Helf v. Chevron

2009 UT 11
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Jenna R. Helf, 	No. 20061170
Plaintiff and Appellant,
v.
Chevron U.S.A., Inc., a Delaware
corporation; Continental Petroleum
Services, a Utah limited
liability company; Skip Ferguson,
an individual; Ondeo Nalco Company, 	F I L E D
a Delaware Corporation; and Does I-X,
Defendant and Appellee. 	February 13, 2009
---
Third District, Salt Lake
The Honorable Judge Anthony B. Quinn
No. 030901338
Attorneys: 	Edward P. Moriarity, Salt Lake City, Shandar S.
Badaruddin, Jacque M. Ramos, Missoula, MT, for
appellant
E. Scott Savage, Stephen R. Waldron, Susan E.
Baird, Salt Lake City, for appellee
---
PARRISH, Justice:
INTRODUCTION
¶1 	Jenna Helf (“Helf”) sued Chevron U.S.A., Inc.
(“Chevron”), for injuries she sustained while working at the Salt
Lake City Refinery (the “Refinery”). 	Helf’s complaint alleges
that her injuries were caused by a chemical reaction that
occurred when her supervisors directed her to neutralize toxic
sludge through a chemical reaction in an open-air pit. 	She
further alleges that another Chevron employee initiated an
identical reaction in the same open-air pit, just hours prior to
her injury, creating a large purple cloud that set off chemical
alarms as it drifted across the Refinery. 	As a result of the
reaction, several workers were sent home due to illness. 	But

1 Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997)
(internal quotation marks omitted).
No. 20061170 	2
Helf’s supervisors neither warned her about the earlier incident
nor instructed her that she would need special respiratory
protection. 	Because of her exposure to the toxic gases, Helf now
suffers from a permanent seizure disorder. 	Helf sued Chevron for
damages, arguing that her injuries fall within the intentional
injury exception to the Workers’ Compensation Act. 	The gravamen
of Helf’s complaint is that her supervisors directed her to
initiate a chemical process that they knew, with substantial
certainty, would result in the same dangerous conditions that
occurred earlier that day and would injure whoever initiated the
chemical reaction.
¶2 	The district court dismissed Helf’s complaint against
Chevron without leave to amend pursuant to rule 12(b)(6) of the
Utah Rules of Civil Procedure. 	We reverse the district court’s
dismissal because Helf’s complaint successfully alleged facts
demonstrating that her injury was the expected result of re-
initiating the neutralization process such that her injury was
intentional, not accidental or negligent. 	We reaffirm the
“intent to injure” standard as the test for distinguishing
between intentional and negligent or accidental injuries, but we
caution courts to retain the distinction between intent and
motive or probability when applying the test.
BACKGROUND
¶3 	When reviewing a grant of a 12(b)(6) motion to dismiss,
“we accept the factual allegations in the complaint as true and
consider them and all reasonable inferences to be drawn from them
in a light most favorable to the plaintiff.” 1 	We recite the
facts accordingly.
¶4 	As part of the refining process, Chevron uses a caustic
that is stored in tanks on the premises of the Refinery. 	Once
the caustic has been used, it becomes “spent caustic,” which must
be removed from the tanks and the tanks must be cleaned. 	The
resulting product is called “spent toxic sludge,” an
ultrahazardous substance that must be neutralized before it can
be safely disposed of. 	In order to neutralize the spent caustic
sludge, highly reactive acids are added, causing intense and
violent reactions and creating ultrahazardous vapors known to
cause serious and permanent injury to humans who breathe them.
¶5 	Before Helf’s injury, Chevron’s standard method of
removing and neutralizing the spent caustic sludge was to remove

3 	No. 20061170
the tanks and their hazardous contents from the Refinery and to
clean them under carefully controlled and restricted conditions.
Using this method, Chevron employees were not exposed to the
hazardous sludge or the vapors created during the cleaning
process. 	The problem with this method was that it cost
approximately $40,000 per tank.
¶6 	On at least one occasion prior to the events giving
rise to this case, Chevron attempted to clean a tank containing
spent caustic sludge on the premises by using a vacuum truck.
However, the resulting chemical reaction endangered everyone
involved by releasing intense heat and noxious vapors.
¶7 	In January 1999, Chevron officials “pushed” to clean a
particular tank containing spent caustic sludge. 	Before deciding
what to do with the sludge, Chevron ran a laboratory test on it.
The results indicated that the sludge was very basic, with a pH
of 14.0, and that its sulfidic character was too high to measure.
Rather than following its standard practice of sending the sludge
away for treatment in a controlled environment, Chevron decided
to try neutralizing the sludge in an “open-air pit” on the
Refinery premises. 	The process involves pumping the spent
caustic sludge into a pit, adding sulfuric acid in order to
neutralize the basic character of the sludge, and “air rolling”
the mixture with compressed air to induce a more complete and
intense chemical reaction. 	Several experienced Chevron
supervisors expressed reservations about the open-air
neutralization method; nevertheless, Helf’s supervisor ordered
her to proceed neutralizing the caustic sludge in the open-air
pit. 	Helf alleges that before initiating this process, all the
parties in supervisory positions knew or should have known that
the process would create noxious, dangerous, and harmful vapors.
She further alleges that the process violated several state and
federal rules and regulations.
¶8 	The neutralization process was first initiated in the
open-air pit during the day shift on January 28, 1999. 	When the
neutralization process began, the sulfuric acid reacted with the
spent caustic sludge and released a noxious purple cloud
containing concentrated hydrogen sulfide, mercaptan gases, and
other toxic chemical compounds. 	The neutralization process was
stopped immediately after the toxic purple cloud appeared. 	The
cloud drifted across the Refinery, setting off alarms and causing
several Chevron employees, some of whom were hundreds of yards
from the open-air pit, to fall ill and be sent home. 	In the
aftermath, Chevron did not take any safety measures, such as
locking out the sulfuric acid or pumping out the open-air pit.

