Mead v. Western Slate, Inc.

Mead v. Western Slate, Inc. (2002-544); 176 Vt. 274; 848 A.2d 257

2004 VT 11

[Filed 13-Feb-2004]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2004 VT 11

                                No. 2002-544


  Martin Mead Jr. and April Mead	         Supreme Court

                                                 On Appeal from
       v.	                                 Rutland Superior Court


  Western Slate, Inc. and 	                 November Term, 2003 
  Jeffrey N. Harrison


  William D. Cohen, J.

  Thomas W. Costello and Steven B. Wright of Thomas W. Costello, P.C.,
    Brattleboro, for Plaintiff-Appellee.	

  John Paul Faignant of Miller Faignant & Behrens, P.C., Rutland, for
    Defendant-Appellant Western Slate, Inc.

  John E. Brady and Brendan P. Donahue of Brady & Callahan, P.C.,
    Springfield, for  Defendant-Appellant Harrison.


  PRESENT:  Amestoy, C.J., Dooley, Johnson and Skoglund, JJ., and Allen, C.J.
            (Ret.),  Specially Assigned
 
   
       ¶1  JOHNSON, J.   Defendants Western Slate, Inc. and Jeffrey N.
  Harrison appeal from the denial of their post-trial motions for judgment as
  a matter of law, or in the alternative, for a new trial, following a jury
  verdict finding them liable for injuries to their employee, plaintiff
  Martin Mead, Jr., under the intentional-injury exception to the workers'
  compensation law.  Defendants contend the court erred in ruling that the
  exception could be satisfied by a showing that they knew to a "substantial
  certainty" their conduct would result in plaintiff's injury.  We conclude
  that the evidence was insufficient as a matter of law to support such a
  showing, and therefore reverse.  

       ¶  2.  Viewing the evidence in the light most favorable to the
  judgment, as we must on appeal from a denial of a motion for judgment as a
  matter of law, Brueckner v. Norwich Univ., 169 Vt. 118, 120-21, 730 A.2d 1086, 1089 (1999), the facts may be summarized as follows.  Plaintiff
  Martin Mead had worked for defendant Western Slate, Inc. as a mechanic,
  sawyer, and driller for several years prior to the accident that gave rise
  to this litigation.  He had extensive experience working in Western's slate
  quarry pit, and also had prior work experience in the quarry of another
  employer.  Defendant Jeffrey N. Harrison is the co-owner of Western.  He is
  an experienced slate quarry operator and was generally in charge of mining
  operations at the time of incident.  On the morning of August 17, 1999,
  Harrison directed plaintiff to prepare a "pillar" - or area of stone -
  below the northeastern high wall for excavation.  Plaintiff spent much of
  the day in the pit drilling holes along the butt and grain of the rock for
  the insertion of packing material and explosives.  

       ¶  3.  The next morning, plaintiff returned to the area to complete
  the drilling.  Upon arrival, however, he observed fresh debris in the area
  -  indicating a recent rock fall.  Plaintiff sent two co-workers, his
  brother Richard Mead and Leonard Andrews, to inform Harrison about the
  situation, and then commenced to complete the drilling.  Plaintiff recalled
  that when the two returned, Richard reported that Harrison had instructed
  them to load the explosives and packing material in their truck, return to
  the pit, and finish the drilling, loading, and firing.   Harrison had also
  indicated that he needed to go to the store to buy parts, and would return
  shortly to inspect the area. 
   
       ¶  4.  Mead and Andrews loaded the packing material and explosives
  in their truck as directed,  returned to the pit, and reported their
  conversation with Harrison to plaintiff.   Plaintiff then completed the
  drilling and was in the process of loading the holes with explosives when
  he was struck by a rock fall, sustaining multiple fractures and
  lacerations.   Plaintiff applied for and received workers' compensation
  benefits.  He also filed a personal injury action against Harrison and
  Western, alleging that they had committed an intentional tort by failing to
  order him to cease operations and leave the area after the initial rock
  fall, resulting in a substantial certainty of injury.  See Kittell v. Vt.
  Weatherboard, Inc., 138 Vt. 439, 441, 417 A.2d 926, 927 (1980) (workers'
  compensation provides exclusive remedy for work-related injury absent
  "specific intent to injure").  Plaintiff also sued Harrison under a
  separate co-employee claim that Harrison had committed affirmative acts of
  negligence by ordering plaintiff to work in the pit after Harrison had been
  informed of the initial rock fall.  See Gerrish v. Savard, 169 Vt. 468,
  471, 739 A.2d 1195, 1198  (1999) (workers' compensation exclusivity does
  not prohibit employee's action against co-worker for negligence outside
  parameters of employer's non-delegable duty to maintain safe workplace). 
  Plaintiff further alleged that defendants' misconduct had been willful,
  wanton, and malicious, entitling him to punitive damages. (FN1)  
   
