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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 88666
Experience:  20+ Years of Employment Law Experience
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I have a case for Intentional Tort Against the state of Hawaii

Customer Question

I have a case for Intentional Tort Against the state of Hawaii department of transportation,by whom i was employed.There defense,1.failed to state a claim against defendants which relief can be granted.My claim was that employer failed to maintain a safe work place.2.Plaintiff failed to exhaust his administrative remedies.I went through all the hearings,appeals,more hearings.the state was the one who refused to hear my case.3.If plaintiff was injured as alleged,his own conduct was the sole or contributing factor,I informed the employer the way job was being done was unsafe,employer forced me to do the job,with threat's of suspention/termination.4.claims are barred by both absolute and qualified immunity 5.actions taken by defendants were taken,made,and done in good faith for legitimate,non-discriminatory,work related reasons 6.all claims upon acts or omissions that constitute the exercise of discretionary functions are barred.7.the claims are barred by res judicata and/or collateral estoppel.8.plaintiff failed to mitigate his damages if any.I claimed spinal cord damage that left me with chronic back pain,numbness from waist down,disabled for the rest of my life.8.claims are barred by statute of limitations,i can't find where the statute is for tort,only limitations i can find are for breach of contract etc.and that is five years,if that is the case for tort november 10 will be five years.9.defendants not subjuct to punitive damages.10.doctrines of waver and estoppel bar the claims asserted by plaintiff.11.court lacks personal jurisdiction over over the defendants,I was a state employee on federal property.12claims are barred by immunities that protect public officials and employees.13.plaintiff failed to name indispensible parties,state of hawaii D.O.T. airports division, et al.14.plaintiff's injurys,if any,were caused by acts or omissions of persons other than the defendants.defendant stanly yamada was the one who was making the threts of suspention/termination if i did not do the job.15.the plaintiff lacks standing to bring this to action.I worked for the state for eight and a half years,until the day of the incident in question,now am disabled.16.plaintiffs claims are barred by exclusive remedy provision of the state of hawaii workers compensation law.from the very first day of injury my claim was denied by the state,and as you can see,still denied to even hear my case,at the hearings i was the only one in the court that was at the place of injury,my testimony was ruled out as .
Submitted: 3 years ago.
Category: Employment Law
Expert:  Law Educator, Esq. replied 3 years ago.
Correct me if I have interpreted this wrong, you filed a case for intentional tort against the state of HI for a work related injury. Was the injury caused by an intentional tortious act of a co-worker? Are you saying that because the workers compensation claim was denied because the injury did not arise out of the course and scope of your employment and as such the employer is somehow liable for some tort instead when the employer is alleging you were not in the course and scope of your employment?
Customer: replied 3 years ago.
YES ,the department head was informed that the job was not safe(dealing with six inch cast iron pipe filled with concrete.I asked for scaffolding a was told to do the job with what i have or face a ten day suspension without pay.i reported the injury to my supervisor.Workers compensation tried to claim that i ruptured my disc while brushing teeth .doctors had placed me on light duty.employer claimed that there was no light duty at the airport and sent me home.i lift and carry lots of heavy pipe,ladders,and equiptment at work the lightest of which was my tool bag that weight was about thirty pounds plus
Expert:  Law Educator, Esq. replied 3 years ago.
You have a major problem here, I was afraid of that.

Here is what the HI Supreme Court says and you would have to allege and subsequently prove willful and wanton misconduct on the part of a co worker to proceed in anything other than workers compensation:

As a general rule in Hawai'i, workers' compensation is an injured employee's exclusive remedy for an injury arising out of and in the course of employment. HRS § 386-5 provides in pertinent part that "[t]he rights and remedies herein granted to an employee or the employee's dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee[.]" Id. (emphasis added); see also Coates v. Pacific Engineering, 71 Haw. 358, 362, 791 P.2d 1257, 1259-60 (1990) ("The Hawaii State Legislature, by enacting the exclusivity provision, intended that our Workers' Compensation system be the exclusive remedy for work-related injuries and deaths." (Citation omitted.)).

HRS § 386-8, in like manner, extends immunity from suit to an injured worker's co-employees. HRS § 386-8 provides in pertinent part that:

When a work injury for which compensation is payable under this chapter has been sustained under circumstances creating in some person other than the employer or another employee of the employer acting in the course of his [or her] employment a legal liability to pay damages on account thereof, the injured employee or his [or her] dependents ... may claim compensation under this chapter and recover damages from such third person.

HRS § 386-8 also provides, however, that "[a]nother employee of the same employer shall not be relieved of his [or her] liability as a third party, if the personal injury is caused by his [or her] willful and wanton misconduct." See also Hirasa v. Burtner, 68 Haw. 22, 25, 702 P.2d 772, 775 (1985) (holding that "f HRS § 386-8 allows an injured employee to file a direct action against his [or her] co-employee for willful and wanton misconduct, then logically a third-party plaintiff who is not a co-employee should also have the right to implead the willful and wanton misconduct of the injured worker's co-employee. In both instances, the liability for injuries sustained in the accident is allegedly due to the willful and wanton misconduct of the injured worker's co-employees.").

The term "willful and wanton misconduct" is defined in pertinent part as "[c]onduct which is either intentional or committed under circumstances exhibiting a reckless disregard for the safety of others [.]" Black's Law Dictionary 1600 (6th ed.1990) (emphasis added and citation omitted). "Willful" is defined in pertinent part as "

remeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification." Id. at 1599 (emphasis added); see also Marshall v. University of Hawai'i, 9 Haw.App. 21, 36 n. 18, 821 P.2d 937, 946 n. 18 (1991) (quoting identical definition). "Wanton" is defined in pertinent part as "[r]eckless, heedless, malicious; characterized by extreme recklessness or foolhardiness; recklessly disregardful of the rights or safety of others or of consequences." Id. at 1582 (emphases added and citation omitted).

