No. 84-444 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

RAI'JDAL J. NOONAN, 

Plaintiff and Appellant, 

SPRING CREEK FOREST PRODUCTS, IPJC. , a Montana corporation, and ROBERT 

ULRICH, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moulton, Bellingham, Longo & Mather; Brent R. Cromley 

argued, Billings, Montana 

For Respondents: 

Crowley, Haughey, Hanson, Toole & Dietrich; L. Randall 

Bishop argued, Billings, Montana 

Submitted: March 28, 1985 

Decided: 24, 1985 

Filed: MAY L 3 1985 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Randal Noonan appeals an order of the Yellowstone 

County District Court granting the motion for summary judgment of Spring Creek Forest Products, Inc. The trial court's 

order effectively dismissed the employee's civil action for 

damages based on intentional tort. We affirm. 

Noonan was employed by Spring Creek as a wood planer 

operator in July of 1980. Spring Creek is a sawmill located 

near Judith Gap. This was Noonan's first full-time job as 

the nineteen-year-old had just graduated from high school. 

The employee's job required him to feed rough-cut 

lumber through a planer to be milled to the proper dimensions. On December 22, 1980, a piece of wood became stuck in 

the planer. Noonan reached in to clear the chip of wood and 

his left hand was drawn into the machine resulting in serious 

injury. 

Noonan submitted a claim for workers' compensation 

benefits which was granted. Appellant has received these 

benefits up through the present lawsuit. 

This action was filed on April 22, 1983. Noonan alleged that the injury was the result of the employer's intentional action. Appellant sets forth the following facts in 

an affidavit and deposition. 

1. The planer on which Randy Noonan was working was 

broken for approximately a month. 

2. The employer had. been requested to repair the 

planer but had failed to do so. 

3. Randy Noonan had been told by his employer not to 

turn off the planer because it would slow down production. 
4. Randy's foreman would sometimes come to work 

intoxicated and was intoxicated on the day of the accident. 

5. The owners of Spring Creek knew that Randy's foreman worked while intoxicated. 

6. No guard was on the planer. 

7. The "on" and "off" switches were mislabeled by 

Spring Creek. 

8. Randy was required to run the planer regardless of 

safety. 

9. Spring Creek knew of prior accidents on the planer 

but concealed the fact of such accidents from Randy Noonan. 

10. Spring Creek knew that it was in violation of OSHA 

Safety F-egulations. 

11. Spring Creek knew that plaintiff Randy Noonan would 

be required to retrieve pieces of wood from the planer. 

12. If the planer had not been broken, it would not 

have been necessary for Randy to retrieve wood from the 

planer and lose his hand. 

13. Spring Creek's policy was to run equipment, regardless of safety, until it broke, at which time employees would 

be laid off without pay. 

The trial court granted the employer's motion for 

summary judgment upon the grounds that there were no genuine 

issues of material fact on whether the harm suffered was 

maliciously and specifically directed at the plaintiff out of 

which such specific intentional harm the plaintiff received 

injuries as a proximate result. This language of the court's 

order is from one of our recent decisions on intentional 

torts in the workplace. Great Western Sugar Co. v. District 

Court (1980), 188 Mont. 1, 610 P.2d 717. 
A second basis for granting defendant's summary 

judgment was that Noonan had made an election of remedies by 

accepting workers' compensation benefits. 

Noonan has raised the following issues: 

I. Does a material issue of fact exist regarding the 

employer's intent to injure the employee so as to preclude 

summary judgment? 

2. Has the employee effectively elected coverage under 

the Workers' Compensation Act, thereby precluding recovery of 

damages in a civil lawsuit? 

3. Is the employee entitled to summary judgment on the 

issue of the employer's liability for the injury? 

This appeal presents a question concerning the intentional tort exception to the exclusivity provision of the 

Workers' Compensation Act. Section 39-71-411, MCA. Appellant is essentially asking this Court to broaden Montana's 

intentional tort exception and recognize what is presently 

the minority view in the United States. 