       ¶  5.  Defendants filed motions to dismiss and for summary judgment,
  arguing that workers' compensation provided the exclusive remedy for
  plaintiff's injuries, and that the evidence was insufficient to establish
  an exception to the rule of exclusivity for intentional injury.  The court
  denied the motions.  At the close of plaintiff's case in chief, and again
  at the conclusion of all the evidence, defendants moved for judgment as a
  matter of law on the basis of workers' compensation exclusivity.  The court
  denied both motions, finding that the evidence was sufficient to raise a
  jury question as to whether defendants had knowledge to a "substantial
  certainty" that their actions would result in plaintiff's injuries. 
  Plaintiff voluntarily withdrew his separate negligence claim against
  Harrison.  Additionally, the court  ruled that the evidence was
  insufficient to submit the issue of punitive damages to the jury.     

       ¶  6.  Over objection, the court then instructed the jury that it was
  plaintiff's burden to prove that defendants had the "specific intent to
  injure him," but that such intent could be established in one of two ways:
  that defendants either "had the purpose or desire to cause him injury or
  that although the Defendants lack[ed] such purpose or desire they knew to a
  substantial certainty that their actions would bring about his injury."
  (FN2)   Later, during its deliberations the jury sent a note to the court
  stating, "we need a good detailed definition of specific intent."   After
  consulting with counsel, the court informed the jury that it had defined
  specific intent in the instructions already given, and offered no further
  definition.  
       
       ¶  7.  The jury returned a special verdict in favor of plaintiff,
  finding that although neither defendant had a specific purpose or desire to
  injure him, both knew to a substantial certainty that their actions or
  inactions would injure plaintiff.  The jury assigned separate damage awards
  to each defendant, finding Western to be liable for medical expenses of
  $3044, pain and suffering of $40,000, and lost wages of $14,176, and
  Harrison to be liable for medical expenses of $9134, and pain and suffering
  of $50,000.  The court entered a single judgment in favor of plaintiff for
  a total of $116,355.  


       ¶  8.  Defendants subsequently filed post-trial motions for judgment
  as a matter of law, or in the alternative, new trial, restating their
  contention that the court had erred as a matter of law by  allowing the
  jury to find a specific intent to injure based on a substantial certainty
  that injury would occur. Defendants also filed motions to amend the
  judgment to reflect the court's earlier determination that the judgment
  against defendants would be several and to reduce the award by the amount
  of workers' compensation benefits paid to plaintiff on defendants' behalf
  by their insurance carrier.  Plaintiff, for his part, moved to alter the
  judgment to find defendants jointly and severally liable, and also moved
  for costs and pre-judgment interest.  The court entered an order denying
  all post-judgment motions except the  request for separate verdicts and
  judgments, and issued amended judgments against Western for damages of
  $57,221 plus "plaintiff's costs of action" and against Harrison for $59,134
  plus "plaintiff's costs of action."
        
       ¶  9.  On appeal, defendants challenge the court's denial of their
  motions for judgment as a matter law, claiming principally that the court
  erred by: (1) allowing plaintiff's lawsuit to proceed after he had elected
  to apply for and receive workers' compensation benefits; and (2) departing
  from the strict definition of "specific intent to injure" set forth in
  Kittell,  138 Vt. at 441, 417 A.2d  at 927, and allowing a showing of such
  intent based on a "substantial certainty" that injury would result. 
  Plaintiff has cross-appealed, asserting that the trial court erred in
  denying the motion for joint and several liability, and that a remand is
  necessary to clarify the court's intentions concerning the award of costs. 