No. 20061170 	4
Instead, Chevron decided to resume the process later in the
evening after a shift change and under cover of night.
¶9 	When Helf arrived to work for the evening shift, her
supervisor directed her to go to the open-air pit and start the
neutralization process. 	She was not told about the earlier
reaction, nor was she told about the hazardous conditions
indicated by the plant alarms or about the employees that were
sent home due to illness from exposure to the gases created by
the reaction. 	She was also not instructed that she would need
respiratory protection for this job, despite the fact that her
supervisors knew that injury was substantially certain to occur
if she initiated the chemical reaction without respiratory
protection.
¶10 	Helf followed the instructions given to her by her
supervisor. 	The neutralization process produced the same
predictable and violent reaction that occurred earlier that
day--the release of a purple cloud containing noxious gases. 	The
gases caused Helf to vomit and pass out. 	When she eventually
came to, she stopped the process and returned to the building,
suffering severe effects of exposure to high levels of
hydrochloric acid, free mercaptans, and other toxic gases. 	She
was not provided with any treatment or information about the
chemicals to which she had been exposed. 	The Occupational Health
and Safety Division of the Utah Labor Commission eventually cited
Chevron for these events.
¶11 	The Utah Labor Commission concluded that, as a result
of this incident, Helf developed the following medical
conditions: 	complex partial seizures, headaches, eye irritation,
a twitching eyelid, nausea and vomiting, lethargy and weakness of
extremities, disorientation, and mucous membrane irritation.
Helf received $7,880.37 for her temporary, total disability
during the time that she was unable to work due to her injuries.
The Labor Commission also ordered that Chevron pay medical
expenses for her treatment.
¶12 	Based on the facts recited above, Helf filed a
complaint with the district court requesting damages for the
permanent and life-altering injuries she sustained due to her
exposure to the noxious gases. 	In the complaint, she accused
Chevron (and four other parties not relevant to this appeal) of
willful misconduct, intentional nonfeasance, negligent infliction
of emotional distress, and intentional infliction of emotional
distress.

2 Utah Code Ann. § 34A-2-105 (2005).
3 Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 8,
104 P.3d 1226 (internal quotation marks omitted).
4 Alvarez v. Galetka, 933 P.2d 987, 989 (Utah 1997)
(internal quotation marks omitted).
5 	Id. (internal quotation marks omitted).
5 	No. 20061170
¶13 	Chevron filed a motion to dismiss Helf’s claims
pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure,
arguing that the exclusive remedy provision of the Workers’
Compensation Act 2 barred her claim. 	Without offering any
rationale, the district court granted Chevron’s motion and
dismissed Helf’s claims against Chevron with prejudice and
without leave to amend. 	Helf pursued her claims against the
remaining defendants. 	Following the district court’s entry of a
final order regarding the remaining claims, Helf appealed
Chevron’s dismissal. 	We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j) (2008).
STANDARD OF REVIEW
¶14 	“A rule 12(b)(6) motion to dismiss admits the facts
alleged in the complaint but challenges the plaintiff’s right to
relief based on those facts.” 3 	“[T]he propriety of a 12(b)(6)
dismissal is a question of law.” 4 	Accordingly, “we give the
trial court’s ruling no deference and review it under a
correctness standard.” 5
ANALYSIS
¶15 	When the district court dismissed Helf’s claim against
Chevron with prejudice and without leave to amend, it impliedly
concluded that Helf would be unable to allege any set of facts
entitling her to relief. 	This conclusion is erroneous because
Helf’s complaint successfully pled facts that, when viewed in the
light most favorable to her, demonstrate an intent to injure on
the part of her supervisors who, regardless of their motivations,
knew or expected that she would be injured when she re-initiated
the neutralization process.
I. 	THE WORKERS’ COMPENSATION ACT AND THE INTENTIONAL INJURY
EXCEPTION
¶16 	The Workers’ Compensation Act (the “Act”) relieves
employers of any common law liability for injuries sustained by

6 Utah Code Ann. § 34A-2-105(1) (2005); see also Bryan v.
Utah Int’l, 533 P.2d 892, 893 (Utah 1975).
7 Park Utah Consol. Mines Co. v. Indus. Comm’n, 36 P.2d 979,
981 (Utah 1934).
8 Bryan, 533 P.2d at 893.
9 Shattuck-Owen v. Snowbird Corp., 2000 UT 94, ¶ 19, 16 P.3d
555 (alteration in original)(citation and internal quotation
marks omitted); see also Bryan, 533 P.2d at 893 (“The whole
thrust of the [workers’ compensation system] was to provide a
remedy for the employee, injured in an industrial accident, while
at the same time protecting the employer from disruptive or
vexatious lawsuits, because of the employer’s alleged
negligence.”).
10 Bryan, 533 P.2d at 893.
No. 20061170 	6
an employee “on account of any accident or injury or death” that
is “contracted, sustained, aggravated, or incurred by the
employee in the course of or because of or arising out of the
employee’s employment.” 6 	In place of common law remedies, the
Act creates an administrative scheme that seeks to provide a
“simple, adequate, and speedy” remedy for workers injured on the
job, 7 while also protecting employers from “disruptive or
vexatious lawsuits” for alleged negligence. 8 	We often term the
Act’s remedial scheme as a “quid pro quo” in which “employees are
able to recover for job-related injuries without showing fault
. . . and employers are protected from tort suits by employees by
virtue of the Act’s exclusive remedy provision.” 9
¶17 	The “primary objective” of workers’ compensation “has
been to remove industrial negligence, in all its forms, from the
concept of the law of tort.” 10 	To this end, the Act includes an
exclusive remedy provision, largely unaltered since 1949, that
reads as follows:
The right to recover compensation pursuant to
this chapter for injuries sustained by an
employee, whether resulting in death or not,
shall be the exclusive remedy against the
employer . . . and the liabilities of the
employer imposed by this chapter shall be in
place of any and all other civil liability
whatsoever, at common law or otherwise, to
the employee . . . on account of any accident
or injury or death, in any way contracted,