As is evident from the above-quoted definitions, the plain meaning of the term "willful and wanton misconduct" encompasses both reckless conduct that lacks a specific intent to cause injury and intentional conduct motivated by a specific intent to cause injury.



Thus, absent arguing this was willful and wanton misconduct against the supervisor and suing the supervisor for the injury, I am afraid their motion to dismiss would prevail.


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Customer: replied 3 years ago.
The supervisor did know that this job could result in an injury because of the confined space,the state workers compensation plan says that employer shall provide any and all safety equipment necessary.I asked for equipment,employer refused,Hawaii law says that they shall take all necessary precautions,and inspect that safety precautions be taken and all necessary safety equipment is supplied.no safety equipment was supplied no safety precautions were taken.workers compensation refused benefits from the very start of my claim.said it was degenerative disc disease,doctors told me a person with a manual labor job ,it's ordinary wear and tear.that's as far as workers comp. went,all they did is deny all my claims.the lawyer i had at the time didn't seem to care about my case.never called witness,doctors,didn't put much into the case.that's why I'm in district court
Expert:  Law Educator, Esq. replied 3 years ago.
The problem you have is that while the supervisor knew heavy lifting in tight spaces was involved, you need to show that was "reckless" "willful" and "wanton" in accordance with the definition provided above. This is where you have to direct your arguments in order to overcome the defendant's objection and motion to dismiss. Failure to provide the equipment is not necessarily reckless, willful and wanton and you have to raise it to that level and argue it was through the evidence. If your first lawyer did not put on much of a case and was not representing you, then you need to get a new lawyer and appeal the workers compensation claim if you still can, but you are going to have a tough road here and will have to argue intentional violation of the statute was the willful and wanton part. Not saying that you have no case, but just a very difficult one that is now going to require you to do more legal research based off of what was provided above to search case law to try to support your case that the intentional disregard of the law was willful and wanton.

The second problem you will have is if your doctors are saying this is degenerative and not caused by work, then you will need to get medical testimony that it was the work that caused the actual injury and not the degeneration.
Customer: replied 3 years ago.
I understand,this happened in 2005 the state kept the case tied up in state court over four years.the lawyer wanted $20,000 retainer to start the appeal,i haven't worked in five years because of injury ,employer terminated me because of disability . so according to what i understand the employer has all the rights and the employee has none.sorry but i refuse to be treated like a piece of garbage , when your finished just through it out.it's to late to take it to Workman's comp. I can't believe in this day and age an employer can get away with crippling a person for the rest of there life and nothing can be done about it . seems to be something wrong with the system that is only for the rich
Expert:  Law Educator, Esq. replied 3 years ago.
When workers compensation was instituted in the states making employers strictly liable for work related injuries the employee lost the right to sue the employer in tort except for willful and reckless conduct of an co-worker or intentional torts committed by a coworker. The ignoring of a safety law would arguably (by the defense) be negligent on the part of the supervisor and even grossly negligent and they will likely admit that, but gross negligence is not intentional, willful and reckless conduct. You have to overcome that in your case.

I am sorry to hear you are in this position. In addition to trying to convince the court that this was willful and reckless conduct, you need to look for a workers compensation attorney soon and try to get an appeal on the workers compensation case filed.
Customer: replied 3 years ago.
What about the statute of limitations,I was told after the last hearing that i had 120 days to file for an appeal or the case would be dismissed.I also have a list of coworkers that will testify that employer has no regard for state or federal O.S.H.A. rules and regulations.send employees into areas with asbestos with no prior warning ,without a resprator,no signage the list gos on and on. isn't that willful & reckless conduct
Expert:  Law Educator, Esq. replied 3 years ago.
You have to file within that statute of limitations yes.

You are going to have to make the argument that these violations are willful and reckless, that is an issue of fact for the court to decide. You are also going to have to prove your injury was a direct result of that conduct with medical evidence.
Law Educator, Esq., Attorney
Category: Employment Law
Satisfied Customers: 88666
Experience: 20+ Years of Employment Law Experience
Law Educator, Esq. and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
OK,I think i can prove that,the medical evidence speaks for it self,i can get a statement from the doctor to prove injury was there conduct, the state has a long list of violations.sounds like my best path is to stay on the course that I'm on,i know i have to answer this motion to dismiss with a motion of my own,try to prove that violations are willful and reckless.I would like to consult with you after i write my motion,tell me what you think? thank you for your answers thus far
Expert:  Law Educator, Esq. replied 3 years ago.
You are going to need to do some caselaw research by going to the local law library to support your contentions (the research is really outside of the scope of this service as it cost attorneys about $160 per hour for the access to databases to research cases) and you cannot just make assertions of violations without legal support for what you are saying.
Customer: replied 3 years ago.
thanks for the information,I can do some research and the violations should be a matter of public record.THANKS AGAIN , that's all i needed is a hand in the right direction.if got a long tough road ahead,can't be any tougher than learning to live your life in a whole new way.i've stuck it out this long,
Expert:  Law Educator, Esq. replied 3 years ago.
Thank you. Be patient with searching the caselaw, that is going to take you the most time and make sure you read the whole part of the case that you find that you think supports your contention and not just the one line you believe helps you because sometimes the courts say one thing in the beginning of a paragraph and then change completely in the end of the paragraph.
Customer: replied 3 years ago.
Thank you, I've found University of Hawaii Law library online,I have a lot of time
Expert:  Law Educator, Esq. replied 3 years ago.
Great. Thank you again.

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