       ¶  10.  We turn first to defendants' contention that the court erred
  by allowing plaintiff to prove a "specific intent" to injure based on a
  showing that defendants knew to a "substantial certainty" their conduct
  would result in injury to plaintiff.   See Brueckner, 169 Vt. at 122, 730 A.2d  at 1090 (on review of motion for judgment as a matter of law, "the
  question is whether the result reached by the jury 'is sound in law on the
  evidence produced.'") (quoting Kinzer v. Degler Corp., 145 Vt. 410, 412,
  491 A.2d 1017, 1018 (1995)).  As will appear, our resolution of this issue
  renders the parties' remaining claims moot.

       ¶  11.  Subject to certain limited exceptions, Vermont's workers'
  compensation statute provides the exclusive remedy for workplace injuries. 
  21 V.S.A. § 622. (FN3)   The statute represents a "public policy compromise
  in which 'the employee gives up the right to sue the employer in tort in
  return for which the employer assumes strict liability and the obligation
  to provide a speedy and certain remedy' for work-related injuries."  Murray
  v. St. Michael's College, 164 Vt. 205, 209-210, 667 A.2d 294, 298 (1995)
  (quoting Lorrain v. Ryan, 160 Vt. 202, 214, 628 A.2d 543, 551 (1993));
  accord Gerrish, 169 Vt. at 470-71, 739 A.2d at 1197-98; Dunham v. Chase,
  165 Vt. 543, 543, 674 A.2d 1279, 1280 (1996) (mem.) ("Under the law,
  employees gain an expeditious remedy for workplace injuries without the
  burden of proving fault; in exchange, employers' liability is limited.").   
   
       ¶  12.  Like most other jurisdictions, we have recognized an
  exception to the exclusivity rule  for intentional injuries committed by
  the employer.  See Kittell, 138 Vt. at 441, 417 A.2d  at 927 (workers'
  compensation system covers workplace injuries arising by "accident," not
  those intended by the employer); Comment, Expansion of the "Deliberate
  Intention Exception" to Washington's Workers' Compensation Exclusivity:
  Following Birklid v. Boeing Co., When Does an Employer Intend Employee
  Injury?, 32 Gonz. L. Rev. 225, 232 (1997) ("most jurisdictions recognize an
  intentional tort exception to the exclusive remedy provision of its
  workers' compensation system").  We stressed in Kittell, however, that the
  policy trade-off underlying the workers' compensation law was "best served
  by allowing the remedial system which the Legislature has created a broad
  sphere of operations."  Kittell, 138 Vt. at 441, 417 A.2d  at 927.   Hence,
  we held that "nothing short of a specific intent to injure falls outside
  the scope of the Act."  Id.; accord Dunham, 165 Vt. at 544, 674 A.2d  at
  1281 ("the exclusivity provision bars any claim against an employer short
  of intentional injury").  Under Kittell, even "wilful and wanton conduct
  leading to a sudden but foreseeable injury" is within the scope of the Act.
  138 Vt. at 440, 417 A.2d  at 926.        
   