Concerning the issue of the empl-oyer's intent, Noonan 

alleges that the thirteen facts set forth above show an 

intent to injure. In his view, they show, at the least, a 

material issue of fact on the question of intent; therefore, 

summary judgment was improper. 

Noonan relies on case law from a number of jurisdictions that have recognized an intentional tort in similar 

circumstances. The leading cases have arisen in Ohio and 

West Virginia. See Jones v. VIP Development Co. (Ohio 1984), 

472 N.E. 2d 1046; Blankenship v. Cincinnati Milacron Chemicals, Inc. (Ohio 1982), 433 N.E.2d 572; Mandolidis v. Elkins 

Industries, Inc. (W. Va. 1978), 246 S.E.2d 907. What these 

cases have established is that a worker may pursue a cause of 
action alleging intentional tort without showing the employer 

had a specific intent to injure. Ohio and other jurisdictions allow these intentional tort actions to proceed where 

the employer knows or believes that harm is a "substantially 

certain" consequence of the unsafe workplace. See for example, Shearer v. Homestake Min. Co. (S.D. 1983), 557 F-S~PP. 

549. The existence of this knowledge or intent may be inferred from the employer's conduct and surrounding 

circumstances. 

Montana has chartered a course quite different from 

those states on the cutting edge of the minority trend. As 

recently as 1980 we held: 

' . . the 'intentional harm' which 

removes an employer from the protection 

of the exclusivity clause of the Workers' Compensation Act is such harm as it 

maliciously and specifically d-irected at 

an employee, or class of employee out of 

which such specific intentional harm the 

employee receives injuries as a proximate result. Any incident involving a 

lesser degree of intent or general 

degree of negligence not pointed specifically and directly at the injured 

employee is barred by the exclusivity 

clause as a basis for recovery against 

the employer outside the Workers1 Compensation Act." Great Western Sugar Co. 

v. District Court, 610 P.2d at 720. 

Great Western is arguabl-y distinguishable from the 

present case in that the injured worker there failed to 

allege intentional conduct on the part of his employer. 

Noonan, on the other hand, has clearly made the necessa.ry 

allegations in his complaint, that if supported by the facts, 

would remove the cause of action from the exclusivity provision of the Workers1 Compensation Act. 

We have reviewed each of the plaintiff's alleged facts 

set forth above and fail to discern how any of the specific 

facts could be interpreted to mean harm was specifically 
directed at Noonan. The facts do establish that the owners 

of Spring Creek operated a hazardous and dangerous workplace. 

The number of injuries that occurred among a relatively small 

number of workers provides ample support for this observation. However, to translate this situation into an inference 

of tortious intent on behalf of the employer would require a 

standard of law that this Court has thus far refused to 

adopt. 

Where an employee's allegations go no further than to 

charge an employer with knowledge of a hazardous machine, the 

complaint does not state a cause outside the purview of our 

exclusive remedy statute. In so holding we are in accord 

with several jurisdictions that have reached this question. 

Fryman v. Electric Steam Radiator Corporation (Ky. 1955), 277 

S.W.2d 25 (all-egations that metal press was defective and 

dangerous and that employer was notified of unsafe condition 

of machine by prior operators were not sufficient to state 

cause of action on theory of employer's deliberate intent to 

injure employee); Duk Hwan Chung v. Fred Meyer, Inc. (Or. 

1976), 556 P.2d 683 (employer's removal of safety switch on 

pie-cutting machine not sufficient to establish deliberate 

intent to injure employee) ; Jenkins v. Carman Mfg. Co. (Or. 

1916), 155 P. 703 (employer's knowledge of broken condition 

of a roller on a lumber conveyor, failure to repair it, and 

direction to employee to work in its vicinity did not constitute a deliberate intent to produce injury); Higley v. Weyerhaeuser Company (Wash.App. 1975) , 534 P. 2d 596 (plaintiff's 

affidavit that eye injury was caused by inadequate plexiglas 

shielding in sa.wrnill and owner's knowledge of flying cutter 

heads was not sufficient to establish deliberate intention). 
The deposition, affidavits and pleadings before the 

District Court did not raise a genuine issue of material fact 

on the question of whether Spring Creek intentionally injured 

Randal Noonan. The loh7er court was solely confronted with a 

question of law. As our discussion has indicated, the court 

correctly construed the intentional harm exception to the 

exclusivity provision of the Workers' Compensation Act. 

