Intentional Tort Exception

The intentional tort exception is a narrow way around the workers' compensation exclusive remedy rule. In states that recognize it, a worker may sue their own employer in court if the employer intended to cause harm or, in some states, knew that injury was substantially certain to result from what it did.

Origin

Courts carved the exception out of workers' compensation statutes on the reasoning that the compensation bargain covered accidents, not deliberate wrongs. Some states later wrote their own versions into statute, and the definitions differ widely. Asbestos cases helped shape it: in the 1980s, courts in California and New Jersey allowed suits where workers alleged that the employer concealed their existing asbestos disease from them, letting it worsen.

Significance in Asbestos Context

For asbestos workers, the exception matters most when documents or testimony suggest an employer knew of the danger and hid it, for example by withholding company X-ray results that showed lung changes. In most states the bar is very high: proof that the employer knew about the hazard in general, or was careless or even grossly negligent in protecting workers, is usually not enough. Some states require proof of a specific intent to injure; others accept substantial certainty of injury; a few have statutes that spell out the elements; and some recognize a fraudulent concealment theory that focuses on hiding a diagnosis rather than on the original exposure. Where the exception applies, the employer can face the full range of tort damages rather than limited compensation benefits. Because the rules vary so much, a lawyer has to look at the specific state's statute and cases, and at what the employer actually knew and did.

Example Sentence

The family argued that the plant fell within the intentional tort exception because the company had read his chest X-rays for years, seen asbestosis developing, and never told him.

Related Terms

Exclusive Remedy, Workers’ Compensation, Fraudulent Concealment, Corporate Knowledge, Dual Capacity Doctrine, Gross Negligence, Punitive Damages

Notes

• If you had company medical exams or chest X-rays at work, request copies of those records; they can matter under this exception.
• Tell your lawyer if anyone at work said the dust was safe, or if you were never told about abnormal test results.
• This exception is hard to win in most states; it is one option to look at, not a usual path.