Michael S. Michelbrink, Jr., Respondent,
The Washington State Patrol, Petitioner
Oral Argument: December 5, 2013.
Appeal from Grays Harbor County Superior Court. Docket No: 10-2-01248-2. Date filed: 09/04/2012. Judge signing: Honorable F Mark Mccauley.
Robert W. Ferguson, Attorney General, and Eric Miller, Assistant, for petitioner.
Curtis M. Janhunen (of Brown Lewis Janhunen & Spencer ), for respondent.
AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Joel Penoyar, J.P.T.
J. Robin Hunt, J.
[180 Wn.App. 658] ¶ 1 The Washington State Patrol (WSP) appeals the superior court's denial of its motion for summary judgment  against Michael S. Michelbrink Jr. in his action for deliberate intentional infliction of " certain injury"  from being shot with a Taser during WSP training. WSP argues that the superior court erred in denying its motion for summary judgment because (1) the Industrial Insurance Act (Act), Title 51 RCW, grants WSP immunity from tort liability for Michelbrink's workplace injury; (2) there was no evidence that WSP intended to cause " certain injury" ; (3) WSP neither had knowledge of nor willfully disregarded that actual injury was certain to occur; and (4) Michelbrink improperly pleaded his outrage claim and, in any event, the Act bars such a claim. Michelbrink responds [180 Wn.App. 659] that he presented a genuine issue of material fact warranting denial of summary judgment to WSP and that we improvidently granted discretionary review. Holding that Michelbrink presented a genuine issue of material fact on his claim that WSP intentionally inflicted " certain injury," we affirm the superior court's denial of WSP's motion for summary judgment and remand for trial.
A. Workplace Taser Injury
¶ 2 Michael S. Michelbrink Jr. was commissioned as a WSP trooper on March 1, 1999. In the following years, WSP researched
the use of Tasers  as a possible law enforcement tool. WSP purchased Tasers in 2006 and implemented a Taser training program for its troopers. Echoing the manufacturer's warnings, WSP's Taser training manual warns that Taser exposure may cause " cuts, bruises and abrasions caused by falling, strain related injuries from strong muscle contractions such as muscle or tendon tears, or stress fractures," and other " potential injuries." Clerk's Papers (CP) at 136.
¶ 3 On August 10, 2007, Michelbrink participated in a WSP Taser training course. At that time, Taser training was required for all troopers who opted to use a Taser on the job (WSP training materials explained to troopers why Taser exposure was mandatory and medical certification was required for all WSP troopers before Taser training). WSP had medically certified Michelbrink to be fit for duty, and [180 Wn.App. 660] he had reported no preexisting condition to WSP. WSP's Taser instructor exposed every trainee, including Michelbrink, to the Taser for one to five seconds. As WSP expected, the Taser exposure caused Michelbrink instant temporary pain, discomfort, trouble breathing, and incapacitation. Michelbrink was later diagnosed with a fracture in his vertebrae and a " bulged disc."  CP at 32.
B. Workers' Compensation Claim
¶ 4 Two weeks after the Taser incident, on August 27, 2007, Michelbrink filed a workers' compensation claim with the Department of Labor and Industries (Department), asserting that he had sustained a back injury during WSP training. The Department accepted his claim and granted him worker's compensation medical benefits; the WSP Chief approved Michelbrink's request for temporary disability leave, effective August 31, 2007, on grounds that Michelbrink was physically unable to perform his duties. While on temporary disability leave, Michelbrink received full pay and benefits; after this disability leave expired on March 1, 2008, Michelbrink used his accumulated sick leave.
¶ 5 Three and one-half months later, on June 12, Michelbrink's physician released him to work in a limited duty position for four hours per day; and WSP assigned Michelbrink to a part-time, limited duty position. On August 11, WSP extended this limited duty assignment and informed Michelbrink that he would continue to work part time until his physician determined that he was capable of returning to full-time duty. During this part-time assignment, Michelbrink applied for and received loss of earnings benefits from the Department.
[180 Wn.App. 661] ¶ 6 On January 13, 2009, after Michelbrink's physician had released him to work in a limited duty position for eight hours per day, WSP assigned Michelbrink to a temporary, full-time, limited duty position. On April 23, the WSP Chief approved Michelbrink's request for a long-term limited-duty position; WSP assigned him to be a background investigator in its Human Resources Division, where he continued to receive the same benefits and pay as other troopers. On ...