question[s] arose.” Those facts are repeated here verbatim.

¶3 On July 20, 1999, Glenn Parret, an employee of UNICCO Service Company (UNICCO), was electrocuted while replacing emergency lights at the Dayton Tire Plant owned by defendant Bridgestone/Firestone, Inc. (Bridgestone) in Oklahoma City, Oklahoma. He died as a result of his injuries two days later and his widow, plaintiff Gwendolyn Kay Parret, received workers’ compensation death benefits. Bridgestone is a tire manufacturer and distributor with plants in the United States, Canada, Mexico, and Costa Rica and hired UNICCO, an independent contractor, to provide a wide range of maintenance services at its Oklahoma tire plant.

¶ 4 While the decedent was working on the emergency lights, he was approached by another UNICCO employee, who warned him not to work on the lights while they were “hot” or energized and advised him that other UNICCO employees had refused to do the work because they felt it was unsafe. The decedent responded that he would do the work he was asked to perform and would be careful when working on “hot” lights.

¶ 5 Fact disputes exist as to the level of the decedent’s understanding of electricity and his experience in working on electrical circuits, controls, and lights. Although both UNICCO and Bridgestone had written policies prohibiting employees from working on energized equipment, the evidence is contested regarding whether the decedent and other UNICCO employees were required to work on the emergency light system while it was “hot,” or without turning the electricity off, knowing the employees were unable to de-energize the 227 volt electrical system and that death was substantially certain to occur. The parties disagree whether UNICCO and Bridgestone’s conduct rose to the level of intentional conduct sufficient to maintain an action in tort, notwithstanding the exclusive remedy provision of Oklahoma’s Workers’ Compensation Act.

¶ 6 Also disputed are fact issues pertinent to a determination of whether Bridgestone was a statutory or principal employer of UN-ICCO workers under the Workers’ Compensation Act, including whether the work being performed by decedent was non-specialized and was necessary and integral to Bridge-stone’s operation of its tire plant. In its other plants in North America, Bridgestone performs maintenance on its equipment with its own employees and does not hire outside contractors like UNICCO for such work.

QUESTION 1 INTENTIONAL TORT EXCEPTION TO WORKERS’ COMPENSATION EXCLUSIVITY

¶ 7 Section 11 of the Workers’ Compensation Act, Okla. Stat. tit. 85, §§ 1-211 (2001), prescribes employer liability “for the disability or death of an employee resulting from an accidental injury sustained by the employee arising out of and in the course of employment, without regard to fault.” Section 12 makes that liability “exclusive and in place of all other liability of the employer.” This Court has long recognized, however, that in some eases “an employee who has been wil-fully injured by his employer [may] ha[ve] a common law action for damages.” Roberts v. Barclay, 369 P.2d 808, 809 (Okla.1962).

¶ 8 Oklahoma decisions involving the exception were reviewed in Harrington v. Certified Systems, Inc., 2001 OK CIV APP 53, 45 P.3d 430. That review included Thompson v. Madison Machinery Co., 684 P.2d 565 (Okla.Ct.Civ.App.1984), which held that “the workers’ compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker’s employment [and] were not designed to shield employers or co-employees from willful, intentional or even violent conduct.” Id. at 568. The Harrington court noted that, in each case reviewed, “the court decided whether the conduct of the defendant employer involved a willful or intentional injury without specifying how the court defined willful or intentional.” 45 P.3d at 434. It then defined a willful or intentional injury “to involve knowing and purposeful conduct on the part of the employer to injure the employee.” Id. at 435.

¶ 9 In that same year, a decision from this court was issued in Davis v. CMS Continental Natural Gas, Inc., .2001 OK 33, 23 P.3d 288. There, this Court, consistent with Harrington, reaffirmed that only intentional misconduct on the part of an employer would remove a worker’s injury from the exclusive remedy provision of the Workers’ Compensation Act. Davis foreshadowed this Court’s allegiance to one of two standards commonly applied to determine whether a worker’s injury resulted from the “intentional” conduct of the employer. Which standard would be adopted, however, remained undecided because the employer’s conduct in Davis was not “intentional” under either standard. Id. at 296. Today, precisely that issue is presented in the form of Question One: “Is the standard the ‘true intentional tort’ test, requiring deliberate specific intent to cause injury, or is the standard the ‘substantial certainty’ test?”

