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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