11 Utah Code Ann. § 34A-2-105(1).
12 Bryan, 533 P.2d at 894.
13 Id. at 892.
14 2005 UT 54, ¶ 22, 122 P.3d 599.
15 775 P.2d 937 (Utah Ct. App. 1989).
16 Id. at 939 (quoting Hildebrandt v. Whirlpool Corp., 364
N.W.2d 394, 396 (Minn. 1985)).
7 	No. 20061170
sustained, aggravated, or incurred by the
employee in the course of or because of or
arising out of the employee’s employment, and
no action at law may be maintained against an
employer . . . based upon any accident,
injury, or death of an employee. 11
¶18 	In Bryan v. Utah International, we recognized that the
exclusive remedy provision did not prohibit an employee from
maintaining an action for damages due to an intentional tort. 12
Accordingly, we allowed an employee to bring a tort claim against
his supervisor for injuries sustained when the supervisor
intentionally caused a large cable to hit the employee’s body. 13
This is known as the intentional injury exception.
¶19 	The scope of the intentional injury exception is at
issue in this case. 	Specifically, the parties disagree regarding
the level of intent necessary to trigger the intentional injury
exception. 	Helf urges us to adopt a standard in which intent to
injure would be imputed where an injury is “substantially
certain” to occur. 	She attributes this definition to a battery
case, Wagner v. State, in which we relied on the Second
Restatement of Torts to define the intent standard for battery. 14
On the other hand, Chevron urges us to adopt the “intent to
injure” standard, which it attributes to a court of appeals case,
Lantz v. National Semiconductor Corp. 15 	Under this standard,
Chevron would not be liable absent a “‘conscious and deliberate
intent directed to the purpose of inflicting injury.’” 16 	Using
this definition, Chevron argues that an intentional act is only
actionable if it is accompanied by an additional malicious desire
to injure.
¶20 	Both parties misunderstand the intent requirement.
Helf conflates probability with intent and Chevron conflates
motive or desire with intent. 	To clarify these

17 Bryan, 533 P.2d at 894.
18 Id.
19 823 P.2d 1055 (Utah 1991).
20 Id. at 1056.
21 Id. at 1058.
No. 20061170 	8
misunderstandings, we will first review the existing case law
that defines and applies the intentional injury exception.
Second, we will affirm the “intent to injure” standard from Lantz
and explain how it aids in distinguishing between intentional and
accidental injuries. 	We will also distinguish intent from both
motivation and probability. 	Finally, we will apply the intent to
injure standard to Helf’s case, concluding that her complaint
satisfies the “intent to injure” standard.
A. 	Existing Case Law Applying the Intentional Injury Exception
¶21 	We first turn to our existing case law. 	This court
first articulated the intentional injury exception in Bryan.
Recognizing that the Act is remedial and designed to implement a
social policy, we noted that the legislature had defined
“personal injury, by accident, [to] include injury caused by the
willful act of a third person” and that “willful” implied
“something in addition to mere negligence.” 17 	We concluded,
however, that an intentional act differed from a willful act, and
that the word intentional, “when used to describe a wrongful act
. . . [means] that the act was not only done knowingly, but with
the knowledge that it was wrongful to do it.” 18 	Thus, following
Bryan, the exclusive remedy provision barred employee suits for
injuries caused by negligent or willful acts, but not for
intentionally injurious--i.e., wrongful--acts.
¶22 	Sixteen years later, in Mounteer v. Utah Power & Light
Co., we again applied the intentional injury exception. 19
Mounteer, the plaintiff, brought suit against his employer, Utah
Power & Light Co. (“UP&L”), for injuries caused when his co-
employee called the supervisor over a loudspeaker and accused
Mounteer of being on drugs. 20 	We stated that the exclusive
remedy provision barred “any common law action against the
employer unless he or she intended or directed the injurious act
of the co-worker.” 21 	In applying this rule, we analyzed whether
UP&L ordered the broadcast, but did not analyze whether UP&L

