Serna v. Statewide Contractors, Inc
In Serna v. Statewide Contractors, Inc., 6 Ariz. App. 12, 429 P.2d 504 (1967), two employees were killed after a ditch collapsed.
The workers' families sued the employer for wrongful death, alleging that the deaths were the result of the employer's wilful misconduct under 23-1022 and, therefore, that workers' compensation was not the exclusive remedy for their claims.
The trial court granted summary judgment in favor of the employer, and Division One of this court affirmed, even though the facts showed that the ditch was twenty-five feet deep and insufficiently sloped or shored to prevent a cave-in.
Indeed, a previous cave-in had buried one of the decedents to his waist.
And, there was no safety ladder near the men at the place in the ditch where they had been digging.
Moreover, before the accident, state industrial commission inspectors had warned the employer of the very conditions that caused the deaths and had recommended corrective measures.
And although Division One stated that it had "no difficulty in finding that the cave-in causing the deaths of the decedents was the direct result of the refusal to follow the safety recommendations of the Commission's inspectors, "the court concluded: It would appear that our statute as well as the principles governing the interpretation of the workmen's compensation statutes which provide for suit at common law for the employer's willful misconduct require that there be deliberate intention as distinguished from some kind of intention presumed from gross negligence. 2 Larson, Workmen's Compensation Law, Sec. 69. 20 (1961).
The Arizona statute is most restrictive in this regard. It is the opinion of this Court that the facts presented on review, viewed in the light most favorable to the plaintiff-employees, clearly establish the negligence of the defendant-employer but fail to establish that the employer, through its elected officer, acted with the intent required by our statute. A.R.S. 23-1022. ...We must regretfully state that under our statutes the facts do not bring appellants within the exception of A.R.S. 23-1022. Serna, 6 Ariz. App. at 16, 429 P.2d at 508.