       ¶  13.   A growing number of jurisdictions have broadened the
  definition of specific intent beyond that set forth in Kittell, to include
  instances where the employer not only intends to injure the worker, but
  engages in conduct with knowledge that it  is substantially certain to
  cause injury or death.  See generally, Davis v. CMS Continental Natural
  Gas, Inc., 23 P.3d 288, 292-95 (Okla 2001) (collecting cases); M. Doran,
  The Substantial Certainty Exception to Workers' Compensation, 17 Campbell
  L. Rev. 413, 438-39 (1995) (summarizing various jurisdictions' approach to
  substantial certainty test); Annot., What Conduct is Willful, Intentional,
  or Deliberated Within Workmen's Compensation Act Provision Authorizing Tort
  Action for Such Conduct, 96 A.L.R.3d 1064 (1979 & Supp. 2003) (collecting
  and summarizing cases); A. Larson & L. Larson, 6 Larson's Workers'
  Compensation Law §§ 103.04[2][a]-103.04[2][e] at 103-12-103-20.1 (2003)
  (discussing origin and development of substantial certainty test).  On the
  continuum of tortious conduct, substantial certainty has been described as
  just below the most aggravated conduct where the actor intends to injure
  the victim; it is more than "mere knowledge and appreciation of a risk,"
  Pariseau v. Wedge Products, Inc., 522 N.E.2d 511, 514 (Ohio 1988) (quoting
  Prosser & Keeton, The Law of Torts 36 (5th ed. 1984)), "beyond gross
  negligence," Birklid v. Boeing Co., 904 P.2d 278, 284 (Wash. 1995), and
  more egregious than even "mere recklessness" in which the actor knows or
  should know that there is a strong probability that harm may result. 
  Pariseau, 522 N.E.2d  at 513 n. 1 (quoting Restatement of the Law (Second)
  Torts, § 8A cmt. b (19  )); see Restatement of the Law (Second) Torts, §
  500 cmt. f (differentiating reckless conduct, which requires "strong
  probability" of harm, from substantial certainty).  Thus, the substantial
  certainty standard has been variously described as "tantamount to an
  intentional tort," Woodson v. Rowland, 407 S.E.2d 222, 228 (N.C. 1991), a
  "surrogate state of mind for purposefully harmful conduct," Suarez v.
  Dickmont Plastics Corp., 639 A.2d 507, 518 (Conn. 1994) (Borden, J;
  concurring and dissenting), and "a substitute for a subjective desire to
  injure." Millison v. E.I. DuPont de Nemours & Co., 501 A.2d 505, 514 (N.J.
  1985).
   
       ¶  14.  The standard is not uniform.  Some states that have
  modified their specific-intent exception have opted for a stricter test
  than substantial certainty, requiring a showing of knowledge by the
  employer that injury is "certain" or "virtually certain" to occur.   See,
  e.g., Millison,  501 A.2d  at 514 (substantial certainty standard requires
  showing of "virtual certainty"); Zimmerman v. Valdak Corp., 570 N.W.2d 204,
  209 (N.D. 1997) ("An employer is deemed to have intended to injure if the
  employer had knowledge an injury was certain to occur and willfully
  disregarded that knowledge."); Fryer v. Kranz, 616 N.W.2d 102, 106 (S.D.
  2000) ("substantial certainty should be equated with virtual certainty");
  Birklid, 904 P.2d  at 285 (intentional injury "means that the employer had
  actual knowledge that an injury was certain to occur and willfully
  disregarded that knowledge").  Other states have enacted specific statutes
  codifying relatively stringent intent-to-injure exceptions in response to
  more expansive court decisions.  See, e.g., Mich. Comp. Laws § 418.131
  (intentional tort exception applies where employer "has actual knowledge
  that an injury was certain to occur and willfully disregarded that 
  knowledge," modifying Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 893
  (Mich. 1986), which adopted substantial certainty test).      

       ¶  15.  A number of state courts have also rejected invitations to
  adopt the "substantial certainty" standard, choosing instead to retain the
  strict requirement that the employer harbor "a specific intent to injure an
  employee."  Fenner v. Municipality of Anchorage, 53 P.3d 573, 577 (Alaska
  2002); see also Limanowski v. Ashland Oil Co., 655 N.E.2d 1049, 1052-53
  (Ill. App. Ct. 1995) (rejecting substantial certainty standard on ground
  that "specific intent to injure" is more consistent with purposes of
  workers' compensation statute); Davis v. United States Employers Council,
  Inc., 934 P.2d 1142, 1150 (Or. 1997) (statutory exception for "deliberate"
  injuries must be narrowly construed to require evidence the employer
  "wish[ed] to injure"); Lantz v. National Semiconductor Corp., 775 P.2d 937, 940 (Utah Ct. App. 1989) (rejecting plaintiff's argument that "knowing
  to a substantial certainty that injury will follow is sufficient to invoke
  the exception . . . to the exclusiveness of the workers' compensation
  remedy").  Courts adopting the substantial certainty standard have also
  drawn harsh criticism from some commentators for "alter[ing] the balance of
  interests within the workers' compensation system," Note, The
  Intentional-Tort Exception to the Workers' Compensation Exclusive Remedy
  Immunity Provision: Woodson v. Rowland, 70 N. C. L. Rev. 849, 880 (1992),
  employing a "vague" and "ill-defined" standard, J. Burnett, The Enigma of
  Workers' Compensation Immunity: A Call to the Legislature for a Statutorily
  Defined Intentional Tort Exception, 28 Fla. St. U. L. Rev. 491, 493, 517
  (2001), and  impinging upon the policy prerogatives of the legislative
  branch. See, e.g., Note, Ohio's "Employment Intentional Tort:" A Workers'
  Compensation Exception, Or the Creation of an Entirely New Cause of Action,
  44 Cleve. St. L. Rev. 381, 404 (1996) (courts should defer to legislature
  "to determine the appropriate standard" for intentional tort exception);
  Leftwich, supra, 70 N.C. L. Rev. at 880 (changes in "delicate balance"
  underlying workers' compensation act "should come from the legislature").
  (FN4)
     