The summary judgment of the District Court is affirmed. 

By the nature of our decision the appellant's additional 

issues need not be reached. 

--7 

We concur: 

Justices 
Mr. Justice Frank B. Morrison, Jr. concurs as follows: 

I concur in the result but wish to add these comments. 

Justice Hunt has done an able job, in his dissent, of 

demonstrating the similarity between "intent" and "willful 

conduct". There is sufficient evidence in this record to 

allow a factual determination if we apply a "willful" 

standard. The conscious disregard of others is the type of 

conduct that rises to the level of willfulness and were we to 

adopt such a standard for Workerst Compensation purposes 

this case should be permitted to go to a jury for resolution 

of the liability and damage questions. 

I believe the legislature intended Workerst Compensation 

to be the exclusive remedy except in those situations where 

the defendant's conduct arose from specific intent rather 

than willfulness. In other words, an assault would allow a 

personal injury action. Gross negligence, such as we have 

here, would not. 

Were we to open the door for personal injury actions 

where the defendant's conduct rises to a level of gross 

negligence or willfulness, I can foresee persona1 injury 

actions in many Workers' Compensation cases. Although there 

may be a basis in sound public policy for allowing this, I do 

not believe that is what 
Mr. Justice John C. Sheehy, dissenting: 

I dissent. On April 22, 1983, Randal J. Noonan filed a 

complaint against Spring Creek Forest Products, Inc. and 

Robert Ulrich, alleging that his employer Spring Creek, and 

his foreman, Ulrich, had intentionally caused his injury in 

the workplace. Moonan demanded a jury trial. Although his 

right of trial by jury is secured to him by the Constitution 

and should remain inviolate, Article 11, Section 26, Montana 

Constitution, 1972, the effect of the decision of the 

District Court and of the majority in this case is to deprive 

Noonan of his right to a jury trial where he has presented a 

genuine issue as to a material fact. 

Noonan was injured on December 22, 1980. At 7 o'clock 

in the morning he had gone to work and at 7: 15 the injury 

occurred. He was "running 1-umber" at a planer, when a piece 

of wood became caught between two rollers. He went down to 

reach in and pull it out. The two rollers to his left were 

broke and scraping, and he had reported the broken condition 

of the rollers about a month prior but they were never fixed. 

When he put his hand in there, he was caught in the rollers 

and pulled in. The skin of his left arm was pulled off from 

his wrist to his elbow, he lost three fingers and a thumb, 

had a toe transplantation, all necessitating a severe and 

painful recovery process. 

The buttons controlling the start and stop of the planer 

were reversed, "they weren't hooked up right." Noonan 

reported that when something was wrong with the machine, "he 

ran it until it broke; you don't stop and fix." 

Noonan was not the first to be injured at the planer. 

On November 19, 1979, Neil R. Miller received a chipped bone 
in his right hand when he was removing a piece of wood from 

the planer and the roller caught his glove pulling his hand 

and arm between the rollers. Randal Noonan had earlier 

suffered a lacerated finger when he was pulling on a rope and 

slipped and struck a pulley on the planer. Robert Ulrich on 

August 12, 1980, suffered a smashed finger when he tried to 

remove a piece of wood which had been caught in the planer. 

Robert Ulrich also received a foreign body in an eye on 

September 18, 1980, when he was checking on the operation of 

the planer and a wood chip flew into his eye. Randal 

Noonan's accident happened on December 22, 1980. 

In Great Western Sugar Company v. District Court (1980), 

188 Mont. 1, 7, 610 P.2d 717, 720, this Court set out the 

test for "intentional harm" that removes an employer from the 

protection of the exclusivity clause of the Workers' 

Compensation Act, Section 39-71.-411. If the harm is 

maliciously and specifically directed at a class of employee, 

and if out of such specific intentional harm an employee is 

injured as a proximate result, the test is met. 