¶ 10 To date, some states do not recognize an intentional tort exception to workers’ compensation exclusivity. 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 103.01 (Math.Bend.2004). Some states that do, limit the exception to instances in which the employer injures the employee deliberately and with the actual intent to cause injury. Id. at § 103.03 n. 1. In a few states, the exception is expressly limited to cases of intentional assault. See 7 Causes of Action 2d 197, § 17 at 245 (1995). But, in any jurisdiction applying the “specific intent” standard, “unless the case involves an assault or a battery, recovery will probably be denied.” 48 Am.Jur. Proof of Facts 2d 1, § 2 at 12 (1987). “Nevertheless, in recent years there has been a trend toward permitting common law suits when the injury is a result of actions the employer knew were ‘substantially certain’ to cause injury. About a dozen states now follow this or a similar rule.” 6 Larson, at § 103.03 n. 1.

¶ 11 The first court to reject the “specific intent” standard in workers’ compensation observed that it originated from very early workers’ compensation decisions in Washington and Oregon which defined employer intent in the same terms applied to murder statutes. See Mandolidis v. Elkins Indus. Inc., 161 W.Va. 695, 246 S.E.2d 907, 912-913 (1978). That court found “no adequate justification for adhering to the construction of a statute which is not only erroneous but which works an injustice on persons injured as a result of conduct which is so likely to produce injury or death that its performance, under all circumstances, could perhaps warrant criminal liability.” Id. at 913. Since that time, “both courts and legislatures in a fair number of other jurisdictions have rejected the proposition that actual intent to harm is required for an employer’s conduct to be actionable in tort and not protected by the exclusivity provisions of workers’ compensation.” Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 230 (1991). Essential to the determination of which standard will be applied in Oklahoma, however, is an understanding of the concept of “intent” in tort law and its relationship to other standards of conduct.

TORT LIABILITY CONTINUUM

¶ 12 In Graham v. Keuchel, 1993 OK 6, 847 P.2d 342, 362, this Court explained that the common law divides “actionable tortious conduct into (1) negligence, and (2) willful acts that result in intended or unintended harm.” In the lower tier of tortious conduct lie three levels of negligence. Id. These are defined by statute in Oklahoma as slight negligence, ordinary negligence, and gross negligence. See Okla. Stat. tit. 25, §§ 5 & 6 (2001). In the higher tier lie two distinct levels: (1) wilful and wanton misconduct and (2) intentional misconduct. Id. at 362-363.

¶ 13 The level termed “wilful and wanton” misconduct, according to Professor Prosser, occupies “a penumbra of what has been called ‘quasi intent’” lying between gross negligence and intentional conduct. William L. Prosser, Handbook of the Law of Torts § 34, at 184 (4th ed.1971). As Graham, explained:

[t]he intent in wilful and wanton misconduct is not an intent to cause the injury; it is an intent to do an act — or the failure to do an act — in reckless disregard of the consequences and under such circumstances that a reasonable man would know, or have reason to know, that such conduct would be likely to result in substantial harm to another.

Graham, 847 P.2d at 362. Graham noted that “[w]hile ‘ordinary’ and ‘gross’ negligence differ in degree, ‘negligence’ and ‘willful and wanton misconduct’ differ in kind.” Id. Thus, comparative fault in Oklahoma remains confined to negligence and not to willful and wanton misconduct or to intentional misconduct. Id. at 363 (“[W]hile ordinary negligence of the plaintiff may be used as a defense against gross negligence, it may not be considered as a defense against any form of conduct found to be willful and wanton or intentional.”).