22 Id.
23 Id.
24 775 P.2d 937.
25 Id. at 938.
26 The court of appeals cited 2A A. Larson, The Law of
Workmen’s Compensation §§ 68.13, 68.14, 68.21, 68.23 (1988).
Throughout this opinion, we rely on the more recent version, 6
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
(2000)[hereinafter Larson’s].
27 Lantz, 775 P.2d at 940.
28 Id. at 939 (quoting Hildebrandt, 364 N.W.2d at 396).
29 Id. at 940.
30 Larson’s, supra note 26, § 103.03 (“[T]he common-law
liability of the employer cannot, under the almost unanimous
(continued...)
9 	No. 20061170
ordered that the broadcast be injurious. 22 	We upheld the
dismissal of Mounteer’s suit because he had not provided evidence
that UP&L directed or intended the broadcast. 	In fact, the only
evidence provided by Mounteer was an allegation that the
broadcast violated UP&L’s company policy. 	With only this piece
of information, we reasoned that no inference could be made that
UP&L directed or intended the broadcast. 23
¶23 	During the interim between Bryan and Mounteer, the
court of appeals decided Lantz.24 	In Lantz, an employee’s
injuries from exposure to a chemical spill that occurred in his
work area were allegedly exacerbated by delayed evacuation. 25
Lantz argued that the failure to issue an evacuation order
constituted an intentional tort because injury was “substantially
certain” to result from his exposure to fumes. 	Relying almost
entirely on Larson’s treatise, The Law of Workmen’s
Compensation,26 (“Larson’s”), the court of appeals rejected this
argument. 27 	Instead, the court of appeals concluded that the
intentional injury exception only applied “in situations
characterized by ‘a conscious and deliberate intent directed to
the purpose of inflicting injury.’” 28 	This standard requires “an
injured employee to show that his employer or fellow employee
manifested a deliberate intent to injure him.” 29 	This is the
same standard adopted by a majority of jurisdictions, 30 although

30 (...continued)
rule, be stretched to include accidental injuries.”).
31 Id. § 103.04[1].
32 Lantz, 775 P.2d at 940 (emphasis removed)(internal
quotation marks omitted).
No. 20061170 	10
twelve states have recognized a broader definition of
“intentional” in order to subject some employers to liability for
gross negligence. 31
¶24 	We join the majority of states in adopting the “intent
to injure” standard in order to distinguish between intentional
injuries that fall within the intentional injury exception and
negligent or accidental injuries, which are covered by the
exclusive remedy provision of the Act.
B. 	Distinguishing Between Intentional and Accidental Injuries,
Regardless of the Actor’s Motivation
¶25 	In attempting to apply the “intent to injure” standard
the parties miss the mark by urging us to adopt or reject Lantz’s
definition of intent. 	Lantz offers only a rhetorically circular
definition of “intent” as a “conscious and deliberate intent
directed to the purpose of inflicting injury.” 32 	After reading
this definition, the question remains, what does “intent” mean?
Does it mean that the actor knew that his action would inflict
injury? 	Does it require that the actor’s motive or desire was to
inflict injury? 	What if the actor knows that his action is
likely to inflict injury, but sincerely hopes that no injury will
result? 	These questions suggest that the actor’s motive or
desire may be irrelevant to the existence of legal intent.
¶26 	Rather than defining and determining intent, the
“intent to injure” analysis focuses on whether the actor knew or
expected that injury would occur as a consequence of his actions,
thereby distinguishing between intentional and unintentional
workplace injuries under the Act. 	In clarifying and applying
this standard, we draw on the concept of an accident because it
is the antithesis of an intentional act. 	The “intent to injure”
standard is necessary because an accidental injury may result
from an intentional act, such as when an employer intentionally
pushes a barrel that accidentally hits an employee. 	We would not
say that the employer intentionally injured the employee even
though he intentionally pushed the barrel. 	On the other hand, we
would say that the employer intentionally injured the employee if
he intentionally pushed the barrel, knowing or expecting that the

33 Black’s Law Dictionary 15 (8th ed. 2004) (emphasis
added).
34 Larson’s, supra note 26, § 103.03 (emphasis added).
35 Id.
36 Id.
37 Bryan, 533 P.2d at 893.
38 Id.
11 	No. 20061170
employee was standing on the other side. 	Thus, the “intent to
injure” standard distinguishes between intentional acts resulting
in unknown or unexpected injuries, which are covered under the
Act by workers’ compensation, and intentional acts resulting in
known or expected injuries, which fall within the intentional
injury exception.
¶27 	The concept of an accident is central to the
intentional injury analysis. 	According to Black’s Law
Dictionary, an accident is an “unintended and unforeseen
injurious occurrence.” 33 	The concept of an accident is also
woven throughout Larson’s articulation of the “intent to injure”
standard. 	For example, when introducing the “intent to injure”
standard, Larson’s explains that the legal justification for the
intentional injury exception is the “nonaccidental character of
the injury.” 34 	For this reason, “the liability of the employer
cannot . . . be stretched to include accidental injuries caused
by the gross, wanton, willful, deliberate, intentional, reckless,
culpable or malicious negligence, breach of statute, or other
misconduct of the employer . . . .” 35 	Perhaps the most obvious
example demonstrating how the concept of an accident is
integrally related to the “intent to injure” standard is this
statement in Larson’s: 	“[W]hat is being tested here is not the
degree of gravity or depravity of the employer’s conduct, but
rather the narrow issue of the intentional versus the accidental
quality of the precise event producing injury.” 36
¶28 	Using the concept of an accident to distinguish between
intentional and unintentional injuries also supports the
underlying policy of the Act. 	The “primary objective” of
workers’ compensation is “to remove industrial negligence, in all
its forms, from the concept of the law of tort.” 37 	The Act’s
passage was motivated by the “inevitable increase in industrial
accidents born of the industrial revolution.” 38 	As the Michigan

