Date: 11-04-2013

Case Style: Mariea Anna Stevens v. Asplundh Tree Expert Co.

Case Number: CJ-2013-1281

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Michael Stephen Jones

Defendant's Attorney: Michael J. Masterson

Description: Mariea Anna Stevens sued Asplundh Tree Expert Co. on a negligence wrongful death theory claiming:

1. That during all times complained of herein, Anna Stevens was a resident of Tulsa County, State of Oklahoma. That prior to his death, Marshall Stevens was a resident of Tulsa County, State of Oklahoma and the Probate of his case is filed in Tulsa County. That during all times complained of herein, Asplundh was a registered Foreign for Profit Business Corporation providing services throughout the State of Oklahoma. Therefore, this Court has jurisdiction over the parties.

2.This action arises from the Death of James Robert Marshall Stevens (“Marshall Stevens”), an employee of Asplundh, which occurred in Tulsa County, State of Oklahoma. Therefore, venue for this Court is proper 3

3. That Anna Stevens is the Mother of Marshall Stevens and that Marshall Stevens was residing with her at the time of his Death.

4. On or about the 11 day of March 2011, Marshall Stevens, while working for Asplundh, died when he fell while working and the injuries suffered during and after the fall caused damage to his body including a sudden cardiac arrhythmia which resulted in death.

Cause of Action - Wrongful Death

5. The wrongful acts or omissions of Asplundh caused or allowed the death of Marshall Stevens to occur.

6. Marshall Stevens suffered mental pain and anguish prior to his death as a result of the wrongful acts or omissions of Asplundh.

7. The estate of Marshall Stevens has incurred medical and burial expenses.

8. As a result of Marshall Stevens’ death, Anna Stevens has suffered pecuniary loss.

9. As a result of Marshall Stevens’ death Anna Stevens has suffered grief and loss of companionship.

10. As a result of Marshall Stevens’ death, the estate of Marshall Stevens has suffered future damages and future loss of income.

11. The damages, pecuniary loss, grief, loss of companionship, future damages and other suffering resulting from the Wrongful Death caused by the wrongful acts or omissions of Asplundh have a value over Ten Thousand dollars ($10,000).

12. The wrongful acts or omissions of Asplundh, which caused or allowed the death of Marshall Stevens to occur, were made with reckless disregard and/or were intentional, malicious and/or grossly negligent, and were either made with the knowledge or disregard that their actions could cause the death suffered by Marshall Stevens.

13. As business activities that can result in an employee’s death are not in the public’s best interest, punitive damages for the sake of example and by way of punishing Asplundh should be awarded in this case.

14. A trial by jury is demanded.

15. An Attorney’s lien is claimed.

WHEREFORE, the Plaintiffs, Anna Stevens and the estate of Jason Robert Marshall Stevens, pray for judgment against the Defendant, Asplundh for a damages sum in excess of $10,000.00, Punitive Damages, costs of this action, attorney fees, and for such further relief that this court deems just.

Defendant filed a motion of dismiss claiming:

Defendant, Asplundh Tree Expert Company (“Asplundh”), pursuant to 12 O.S. § 2012(b)(6), moves the Court to dismiss Plaintiff’s, Anna Mariea Stevens (“Stevens”) Petition for failure to state a claim upon which relief may be granted. The Petition on its face is deficient in the fundamental pleading requirements, alleges an action that is specifically prohibited by 85 O.S. § 302, and is otherwise frivolous, unwarranted by existing law or by an argument for the extension, modification, or reversal of existing law 12O.S. § 2011.

INTRODUCTION

This case arises out of the death of Stevens’ son, James Robert Marshall Stevens, deceased (“Marshall”), who was killed on March 11, 2011. Stevens’ Petition alleges that while Marshall was working as a “groundsmen” for Defendant Asplundh, Marshall fell. Stevens’ Petition alleges the fall caused damage to Marshall’s body, which ultimately resulted in his death and that the wrongful acts or omissions of Asplundh caused or allowed the death of Marshall to occur. Moreover, Stevens alleges the wrongful acts or omissions of Asplundh were made with reckless disregard, were intentional, malicious, and grossly negligent and were made with knowledge or disregard that the actions could result in death.

Plaintiffs allegations fall far short of the willful, deliberate, and specfic intent to cause injury standard necessary to state an employee claim against an employer in district court and otherwise circumvent the exclusive limitations inherent in the Oklahoma Workers’ Compensation Act (“Act”). Further, Stevens fails to allege facts sufficient to avoid the “one action” rule mandated by the Act. There has been or currently is a workers compensation claim in Texas.
Therefore, the action against Asplundh should be dismissed.

ARGUMENT AND AUTHOITIES

A motion to dismiss should be granted when no set of facts support the plaintiffs claim for
relief. Gaylord Entertainment Co. v. Thompson, 1998 OK 30, ¶ 1 n. 2, 958 P.2d 128, 135. Further, a
petition may be dismissed for failure to state a claim “for lack of any cognizable legal theory or for
insufficient facts under a cognizable legal theory.” Miller v. Miller, 1998 OK 24, ¶ 15, 956 P.2d 887,
894. If the deficiency in the pleading cannot be cured, leave to amend must be denied. Gallagher v.
Enid Regional Hospital, 19950K 137, ¶ 14, 910 P.2d 984, 986.

I. STEVENS’ PETITION FAILS TO ALLEGE FACTS THAT WOULD PERMIT STEVENS TO PURSUE A CLAIM OUTSIDE THE EXCLUSIVE REMEDY OF THE ACT.