¶ 14 The Oklahoma Uniform Jury Instruction, which was derived from the Graham decision, explains:

The conduct of [Defendant] was willful and wanton if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be willful and wanton, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.

Oklahoma Uniform Jury Instructions (OUJI)(civil), No. 9.17. The instruction goes on to describe a higher level of misconduct explaining that a “[Defendant’s conduct was intentional if he/she desired to cause injury to [Plaintiff] or knew that such injury was substantially certain to result from [his/her] conduct.”

¶ 15 The analysis in Graham and the definitions derived therefrom and articulated in OUJI formulate a continuum of tort liability which may be outlined as follows:

I. Negligence

A. Slight Negligence — want of great care and diligence.

B. Ordinary Negligence — want of ordinary care and diligence.

C. Gross Negligence — want of slight care and diligence.¹

II. Willful Acts Resulting in Intended or Unintended Harm

A. Willful and Wanton Conduct

1. Unreasonable under the circumstances and

2. High probability of serious harm

B. Intentional Conduct

1. Desire to cause injury or

2. Knowledge that such injury was substantially certain to result.

This formulation of two levels of “willful acts that result in intended or unintended harm” is also found in specific areas of tort law.

¶ 16 The definition of intent in the area of infliction of emotional distress reflects this dichotomy. “[Defendant] intentionally caused emotional distress to [Plaintiff] if [he/ she/it] desired to cause such distress or knew that such distress was substantially certain to result from [his/her/its] conduct.” OUJI (civil) No. 20.2. A lower standard roughly equivalent to that of “willful and wanton” is also defined by that instruction. “[Defendant] recklessly caused emotional distress to [Plaintiff] if [he/she/it] knew there was a substantial probability that emotional distress to [Plaintiff] would result from [his/her/ its] conduct, and [he/she/it] deliberately disregarded that probability.”² Id. Similarly, the definition of intent applicable to the tort of interference with a contract states: “[Defendant's actions were intentional if [he/she /it] either desired to interfere with [Plaintiff's contract with [third Party], or [he/ she/it] was substantially certain that his actions would interfere with the contract.” OUJI (civil) No. 24.2.

¶ 17 These statements defining intent reflect the fact that

[t]he intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction.

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Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does.

Prosser, § 8, at 31 (footnotes omitted). These statements defining intent are mirrored in the Restatement (Second) of Torts. “The word ‘intent’ is used throughout the Restatement ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” 1 Restatement (Second) of Torts § 8A (1965). Comment (b) to that section further explains:

All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.

Id. Thus, an actor’s conduct is intentional when the actor has the desire to cause the consequences of the act or when the actor knows the consequences are substantially certain to result from the act. The question is whether some compelling policy requires that a different definition of “intent” be applied to the intentional tort exception to workers’ compensation exclusive remedy provision.

POLICY CONSIDERATIONS

¶ 18 This Court will look to the text of the Workers’ Compensation Act, its underlying policies, and to the purposes of workers’ compensation generally in applying the provisions of the Act. The balance of interests between employer and employee is the primary reason asserted in favor of retaining a “deliberate specific intent” standard for determining employer intent. An Illinois intermediate appellate court feared that “[a]dopt-ing the substantial-certainty standard would disturb this careful balance because of the difficulty of employing it to distinguish between accidental and nonaccidental injury.” Copass v. Illinois Power Co., 211 Ill.App.3d 205, 155 Ill.Dec. 600, 569 N.E.2d 1211, 1216 (1991). No discussion of the policies underlying workers’ compensation or of how a “specific intent” standard furthers those policies appears in the opinion. It is essential that this Court delve into this discussion and lay it to rest.