39 Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 889 (Mich.
1986) (superseded by statute, Mich. Comp. Laws § 418.131 (1987)).
40 See, e.g., Richards v. Standard Accident Ins. Co., 200 P.
1017, 1023 (Utah 1921) (“An effect which is the natural and
probable consequence of an act or course of action is not an
accident . . . . 	It is either the result of actual design, or it
falls under the maxim that every man must be held to intend the
natural and probable consequence of his deeds.” (internal
quotation marks omitted)).
41 2008 UT 1, ¶ 11, 175 P.3d 566.
42 Id. (emphasis and alteration in original)(internal
quotation marks omitted); see also Kellogg v. Cal. W. States Life
Ins. Co., 201 P.2d 949, 951 (Utah 1949) (“[I]f death is an
unexpected result of an intended act it is to be considered
accidental.”).
43 N.M., 2008 UT 1, ¶ 11 n.6.
44 Id. ¶ 15.
No. 20061170 	12
Supreme Court stated, “Accidents are an inevitable part of
industrial production; intentional torts by employers are not.” 39
¶29 	Our body of case law distinguishing between accidents
and intentional injuries in the context of insurance claims is
helpful because it clarifies that an expected injury is not an
accident. 40 	In N.M. v. Daniel E., we held that to determine
whether an injury is intentional or accidental, we consider
whether “the result was intended or expected,” rather than
focusing on whether the act causing the injury was intentional. 41
Under this approach, an intentional act “may result in an
accident if the result was unexpected [and] unanticipated.” 42
The corollary to this holding is that an act is not accidental if
the result was expected and anticipated, even if the actor
subjectively hoped that injury would not occur. 	Thus, a speeding
motorist who collides with another vehicle is still involved in
an “accident” because “while the motorist did intend to exceed
the speed limit, he did not intend to cause a collision.” 43
Under this standard, intent attaches “not based on a recognition
of what possibly could happen, but rather, what probably would
happen.” 44 	Thus, under our case law, a plaintiff may
successfully plead an intentional injury by showing that the
injury was either intended or expected.

45 Lantz, 775 P.2d at 938.
46 Bryan, 533 P.2d at 892.
47 Mounteer, 823 P.2d at 1056.
13 	No. 20061170
¶30 	Although not clearly articulated in the cases, the
purpose of the “intent to injure” standard as a tool for
distinguishing between intentional and accidental or unexpected
injuries is apparent if we step back and compare Lantz to Bryan
and Mounteer. 	Lantz involved an accidental chemical spill.
There was no allegation that the chemical spill was expected or
intentional. 	Instead, Lantz alleged that because it was
“substantially certain” that he would be injured by the chemical
fumes, the refusal to issue an evacuation order was an
intentional injury. 	The facts revealed, however, that the
factory where Lantz worked had a policy allowing workers to
evacuate themselves if they felt that they were in danger, and
many of Lantz’s co-workers did so. 45 	Thus, Lantz’s intentional
injury claim boiled down to an allegation that when Lantz asked
permission to evacuate, the supervisor, who was not Lantz’s
supervisor, was negligent for failing to ascertain the danger
posed by the chemical spill that occurred in a distant part of
the factory and for assuming that Lantz would evacuate himself if
the conditions became too dangerous. 	Using the “intent to
injure” standard, the court of appeals rejected Lantz’s effort to
transform a negligence claim into an intentional injury claim.
Under the “intent to injure” standard, the supervisor would only
be liable if he knew or expected that injury would result from
his failure to evacuate and he intentionally chose not to
evacuate. 	By focusing the court’s attention on the subjective
knowledge or expectation of the actor, the “intent to injure”
standard aids in distinguishing between an intentional injury and
an accidental injury that arises from an intentional decision.
¶31 	In contrast to Lantz, the decisions in Bryan and
Mounteer addressed indisputably intentional, rather than
negligent, acts. 	Accordingly, it was not necessary to apply the
“intent to injure” test to determine whether the injury was the
product of negligence or intent. 	In Bryan, the supervisor
intentionally caused a large steel cable to hit Bryan’s body. 46
There was no allegation that the cable accidentally hit Bryan or
that the supervisor made an intentional but foolish choice,
unintentionally causing the cable to swing into Bryan’s body.
Similarly, in Mounteer, there was no allegation that the
announcement over the loudspeaker was accidental or
inadvertent. 47 	Thus, in Bryan and Mounteer, the injury-producing
activities were clearly intentional, while in Lantz, the injury-

48 Bryan, 533 P.2d at 894.
49 See, e.g., Wagner, 2005 UT 54, ¶¶ 29-32; Caudle v. Betts,
512 So. 2d 389, 391 (La. 1987) (“The intent with which tort
liability is concerned is not necessarily a hostile intent, or a
desire to do any harm. 	Rather it is an intent to bring about a
result which will invade the interests of another in a way that
the law forbids. 	The defendant may be liable although intending
nothing more than a good-natured practical joke . . . .”
(citation omitted)).
No. 20061170 	14
producing activity--the chemical spill--was an accident. 	This is
why only Lantz applied the “intent to injure” standard to
distinguish between intentional and unintentional injuries.
¶32 	We also note that the “intent to injure” standard that
we have adopted is consistent with the intentional injury
standard articulated in Bryan. 	In Bryan, we held that the
exclusive remedy clause did not insulate an employer from
liability for a “wrongful act” that was “done knowingly [and]
with the knowledge that it was wrongful to do it.” 48 	Obviously,
directing an employee to perform an act that the employer knows
or expects will result in injury is a wrongful act that is done
knowingly and with knowledge that it is wrongful. 	The “intent to
injure” standard is simply a narrower version of the Bryan
standard that we apply to determine whether the injury was the
product of intent or negligence. 	In applying the standard,
however, we caution courts to avoid two traps that could produce
an erroneous application of the “intent to injure” standard.
1. 	Maintaining the Distinction Between Intent and Motive or
Desire
¶33 	We first caution courts to maintain the distinction
between motive and the legal concept of intent. 	Distinguishing
between these concepts is difficult because intent and motive, as
used in our everyday language, are often synonymous. 	For
example, when we state, “John intentionally injured Sheila,” we
assume that John’s motivation was to injure Sheila. 	The legal
concept of intent, however, is broader than motive or desire.
Under the legal definition of intent, we would say that John
intentionally injured Sheila if he took an action that he knew or
expected would result in injury to Sheila, even if his motive for
acting was not to injure Sheila. 	For example, if John
intentionally shot a gun in Sheila’s direction, Sheila’s injury
would be intentional, even if John’s motivation was to joke
rather than to injure. 49 	Thus, the legal definition of intent
encompasses more than simply motive.