It should be axiomatic that the proof of malicious and 

specifically directed harm can be inferred from the facts and 

circumstances surrounding the occurrence. If that be not 

true, the only possible way for an employee to recover for an 

intentionally-caused injury from an employer would be the 

direct admission of the employer that he did in fact so 

willfully intend. Surely the law cannot be so constricted as 

to prevent a jury or other trier of fact from determining 

from all the surrounding facts and circumstances whether in 

fact the harm was malicious on the part of the employer and 

specifically directed at a class of employee working on the 

same machine. This Court has no trouble in criminal cases, 
where the proof against the defendant must be beyond a 

reasonable doubt, that his criminal intent may he inferred 

from the facts established by witnesses and the circumstances 

developed by the evidence. State v. Welling (Mont. 1982), 

647 P.2d 852, 39 St.Rep. 1215; State v. Weaver (Mont. 1981), 

637 P.2d 23, 38 St.Rep. 2050. We have stated that intent to 

injure may be presumed from acts knowingly committed. State 

v. Brown (1959), 136 Mont. 382, 351 P.2d 219. This Court has 

no trouble holding that actual fraudulent intent within the 

meaning of the Uniform Fraudulent Conveyance Act may be 

established by circumstantial evidence. Montana National 

Rank v. Michels (Mont. 1981), 631 P.2d 1260, 1263, 38 St.Rep. 

334, 337. What beguiling charm of intellect allows 

inferences to establish malicious intent in criminal cases, 

in fraudulent conveyances cases, but not in a case where a 

man's left arm is literally ripped to pieces? 

I would hold in this case that a genuine issue of 

material fact exists here as to whether the employer 

malicious1.y and specifically directed intentional harm to the 

plaintiff. A jury should decide that issue. 

From a reading of the District Court's memorandum 

granting summary judgment, I must conclude that the District 

Court was led off-base by another beguiling argument. The 

district judge principally felt that Noonan, in accepting 

Workers' Compensation benefits, had made an "election" which 

prevented him from suing the employer for intentional harm. 

In this case the insurance company which protects Spring 

Creek from tort liability is also the insurer that provides 

coverage for its Workers' Compensation cases. The insurer, 

through Missoula Service Company, on December 30, 1980, 

invited Noonan to make an industrial accident claim by 
sending him claim forms for compensation and assuring him 

that "you will receive all the benefits to which you are 

entitled according to law." 

It is not inconsistent for Noonan to be receiving 

Workers1 Compensation benefits at the same time that he is 

proceeding with his intentional harm claim against his 

employer. If he should lose the intentional harm claim, he 

is nevertheless undoubtedly entitled to Workers' Compensation 

benefits. If he should win his intentional harm claim, the 

payments provided by the employer under the Workers1 

Compensation Act would be an offset to any recover he might 

make on the intentional harm claim. Thus, the recoveries 

against the employer are merely cumulative; there is no 

inconsistency as far as Noonan is concerned, because on the 

same set of facts he is contending that an intentional harm 

occurred. 

In Massett v. Anaconda Company (Mont. 1981), 630 ~.2d 

736, 739, 38 St.Rep. 961, 964, this Court held that an 

employee's application for a 30 year pension to his employer 

did not bar his claim for disability benefits from the same 

employer. In passing we said: 

"As a legal doctrine, election is the exercise of a 

choice of an alternate and inconsistent right or 

course of action. Full knowledge of the nature of 

inconsistent rights and. the necessity of choosing 

between them are elements of the election. (Citing 

authority) (election of remedies presupposes the 

knowledge of alternatives with an opportunity for 

choice) ; (Citing authority) (in order that 

election of one remedial right shall bar another, 

the rights must be inconsistent and the election 

must be made with knowledge.) . . ." 

In other cases we have held that an election of remedy 

exists only when a remedy is pursued to a final conclusion. 