¶ 19 Workers’ compensation plans were enacted, beginning in 1908 and eventually in all fifty states, in response to a problem. Industrial accidents had reached epidemic proportions while the employer’s common law defenses of contributory negligence, assumption .of risk, and the fellow servant doctrine generally prevented recovery by an injured worker. At a time when most households had only one breadwinner, a worker’s injury could leave an entire family destitute. Workers’ compensation was designed to avoid destitution. It “was passed for the special benefit of injured work[ers]. The Legislature intended the benefits of the act shall flow to the injured work[ers] and their dependents, in order to afford them a living and prevent them from becoming public charges.” Corbin v. Wilkinson, 175 Okla. 247, 52 P.2d 45, 48 (1935). Workers’ compensation is a mechanism for providing wage benefits and medical care to injured workers and spreading the cost of these benefits through insurance. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407 (Tex.1985). The premium cost is passed on in the price of the employer’s product or service.

¶20 To facilitate workers’ compensation and its objectives, an “industrial bargain” was imposed. The employee gave up the right to bring a common law negligence action against the employer and in return received automatic guaranteed medical and wage benefits. The employer gave up the common law defenses and received reduced exposure to liability. Thus, under section 11 of the Workers’ Compensation Act “[ejvery employer ... shall pay ... compensation ... for the disability or death of an employee arising out of and in the course of employment without regard to fault.” That section, however, also enumerates certain exceptions to the Act based on an employee’s (1) willful injury to self or another, (2) failure to use a guard or protection furnished against accident, (3) substance abuse, or (4) horseplay.

¶21 These statutory exceptions to workers’ compensation coverage for an employee’s willful misconduct must be factored into any balancing of interests between employer and employee. These legislative adjustments to the no-fault aspect of workers’ compensation, which favor the employer, require that a less stringent standard than “specific intent” be applied in determining whether an employee may recover damages, as opposed to benefits, as a result of the employer’s intentional misconduct. The substantial certainty standard strikes the proper balance by emphasizing employees’ interest in protection from employer misconduct while maintaining employers’ fixed liability for all but intentional workplace injuries.

¶ 22 Another policy consideration, that of workplace safety, has been and remains an important objective of workers’ compensation. Few would argue that mere neglect of employee safety should not come exclusively within the purview of workers’ compensation. At the same time, most would agree that an employer’s specific intent to cause injury is beyond the scope of workers’ compensation. But, as one treatise notes:

The difficult case lies in between: where the employer [is] ... not motivated by a desire to harm employees, but certainly tak[es] a calculated risk with their lives and safety — and perhaps tak[es] all the greater risk because the employer knows that when injury inevitably does occur, the cost will be less because of the exclusive remedy and limited compensation provisions of the workers’ compensation act.

7 Causes of Action 2d 197, § 2 at 204. This Court concurs in the observation of the Michigan Supreme Court. “The problem with the true intentional tort test appears to be that it allows employers to injure and even kill employees and suffer only workers’ compensation damages so long as the employer did not specifically intend to hurt the worker.” Beauchamp v. Dow Chem. Co., 427 Mich. 1, 398 N.W.2d 882, 893 (1986)(adopting the “substantial certainty” standard). The conclusion of the North Carolina Supreme Court succinctly states the rationale behind today’s holding. “The substantial certainty standard satisfies the Act’s purposes of providing trade-offs to competing interests and balancing these interests, while serving as a deterrent to intentional wrongdoing and promoting safety in the workplace.” Woodson, 407 S.E.2d at 229. Today, Oklahoma joins those jurisdictions which have rejected the proposition that the specific intent to harm is required for an employer’s conduct to be actionable in tort.

PARAMETERS OF THE STANDARD

¶ 23 In adopting the “substantial certainty” standard, this Court is mindful that “[i]n applying the substantial certainty test, some courts have confused intentional, reckless, and even negligent misconduct, and therefore blurred the line between intentional and accidental injuries.” Beauchamp, 898 N.W.2d at 893. In a determined effort to prevent such confusion, the standard must be clearly articulated and its parameters defined.