50 2001-NMCA-34, ¶ 3, 131 N.M. 272, 34 P.3d 1148.
51 Id. ¶ 4.
52 Id.
53 Id. ¶ 5.
54 Id. ¶ 18 (internal quotation marks omitted).
15 	No. 20061170
¶34 	The distinction between intent and motive is
particularly important in applying the “intent to injure”
standard because an intentional injury may arise in instances
where the employer intentionally placed an employee in harms way,
but the employer’s motive was to increase profits--not to inflict
injury. 	A tragic case from New Mexico illustrates the danger of
ignoring this distinction.
¶35 	In Delgado v. Phelps Dodge Chino, Inc., the plaintiff-
employee worked in a smelting plant that distilled copper ore
from rock by superheating the unprocessed rock to over 2000
degrees Fahrenheit. 50 	On the night of his injury, Delgado’s crew
was shorthanded and was pressured by the supervisors to work
harder in order to compensate for losses that the plant sustained
during a recent ten-day shut down. 51 	An emergency situation
arose when the processing system malfunctioned, threatening an
overflow of molten rock. 	The situation could have been safely
resolved by shutting down the furnace. 	Instead, the supervisors
directed Delgado, who had never addressed this type of emergency
situation, to go into a tunnel below the furnace and stop the
flow of molten rock. 52 	Delgado entered the tunnel and saw that
the molten rock was overflowing its container. 	He radioed his
supervisor for help, explaining that he was neither qualified nor
able to address the situation. 	His supervisor insisted that he
proceed alone. 	“Shortly after Delgado entered the tunnel, the
lights shorted out and black smoke poured from the mouth of the
tunnel. 	Delgado’s co-workers watched as he emerged from the
smoke-filled tunnel, fully engulfed in flames.” 53 	Delgado died
three weeks later.
¶36 	The New Mexico Supreme Court rejected the “intent to
injure” standard, partially based on its conclusion that the
“intent to injure” standard would allow “an employer who knows
his acts will cause certain harm or death to an employee [to]
escape personal responsibility for an act by merely claiming that
he/she hoped the employee would make it.” 54 	The court also
concluded that under an “intent to injure” standard, “[a]s long

55 Id.
56 Beauchamp, 398 N.W.2d at 895 (quoting W. Page Keeton,
Prosser and Keeton on the Law of Torts § 8 (5th ed. 1984))
(alteration in original).
No. 20061170 	16
as the employer is motivated by greed, rather than intent to
injure the worker, the employer may abuse workers in an unlimited
variety of manners while still enjoying immunity from tort
liability.” 55
¶37 	We disagree with the New Mexico Supreme Court’s
approach to the “intent to injure” standard because we believe it
conflates intent with desire or motive. 	“‘[Intent] is broader
than a desire or purpose to bring about physical results . . . .
The actor who fires a bullet into a dense crowd may fervently
pray that the bullet will hit no one, but if the actor knows that
it is unavoidable that the bullet will hit someone, the actor
intends that consequence.’” 56 	Under the “intent to injure”
standard, it does not matter whether Delgado’s supervisors sent
him into the tunnel because they wanted to maintain production
quotas, or whether they sent him into the tunnel because they
disliked him and hoped he would be injured. 	If the supervisors,
expecting injury as a consequence, chose to send an inexperienced
employee into a tunnel where molten rock was threatening to
overflow instead of shutting down the furnace, the resulting
injuries cannot be considered accidental. 	Thus, we believe that
the facts in Delgado would have satisfied the “intent to injure”
standard regardless of the supervisor’s motivation. 	Delgado also
illustrates the importance of distinguishing between “intent” and
motive or desire when applying the “intent to injure” standard.
2. 	Maintaining the Distinction Between Intent and Probability
¶38 	We also caution courts to remain cognizant of the
distinction between intent and probability. 	Helf urges us to
reject the “intent to injure” standard and instead adopt the
“substantially certain” standard, arguing that an actor need not
actually “intend harm” in order to commit an intentional tort if
harm is “substantially certain” to result. 	Helf’s primary
argument against the “intent to injure” standard is that it would
“insulate employers from the consequences of their intentional,
wrongful acts so long as the actor does not intend to bring about
the harm although it is substantially likely to occur.”
¶39 	We decline to adopt the “substantially certain” test
for two reasons. 	First, Helf fails to recognize that it is the
Act, not the “intent to injure” standard, that insulates