State ex rel. Crowley v. District Court, Gallatin County 

(1939), 108 Mont. 89, 88 P.2d 23. We have said that an 
apparent election made und.er a mistake as to rights is not 

binding as "election of remedies, " Rowe v. Eggum (1938) , 107 

Mont. 378, 87 P.2d 189. 

"Mere acceptance of some compensation benefits, 

then, is not enough to constitute an election. 

There must also be evidence of conscious intent to 

elect a compensation remedy and to waive his other 

rights." 2A. Larson 12-117 to 12-121, $ 67.35, 

(1983). 

In this case it is clear that the remed-ies are 

cumulative, that Noonan has not procured a final disposition 

of his Workers' Compensation claim, that he plainly has not 

waived his right to sue for the intentional harm, and the 

mere acceptance of compensa.tion does not constitute an 

election. The District Court clearly erred in giving effect 

to the doctrine of the election of remedies to grant summary 

judgment against Noonan. 

Noonan has also a.sked us on appeal to grant him summary 

judgment as to the employer's liability on his intentional 

harm case. It is true that in the District Court, Spring 

Creek did nothing to disprove the facts and circumstances 

which give rise to the inference here of intentional harm by 

the employer. Still, for the same reason that I feel that 

summary judgment should not have been granted against Noonan, 

I feel that summary judgment should not be granted. against 

Spring Creek. The issue of fact is for a trier of fact, in 

this case for the jury which was demanded. 

I would reverse and remand for trial upon the merits of 

the plaintiff's claim of intentional tort. 
Mr. Justice William E. Hunt, Sr., dissenting: 

I respectfully dissent. 

While I agree that the policy of Workers' Compensation 

is to protect the employer from employee tort action for 

injuries received during their employment, I believe there 

must be a limit on what the employee must tolerate. In my 

opinion in the case cited by the majority, for its present 

holding that the employee can not file a suit unless he can 

show that he personally was the victim of an intentional 

injury, this Court paved the way for recovery of an 

intentional tort. That case is Great Western Sugar Co. v. 

District Court (1980), 188 Mont. 1, 7, 610 ~.2d 717, 720: 

"We hold that the 'intentional harm' which removes 

an employer from the protection of the exclusivity 

clause of the Workers' Compensation Act is such 

harm as it [sic] maliciously specifically 

directed at an employee, or class of employee out 

- of which srch specific intentional - harm - the 

employee receives injuries - as - a proximate result. 

Any incident involving a lesser degree of intent or 

general degree of negligence not pointed 

specifically and directly at the injured employee 

is barred by the exclusivity clause as a basis for 

recovery against the employer outside the Workers' 

Compensation Act." (Emphasis added.) 

In the case at bar the cause of action was fully pled, 

and in my opinion well and truly established a prima facie 

case for liability. To affirm a finding that none of the 

[13] specific factual allegations could be interpreted to 

mean harm was "specifically directed" at Noonan, misses the 

point. 

The unsafe workplace existed over a protracted period of 

time, within the full knowledge of the employer, amid various 

complaints by employees and was in reckless disregard of 

their safety. Such conduct, "specifically directs the harm 

at each and every employee." 
The "intentional harm" we talked about in the Great 

Western Sugar - Co. case, supra, does not, of course, refer to 

any degrees of negligent conduct. Nor does it imply such 

conduct must go so far as to constitute conduct similar to 

that of assault. A specific intent to cause harm is not 

necessary. 

Rather, what we have here is the type of intentional 

conduct known as reckless disregard of safety. Perhaps it is 

best summed up in Restatement (Second) of Torts S 500, and 

the Special Note: 

"The actor's conduct is in reckless disregard of 

the safety of another if he does an act or 

intentionally fails to do an act which it is his 

duty to the other to do, knowing or having reason 

to know of facts which would lead a reasonable man 

to realize, not only that his conduct creates an 

unreasonable risk of physical harm to another, but 

also that such risk is substantially greater than 

that which is necessary to make his conduct 

negligent. 

"Special Note: The conduct described in this 

Section is often called 'wanton or willful 

misconduct' both in statutes and judicial opinions. 