¶24 In order for an employer’s conduct to amount to an intentional tort, the employer must have (1) desired to bring about the worker’s injury or (2) acted with the knowledge that such injury was substantially certain to result from the employer’s conduct. Under the second part of this standard, the employer must have intended the act that caused the injury with knowledge that the injury was substantially certain to follow. The issue is not merely whether injury was substantially certain to occur, but whether the employer knew it was substantially certain to occur. The employer’s subjective appreciation of the substantial certainty of injury must be demonstrated. In most cases, however, it will be necessary to demonstrate the employer’s subjective realization by circumstantial evidence. Thus, an employer’s knowledge may be inferred from the employer’s conduct and all the surrounding circumstances.

1125 To satisfy the “substantial certainty” standard, “more than knowledge and appreciation of the risk is necessary.” Id. As Professor Prosser explains:

[T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classified as an intentional wrong.

Prosser, § 8 at 32. Thus, the employer must have acted, or have failed to act, with the knowledge that injury was substantially certain, not merely likely, to occur. The employer must have knowledge of more than “foreseeable risk,” more than “high probability,” and more than “substantial likelihood.” Nothing short of the employer’s knowledge of the “substantial certainty” of injury will remove the injured worker’s claim from the exclusive remedy provision of the Workers’ Compensation Act, thus allowing the worker to proceed in district court.

¶26 Mere allegations of intentional conduct will not circumvent the Workers’ Compensation Act. The worker must allege facts which “plausibly demonstrate” that the employer’s conduct was intentional under the “substantial certainty” standard. Ham, 506 N.W.2d at 95. “In terms of intentional tort then, the üse of the word ‘intent’ in allegations ‘is not a talisman that can change the allegations into colorable claims Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368, 375 (1985)(quoting Keating v. Shell Chem. Co., 610 F.2d 328, 332 (5th Cir.1980)).

¶ 27 This pronouncement is not intended to expand the narrow intentional tort exception to workers’ compensation exclusivity.³ Rather, it constitutes this Court’s refusal to apply a stricter standard of intent to a worker’s tort claim against the employer than the Restatement standard of intent which would be applied to any other intentional tort. By adopting the “substantial certainty” standard in workers’ compensation, this Court furthers the workers’ compensation objective of workplace safety while balancing the interests of employer and employee. At the same time, it furthers the general tort principle that injuries are to be compensated and antisocial behavior is to be discouraged.” See Prosser, § 1 at 3.

QUESTION TWO

¶ 28 The second question certified to this Court concerns an aspect of the test for determining statutory employer status under the Workers’ Compensation Act. Under section 11(B)(1) of the Act, “the principal employer shall also be hable in the manner hereinafter specified for compensation due all direct employees, employees of the independent contractors, subcontractors, or other employees engaged in the general employer’s business.” As a result, under section 12, “[t]ort immunity is afforded to principal employers who bear workers’ compensation liability under section 11.” Armstrong v. Carr, 2003 OK CIV APP 80, 77 P.3d 598, 601. A principal employer who is secondarily liable in workers’ compensation has been termed a “statutory employer.” The principal employer’s workers’ compensation liability and the corresponding tort immunity have been the subject of much litigation. See Murphy v. Chickasha Mobile Homes, Inc., 1980 OK 75, 611 P.2d 243, 245-248 (describing evolution of this area of law in Oklahoma).

¶ 29 In Bradley v. Clark, 1990 OK 73, 804 P.2d 425, this Court adopted a three-tiered test to determine whether a statutory employment relationship exists. The test was crafted by the Louisiana Supreme Court in Berry v. Holston Well Service, Inc., 488 So.2d 934 (La.1986). The first tier of the test asks whether the contract work is specialized or non-specialized. If the work is non-specialized, the second tier asks whether the contract work is part of the principal’s trade, business, or occupation. Id. at 938. “The third and last tier of the ... analysis calls upon the court to determine whether the principal hirer was engaged, at the time of the injury, in the trade, business or occupation of the hired contractor.” Bradley, 804 P.2d at 428 n. 10. The certified question concerns only the third tier of the test.