57 Fryer v. Krantz, 616 N.W.2d 102, 106 (internal quotation
marks omitted).
58 Id. ¶ 25.
59 Id. ¶ 13 (internal quotation marks omitted).
17 	No. 20061170
employers and fellow employees from liability for injuries or
accidents that are likely, but not certain, to occur. 	These
injuries are the product of negligence and, as such, are covered
by the exclusive remedy provision. 	Whether the social benefits
of this system outweigh the concerns articulated by Helf is a
question for the legislature.
¶40 	Second, Helf conflates probability with intent,
suggesting that intent may be imputed where a high probability of
injury exists because the employer knew that harm was
substantially likely to occur sometime to some employee.
Adopting this standard would unravel the structure of the Act.
Almost every form of employment bears some risk of injury.
Employers willing to expend the time and effort could sit down
and calculate with some specificity the number of employees
likely to be injured on the job in a year. 	In fact, these types
of calculations inform insurance decisions and OSHA regulations.
It does not make sense that a risk calculation, which is intended
to expose the likelihood of an uncertain or unexpected event,
could transform an unexpected or uncertain event (an accident)
into an intentional injury. 	Such an approach would ignore the
intent requirement altogether.
¶41 	We agree with the South Dakota Supreme Court, which has
carefully maintained the distinction between intent and
probability in intentional tort cases. 	“More than knowledge or
appreciation of risk is required to establish intentional
conduct. 	The known danger must cease to become only a
foreseeable risk which an ordinary, reasonable, prudent person
would avoid (ordinary negligence) and become a substantial
certainty.” 57 	In Fryer v. Krantz, the court concluded that an
injury was unintentional because it was “not a matter of when
[the injury] would happen (a certainty), it was a question of if
it would [happen] (a probability).” 58 	Thus, to demonstrate an
intentional injury in South Dakota, the plaintiff must show that
“the employer had actual knowledge of the dangerous condition and
that the employer still required the employee to perform.” 59
This approach maintains the distinction between intent and
probability by focusing on whether the actor knew or expected
that injury would occur to a particular employee performing a
specific task in determining whether an injury was intentional.

60 See, e.g., Padney v. Metrohealth Med. Ctr., 764 N.E.2d
492, 497-98 (Ohio Ct. App. 2001) (concluding that a directed
verdict for an employer was improper where a reasonable jury may
have found a 25-30% chance of being infected with tuberculosis
from an autopsy a “substantial certainty”); Bryant v. Lawson Milk
Co., 488 N.E.2d 934, 938 (Ohio Ct. App. 1985) (considering, as
part of the “substantial certainty” analysis, that the defendant
had experienced two hundred seventy-four robberies in its stores
over the course of five years, nine of which occurred at the
store where the plaintiff worked); Helton v. King Kwik Minit
Market, Inc., 24 Ohio Misc. 2d 34, 36 (Ct. Com. Pl. 1985)
(concluding that robbery and rape in a twenty-four hour
convenience store during late night hours was not “substantially
certain” to occur because only seven out of twelve hundred
employees had been assaulted or molested during the past five
years).
61 Fryer, 2000 SD 125, ¶ 26.
No. 20061170 	18
It does not focus on whether an injury was substantially certain
to occur to an unknown employee at some future time--an inquiry
driven by probability, not intent.
¶42 	Other courts have failed to maintain the distinction
between intent and probability. 	For example, Ohio courts
determine whether an injury is “substantially certain to occur”
in order to evaluate whether the injury is intentional and they
occasionally resort to statistics to determine the likelihood
that the injury will occur. 60 	We agree with the South Dakota
Supreme Court that such an approach “blur[s] the line between
cases involving only negligent or reckless conduct and those
involving true intent to injure.” 61
¶43 	We therefore hold that the “intent to injure” standard
requires a specific mental state in which the actor knew or
expected that injury would be the consequence of his action. 	To
demonstrate intent, a plaintiff may show that the actor desired
the consequences of his actions, or that the actor believed the
consequences were virtually certain to result. 	But a plaintiff
may not demonstrate intent by showing merely that some injury was
substantially certain to occur at some time. 	For a workplace
injury to qualify as an intentional injury under the Act, the
employer or supervisor must know or expect that the assigned task
will injure the particular employee that undertakes it. 	In other
words, the employer must know or expect that a specific employee
will be injured doing a specific task. 	In these situations, the
knowledge and expectation that injury will occur robs an injury

19 	No. 20061170
of its accidental character, moving it out of the realm of
negligence and into the realm of intent.
C. Helf’s Allegations Satisfy the “Intent to Injure” Standard
¶44 	Helf’s complaint alleges facts supporting the
conclusion that her injury was intentional, rather than
accidental, because her supervisors knew or expected that re-
initiating the neutralization process would result in her injury.
When Helf arrived at work on January 28, 1999, the neutralization
process had already been initiated once, resulting in a noxious
purple cloud that contained concentrated hydrogen sulfide,
mercaptan gases, and other toxic chemical compounds. 	As the
cloud drifted across the Refinery, it set off safety alarms and
caused employees hundreds of yards away to fall ill and be sent
home. 	Between this initial incident and Helf’s incident, no
safety measures were taken, such as pumping out the pit or
locking out the sulfuric acid. 	When Helf was directed to start
the neutralization process after she arrived at work, she was
neither warned of the earlier incident, nor instructed that she
would need protective respiratory gear.
¶45 	Furthermore, Chevron had additional knowledge regarding
the dangerousness of the caustic solution. 	Chevron knew that the
caustic sludge was extremely toxic and that the neutralizing
process produced intense and violent reactions and ultrahazardous
vapors. 	On one previous occasion, Chevron had attempted to
neutralize the caustic sludge onsite in a procedure that was more
controlled than the open-air pit technique. 	That attempt
produced large amounts of heat and noxious vapors, exposing the
employees to a great risk of injury.
¶46 	In light of the incident earlier in the day on January
28, 1999, the fact that no mitigation measures were employed to
protect Helf from the same fate, and Chevron’s knowledge, gained
through experience and expertise, of the toxic character of the
sludge, Helf’s complaint alleged facts that could convince a
reasonable jury that her injuries were the expected result of re-
initiating the neutralization process. 	Thus, Helf’s complaint
satisfies the “intent to injure” standard because it alleges that
Helf’s supervisors knew or expected that whoever re-initiated the
neutralization process in the open-air pit would be injured by
exposure to the toxic gases released by the process.