-- On the other -- hand, this phrase is sometimes used by 

courts to refer to conduct intFnded - to cause harm 

- to another. " (~mphasis added. ) 

Comment a following the Special Note distinguishes two 

types of recklessness: 

"a. Types of reckless conduct. Recklessness may 

consist of either of two different types of 

conduct. In one the actor knows, or has reason to 

know . . . of facts which create a high degree of 

risk of physical harm to another, and deliberately 

proceeds to act, or to fail to act, in conscious 

disregard of, or indifference to, that risk. In 

the other the actor has such knowledge, or reason 

to know, of the facts, but does not realize or 

appreciate the high degree of risk involved, 

although a reasonable man in his position would do 

so. An objective standard is applied to him, and 

he is held to the realization of the aggravated 

risk which a reasonable man in his place would 

have, although he does not himself have it." 

The conduct of Spring Creek comes within the former 

type. Although reckless disregard of safety is not akin to 
the classic type of intentional tort, it nonetheless has a 

close relationship to other conduct which is intentional. 

Comment f, following the Restatement, supra, provides: 

"f. Intentional misconduct and recklessness 

contrasted. Reckless misconduct differs from 

intentional wrongdoing in a very important 

particular. While an act to be reckless must be 

intended by the actor, the actor does not intend to 

cause the harm which results from it. It is enough 

that he realizes or, from facts which he knows, 

should realize that there is a strong probability 

that harm may result, even though he hopes or even 

expects that his conduct will prove harmless. 

However, a strong probability is a different thing 

from the substantial certainty without which he 

cannot be said to intend the harm in which his act 

results. " 

Perhaps one reason the majority ruled as it did was 

because in alleging an "intentional injury," Noonan was 

inartful. He did not base his claim on an assault, or 

battery, or any of that genre of intentional tort one readily 

thinks of when "intentional" injury is alleged. Perhaps 

Noonan's complaint could have been better drafted. But the 

District Court could have, and in my opinion should have, 

discerned that Spring Creek's reckless disregard for the 

safety of its employees embodied the intent element of 

Noonan's complaint. 

The annotation in 96 A.L.R.3d 1064, et seq. (1979) 

provides an excellent discussion of the circumstances wherein 

various types of "intentional" conduct are not barred by the 

exclusive remedy provision of the Workers' Compensation Acts 

in several jurisdictions. One case cited therein, Mandolidis 

v. Elkins Industries, Inc. and also cited in the majority 

opinion, supra, should be reviewed carefully by this Court. 

That case was described as being on the "cutting edge of the 

minority trend." Most importantly, Mandolidis is not 

inconsistent with Great Western Sugar - Co. The majority 
opinion concedes it is only "arguably distinguishable." The 

distinction lies in specific intent versus reckless disregard 

for safety. The similarity, however, lies in the fact that 

the unsafe conditions were specifically directed at a class 

of employees out of which the employee received injuries. 

In my opinion, a distinction should be made between 

specific intent and reckless disregard of safety. Then, 

Noonan's allegation would present a question of fact, 

rendering summary judgment inappropriate. 

One other thing by way of clarification that I would 

like to discuss is one of the issues that was raised by 

Noonan according to the majority opinion. That issue is as 

follows: 

"Has the employee effectively elected coverage 

under the Workers' Compensation Act, thereby 

precluding recovery of damages in a civil lawsuit?" 

This question should never have been raised but since it 

has, it should be put to rest permanently. The answer to the 

question is no. If an employer has coverage, the employee is 

covered if he is injured at his place of employment and files 

a claim. This is true whether the injury is a result of an 

intentional harm or not. There is no provision in the law 

that allows an injured employee to refuse benefits of the Act 

in the unlikely event that he wanted to do so after he has 

filed a claim. Similarly, there is no provision for 

withholding benefits from an injured employee who meets the 

requirements of the Act. His benefits continue as long as he 
is entitled to them or he recovers in his tort action. In 

that case, necessary adjustments will be made to offset any 

overpayment because of Workers' Compensation benefits that 

may exist. 

I concur with the foregoing dissent of Mr. Justice William 

E. Hunt, Sr.