A. Liability of Employers for Workplace Injuries

The liability prescribed in the Act is “exclusive and in place of all other liability of the employer and any of his or her employees, at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any person . . . .“ 85 O.S. § 302(A) (emphasis added). Only two exceptions to the exclusitivity of the Act exist and are as follows, (1) injury as a result of an intentional tort 85 O,S. § 302(B) (“An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that such injury was substantially certain to result from the employer’s conduct shall not constitute an intentional tort. The issue of whether an act is an intentional tort shall be a question of law for the Court”); or (2) employer’s failure to secure the payment of compensation for the injured employee 85 0.5. § 302 (C). Stevens Petition fails to allege that Asplundh did not secure or maintain worker’s compensation insurance. However, Asplundh did in fact maintain worker’s compensation insurance and a worker’s compensation insurance claim was filed on behalf of James Robert Marshall Stevens, deceased in Texas. Thus, the intentional tort exception is the only possible theory at issue.

B. The Intentional Tort Exception

Prior to August 27, 2010 an employee could bring a cause of action against his employer in district court for an intentional tort if the employee could specifically allege facts that could plausibly give rise to a finding that the employer (1) desired to bring about the employee’s injury or (2) acted with knowledge that the injury was substantially certain to result from the employer’s conduct. Parret ii. UNICCO Serv. Co., 2005 OK 54, ¶ 24, 127 P.3d 572, 579.

However, effective August 27, 2010, the Oklahoma Legislature abolished the “substantial certainty” test in the context of employee suits alleging intentional acts of the employer. See 85 0.5. § 302(B) (stating that “[a]llegations or proof that the employer had knowledge that such injury was substantially certain to result from the employer’s conduct shall not constitute an intentional tort.”). Now an intentional tort exists only when the employee is “injured as a result of willful, deliberate, specific intent of the employer to cause such injury.” Id. Further, “[tihe issue of whether an act is an intentional tort shall be a question of law for the court.” Id.

C. Stevens’ Petition is Deficient

Stevens’ Petition alleges Marshall was killed on March 11, 2011 while working for Asplundh and “the wrongful acts or omissions of Asplundh caused or allowed” his death to occur. The Petition continues alleging that the wrongful acts or omissions of Asplundh “were made with reckless disregard and/or were intentional, malicious and/or grossly negligent.” Stevens’ malicious and gross negligence allegation against Asplundh is patently groundless and the allegation of wrongful acts or omissions is similarly legally flawed. Moreover, the allegation that Asplundh’s wrongful acts or omissions “were either made with the knowledge or disregard that their actions could cause the death” of Marshall does not give rise to support the claim that Asplundh’s acted intentionally. Although the Parret case and its articulation of the substantial certainty test were abrogated by the Act’s amendment, the Court’s discussion of the pleading requirement for an intentional tort claim remains valid. “Mere allegations of intentional conduct will not circumvent the Workers’ Compensation Act.” Parret, 2005 OK at ¶ 26, 127 P.3d at 579; see also Shue v. High Pressure Transps., LLC, 2010 U.S. Dist. LEXIS 123758 (N.D. Okla. 2010) (allegations that employer failed to protect employee from ultra dangerous activity does not state a claim); Hill v. United Parcel Serv. of America, Inc., 2009 U.S. Dist. LEXIS 57199, 2009 WL 1974461 (W.D. Okla. 2009) (dismissing complaint of employee who suffered stroke allegedly caused by employer who knowingly directed the employee to work in disregard of medical restrictions); Torres v. Cintas Corp., 2008 U.S. Dist. LEXIS 47377, 2009 WL 2510133 (N.D. Okla. 2008) (dismissing allegations for injuries caused by an alleged failure to train, monitor, and supervise the use of dangerous equipment); Price v. Howard, 2010 OK 26, ¶ 10, 236 P.3d 82 (plane crash in violation of flight restrictions not intentional, employer’s cognizance of high probability of injury is insufficient to impose liability). Stevens’ Petition does not allege facts sufficient to show that Marshall was injured as a result of”wiliftil, deliberate, specific intent” of Asplundh. Therefore, the action against should be dismissed.

II. A PLAINTIFF MUST CHOOSE ONE COURT TO PURSUE WORKPLACE CLAIMS AND MAY NOT BRING ACTIONS IN BOTH THE WORKERS’ COMPENSATION COURT AND THE DISTRICT COURT.

There has been or currently is a workers compensation claim in Texas. “[TIn the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either in the Workers’ Compensation Court or in the district court, but not both.” 85 O.S. § 3020) (emphasis added). Therefore, the workers’ compensation action in Texas bars Stevens from pursuing this action.

CONCLUSON

Stevens’ allegations fall far short of the willful, deliberate, and specific intent to cause injury standard necessary to state an employee claim against an employer in district court and circumvent the exclusive remedy limitations inherent in the Oklahoma Workers’ Compensation Act. Additionally, Stevens claim in district court is barred by the “one action” rule. Plaintiff has not and cannot state a claim upon which relief can be granted. Therefore, the Petition should be dismissed and as sanction the Court should issue an Order directing Plaintiff to pay Asplundh’s reasonable costs, including attorney fees, incurred and impose any other sanctions authorized by 12 0.S. § 2011(C).

Outcome: Motion to dismiss granted.

Plaintiff's Experts:

Defendant's Experts:

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