62 Clark v. Pangan, 2000 UT 37, ¶ 8, 998 P.2d 268.
63 771 P.2d 1053, 1056-57 (Utah 1989).
64 Clark, 2000 UT 37, ¶ 20 (quoting Birkner, 771 P.2d at
1057).
65 Id. ¶ 18.
66 Larson’s, supra note 26, § 103.08.
No. 20061170 	20
II. 	CHEVRON’S CORPORATE LIABILITY FOR THE ACTS OF ITS
SUPERVISORS
¶47 	Finally, Chevron’s brief raises the corporate status of
Chevron, suggesting that in order to hold Chevron liable for the
acts of Helf’s supervisors, Helf must either demonstrate that her
injury was inflicted by a supervisor who was an alter ego of
Chevron or that her injury was inflicted by a co-employee who
acted with an intent to injure and that the act was directed or
intended by Chevron. 	This suggestion is a slight
mischaracterization of the law.
¶48 	This court has long recognized the general rule that
“an employer can be held vicariously liable for the intentional
tortious acts of employees under the theory of respondent
superior if those acts are conducted within the scope of
employment.” 62 	Whether or not an action is within the scope of
employment is a factual inquiry that is evaluated under the
three-part test announced in Birkner v. Salt Lake County.63
Under this test, “the employee’s conduct must (1) ‘be of the
general kind the employee is employed to perform,’ (2) ‘occur
within the hours of the employee’s work and the ordinary spatial
boundaries of the employment,’ and (3) ‘be motivated, at least in
part, by the purpose of serving the employer’s interest.’” 64 	The
employer faces no vicarious liability if the employee “acts on
entirely personal motives unrelated to the employer’s
interests.” 65
¶49 	The rule cited by Chevron comes from specific
discussion in Larson’s about when an employer may be held liable
for a supervisor’s intentional assault on an employee. 	The
specialized rule recognizes that assaults generally do not serve
corporate interests or the employer’s interests. 66 	“Unless the
employer has commanded or expressly authorized the assault, it
cannot be said to be intentional from the employer’s standpoint
. . . [because] to the employer, it is just one more industrial
mishap in the factory of the sort the employer has a right to

67 Id. § 103.06.
68 Bryan v. Utah Int’l, 533 P.2d 892, 894 (Utah 1975).
69 Collier v. Wagner Castings Co., 408 N.E.2d 198, 203 (Ill.
1980).
21 	No. 20061170
expect to be exclusively covered by the compensation system.” 67
Helf’s injury does not fall within this specialized application
of the vicarious liability rule. 	Accordingly, Chevron’s
liability will depend on whether Helf’s supervisors were acting
within the scope of their employment when they directed her to
re-initiate the neutralization process.
CONCLUSION
¶50 	In summary, we retain the “intent to injure” standard
as a test for differentiating between intentional injuries and
injuries that are accidental or the product of negligence. 	In
order to satisfy the “intent to injure” standard, a plaintiff
must show that her injury resulted from an act that the actor
knew or expected would cause injury. 	This standard does not
require a motive to injure, but it cannot be satisfied by merely
demonstrating that there was a high probability of injury.
Helf’s complaint successfully alleges an intentional injury
because she pled facts suggesting that when her supervisors
directed her to re-initiate the neutralization process, they knew
or expected that she would be injured by the resulting noxious
gases. 	Therefore, the intentional injury exception to the Act
applies.
¶51 	This rule is consistent with the purpose and the policy
of the Act. 	It protects employees, recognizing that “[t]he
policy of our law has always been to allow one injured through
the intentional act of another, to seek redress from the one
intending harm” and that this “policy has the salutary effect of
deterring intentional injury.” 68 	And it protects employers,
insulating them from vexatious and ruinous lawsuits for
industrial accidents that are unavoidable in an industrial
society, while recognizing “that the legislature could not be
presumed to have intended to permit an intentional tortfeasor to
shift his liability to a fund paid for with premiums collected
from innocent employers.” 69
¶52 	As a result, we reverse the district court’s dismissal
of Helf’s complaint and remand for further proceedings consistent
with this opinion.

No. 20061170 	22
---
¶53 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur in Justice Parrish’s opinion.
---
WILKINS, Justice, concurring in part, and dissenting in part:
¶54 	I concur in the analysis advanced by my colleagues
regarding the application of the intentional injury exception to
the Workers’ Compensation Act. 	However, in a case such as the
one before us where the claimant-employee has elected to pursue
the benefits afforded under the Workers’ Compensation Act, I
believe doing so is an election of remedy by the claimant that
prohibits further suit against the employer under any exclusion
from the Act. 	Simply put, either a claim falls within the Act,
or it does not as a result of some exception to the Act’s
applicability. 	It cannot be both. 	If an employee injured on the
job elects to pursue the benefits of the Act, that decision
brings with it the burdens of the Act too, namely the exclusive
remedy provisions applicable to the employer. 	As a result,
although I agree the district court got the law wrong, I believe
it got the result right. 	I would affirm on that basis.
---