No. 85-259 

85-260 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BARBARA SITZLriN, 

Petitioner and Appellant, 

-vsJAKE SCHUMAKER, 

Respondent and Respondent. 

JAMES H. SITZMAN, 

Petitioner and Appellant, 

JAKE SCHUMAKER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Seventh Judicial District, 

In and for the County of Prairie, 

The Honorable R. C. McDonough, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kelly & Kelly; Patrick J. Kelly argued, Miles City, 

Monta.na 

Terry J. Hanson, Miles City, Montana 

For Respondent: 

Crowley, Haughey, Hanson, Toole & Dietrich; William 

J. Mattix argued, Billings, Montana 

Submitted: January 30, 1986 

Decided: May 15, 1986 
Mr. Justice John C. Harrison delivered the Opinion of the 

Court. 

This is an appeal from a summary judgment of the 

District Court in the Seventh Judicial District of the State 

of Montana, in and for Prairie County. We reverse and remand 

for trial. 

The plaintiff, James Sitzman, worked for the defendant, 

Jake Shumaker, performing general ranch labor. The two men 

did not get along. Shumaker often called Sitzman a 

"son-of-a-bitch" and "idiot." Sitzman did not respond to 

these names at first, but eventually began shouting back. 

The day Sitzman was injured, he and Shumaker were 

working together. Shumaker asked Sitzman if the calf feeders 

were full. Sitzman responded by telling Shumaker that the 

first one was half full, the second about three-quarters 

full, and the third one was about two-thirds full. Shumaker 

exploded, saying "I believe you, you god damn idiot. Can't 

you just say 'yes' or 'no'?" Later in the morning, Shumaker 

asked Sitzman if he wanted to work on the tractor. Sitzman 

responded, "Yeah, sure, no problem. Let's go to work on it." 

Shumaker again exploded, saying, "you god damn 

son-of-a-bitch. Why can't you just say 'yes' or 'no'?" When 

Sitzman replied, "Don't call me an s.0.b. ," Shumaker walked 

over to him and struck him several times in the face. 

Sitzman pushed Shumaker to the ground. Shumaker then picked 

up a four-foot length of two-inch pipe and held it over his 

head. Sitzman asked Shumaker not to hit him, and turned to 

walk away. Shumaker hit Sitzman on the back of the head and 

when Sitzman turned to protect himself, hit him on the front 

of the head, knocking him to the ground, unconscious. 
Sitzman suffered severe injuries, including a fractured 

skull. The extensive head injuries have altered the course 

of his life. 

Sitzman applied for and was granted temporary total 

disability wage and medical benefits under the Workers' 

Compensation Act. He brought this action in the District 

Court to recover damages caused by Shumaker's attack. His 

wife, Barbara, brought an action for loss of consortium, 

society, support, comfort and companionship of her husband 

due to his injuries. Shumaker moved for summary judgment. 

Judgment was granted in both actions for the stated 

reason that because of Sitzman's application for and receipt 

of Workers ' Compensation benefits, their remedies were 

exclusive to the Workers' Compensation Act. Upon stipulation 

of the parties, the Sitzmansl actions were consolidated for 

purpose of appeal. 

The issue presented for review by Sitzmans is whether 

receipt of Workers1 Compensation benefits by them results in 

an election pursuant to $ 39-71-411, MCA, thereby barring 

them from a common law tort action against employer Shumaker. 

Summary judgment is proper only when there is a genuine 

issue of material fact and the movant is entitled to prevail 

as a matter of law. Cereck v. Albertsonls (1981), 195 Mont. 

409, 411, 637 P.2d 509, 510. The lower court, in granting 

summary judgment, reasoned that by filing for benefits under 

the Workers' Compensation Act "Sitzman became subject to the 

provision of the Act and more specifically $ 39-71-411, MCA." 

The exclusivity clause, found in $ 39-71-411, MCA, 

provides in pertinent part: 

For all employments covered under the 

Workers' Compensation Act or for which an 

election has been made for coverage under 
+ 

this chapter, the provisions of this 

chapter are exclusive.. . . 

The election referred to in § 39-71-411, MCA, however, is the 

election to come under the Act made by an employer not 

specifically covered by the Act pursuant to 5 39-71-401 (2) , 

MCA. It has no reference to an employee seeking to recover 

for injuries suffered as a result of an assault and battery 

committed personally by the employer upon the employee who 

also may have filed for and received F70rkers1 Compensation 

benefits. 

Ordinarily, when an employee is injured in the work 

place due to negligence or accident, his remedy is exclusive 

to the Workers' Compensation Act. Noonan v. Spring Creek 

Forest Products (Mont. 1985), 700 P.2d 623, 625, 42 St.Rep. 

759, 762. Common law damages are not available under 5 

39-71-411, MCA, for injuries negligently or accidentally 

inflicted by an employer. Negligence claims should be 

dismissed on this ground. Such are not the facts in this 

case--Sitzmanls injuries are not the result of negligence or 

accident. 

The question then becomes whether there is a permissible 

exception under § 39-71-411, MCA, for the tort inflicted by 

Shumaker upon Sitzman. 

This Court has said: 

The "intentional harm" which removes an 

employer from the protection of the 

exclusivity clause of the Workers ' 

Compensation Act is such harm as is 

maliciously and specifically directed at 

an employee . . . out of which such 

specific intentional harm the employee 

receives injuries as a proximate result. 

Great Western Sugar v. District Court (1980), 188 Mont. 1, 7, 

610 P.2d 717, 720. There is evidence that Sitzman suffered. 

intentional harm maliciously and specifically directed at him 
by Shumaker. It i.s not reasonable to suppose the legislature 

intended to give statutory protection in the form of immunity 

from suit to an employer who hits his employee in the head 

with a pipe while the employee is carrying out his employment 

duties. 

The egregiousness of these circumstances removes the 

exclusivity bar for an employee. In a manner similar to 

injury by a £el-low employee, 5 39-71-413, MCA, where the 

legislature provided for coverage from an intentional injury, 

under the facts of this case, we provide for such coverage 

where the injury is by the employer. 

There are sound policy reasons for reaching this 

decision. The purpose of the Workers' Compensation Act is to 

protect both the employer and the employee by incorporating a 

quid pro quo for negligent acts by the employer. The 

employer is given immunity from suit by an employee who is 

injured on the job in return for relinquishing his common law 

defenses. The employee is assured of compensation for his 

injuries, but foregoes legal recourse against his employer. 

To allow an employer to personally commit an assault and 

battery upon an employee and hide behind the exclusivity 

clause of the Workersf Compensation Act is to disregard the 

purpose of the Act. Other employers would have to pay for 

his protection. In effect, he would have bought the right to 

hit his employees. That is not a quid pro quo. The law does 

not allow a wrongdoer to benefit from his wrongs. 

Consequently we hold that a narrow exception to the 

exclusiveness of the compensation remedy exists where the 

employer personally commits an assault and battery upon an 

employee. 
The summary judgment is reversed. and the case is 

remanded for trial consistent with the findings of this 

Court. 

We concur: /