¶ 30 Bridgestone manufactures and distributes toes. It has facilities in the United States, Canada, Mexico, and Costa Rica. Bridgestone hired UNICCO, an independent contractor, to provide a wide range of maintenance services at its tire plant in Oklahoma City. The question for the federal court is whether Bridgestone was engaged in the trade, business, or occupation of UNICCO at the time of the worker’s electrocution. The federal court asks this Court whether, in making that determination, only Bridge-stone’s tire plant in Oklahoma is to be considered or whether it is proper to consider all of Bridgestone’s facilities, including those in other states and nations.

¶ 31 The question is resolved by an examination of the policy behind this Court’s adoption of the test. This Court adopted the Berry test in Bradley because it favored “Louisiana’s more restrictive approach” to “application of the double-coverage doctrine.” Bradley, 804 P.2d at 428 & n. 10. In Berry, the Louisiana Supreme Court explained that a liberal and expansive application of statutory employer status had “transform[ed] a doctrine which was originally designed to provide secondary [workers’ compensation] protection to an injured employee into one which grants [tort] immunity to principals regardless of whether they actually pay compensation.” 488 So.2d at 937 (citation omitted). The Ben-y court further explained that “[a]s a result, principals have been elevated to a more preferred position than an injured employee’s immediate employer in that the quid pro quo existing between the employee and his immediate employer (i.e. compensation regardless of fault for tort immunity) does not exist between the employee and the principal.” Id. Thus, the stated purpose of the Berry test and of this Court’s adoption of that test in Bradley, was to restrict application of statutory employer status.⁴

¶ 32 Nevertheless, Bridgestone asks this Court to hold that, in applying the third tier of the test for statutory employer status, the federal court should look at its entire enterprise, including its activities in other states and nations. To do so, however, would expand the application of statutory employer status in contravention of Bradley’s stated purpose. This Court holds that for the purpose of the third tier of the test adopted in Bradley, only the principal’s activities at its facilities within the State of Oklahoma are to be considered.

¶ 33 Other policy considerations lead to the same conclusion. No policy is served by providing preferential treatment to large corporations with widely diversified activities in various nations while a local employer engaged in the same business has only its activities in Oklahoma to consider in determining statutory employer status. Public policy requires that local and multinational employers be treated equally in applying the provisions of the Workers’ Compensation Act.

¶ 34 Finally, as a practical matter, the scope of the inquiry into the principal employer’s activities becomes overly broad and difficult to manage when facilities in other states and nations are at issue. Discovery becomes needlessly burdensome. The manner in which an employer chooses to structure its activities in other states and nations will not be considered relevant to statutory employer status in Oklahoma.

CERTIFIED QUESTIONS ANSWERED.

WATT, C.J., HARGRAVE, KAUGER, EDMONDSON, TAYLOR, JJ., concur. WINCHESTER, V.C.J., LAVENDER and OP ALA, JJ., dissent.

1 . Section 5 of title 25 provides: "There are three degrees of negligence, namely, slight, ordinary and gross. The latter includes the former.” Section 6 of title 25 provides: "Slight negligence consists in the want of great care and diligence; ordinary negligence in the want of ordinary care and diligence; and gross negligence in the want of slight care and diligence.”

2 . As Professor Prosser explains:

to this area ["quasi intent”] the words "wilful,” "wanton," or "reckless,” are customarily applied; and sometimes, in a single sentence, all three. Although efforts have been made to distinguish them, in practice all such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming oat at the same legal exit. They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care.

Prosser, § 34, at 184 (footnote omitted).

3 . Professor Larson, a strident critic of the "substantial certainty” standard, concedes that "[i]t is true that in most instances, the predicted flood of litigation has not occurred, mainly because the courts, undoubtedly conscious of the dangers, have been quite conservative about allowing these kinds of exceptions to exclusivity. Most have been careful to limit their use to the most egregious cases.” Larson, at § 103.04[4].

4 . The Louisiana Legislature rejected the Berry test by amending its "statutory employer” provision. The test, however, retains its vigor in Oklahoma. See Armstrong, 77 P.3d at 602 n. 2.