       ¶  16.  Even those courts that have adopted the
  substantial-certainty test have stressed that it is intended to operate as
  a "very narrow exception," Suarez, 639 A.2d  at 516, intended for the most
  "egregious employer conduct," Millison, 501 A.2d  at 511, and hence is "to
  be strictly construed."  Sorban v. Sterling Eng. Corp., 830 A.2d 372, 377
  (Conn. App. Ct. 2003).  As the New Jersey Supreme Court in Millison, 501 A.2d  at 514, explained, "the dividing line between negligent or reckless
  conduct on the one hand and intentional wrong on the other must be drawn
  with caution, so that the statutory framework of the Act is not
  circumvented simply because a known risk later blossoms into reality." 
   
       ¶  17.  Turning to the case at bar, the trial court - as noted -
  concluded that our decision in Kittell did not preclude recognition of the
  substantial certainty standard, and found that the evidence adduced by
  plaintiff was sufficient to support the jury's finding based on this
  standard.  Having carefully reviewed the record evidence, however, we are
  unable to agree with the court's evidentiary analysis.   Even assuming that
  we were receptive to modifying Kittell consistent with the trial court's
  approach, and viewing the evidence in the light most favorable to the
  judgment, we do not believe that the record here  "fairly and reasonably"
  supports a rational inference that defendants knew to a substantial
  certainty their actions would result in injury to plaintiff.  Gero v. J.W.
  Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000); see also Brueckner, 169
  Vt. at 122, 730 A.2d  at 1090 (on appeal from denial of motion for judgment
  as a matter of law, "this Court . . . views the evidence in the light most
  favorable to the nonmoving party and excludes the effect of any modifying
  evidence"). (FN5)  
   
       ¶  18.  Viewed in light of this standard, the evidence shows - at
  most - that Harrison directed plaintiff and his co-workers to continue to
  work in the quarry knowing that a rock fall had recently occurred and that
  it represented a dangerous situation that required attention.  Plaintiff's
  expert, a former inspector for the federal Mine Safety and Health
  Administration, also opined that another fall was substantially certain to
  follow the first, and that allowing the drilling to proceed violated at
  least two federal safety regulations.  He offered no testimony, however,
  tying a second rock fall to any particular time-frame.  All that the
  evidence shows, therefore, is a substantial risk of second fall, but there
  is no evidence that it was substantially certain to occur within a few
  hours, or a day, or a month.  Nor was there any evidence presented of prior
  falls leading to injuries under similar circumstances at  the Western
  quarry or elsewhere within defendants' knowledge.  Thus, the evidence
  cannot support a reasonable inference that defendants knew to a substantial
  certainty that the decision directing plaintiff to continue to work until
  Harrison returned from his errand would result in plaintiff's injury. 
  Indeed, neither Harrison nor anyone else on site - including plaintiff -
  expected the accident to occur.  Even as he waited for word from Harrison
  as to how to proceed, plaintiff - an experienced quarry worker in his own
  right - voluntarily commenced to complete the drilling that he had started
  the day before, and later expressed surprise at the occurrence of the
  second fall. The evidence thus belies any rational inference that Harrison
  knew to a substantial certainty that directing plaintiff to work until he
  returned to inspect the area would result in plaintiff's injury.    

       ¶  19.  This is not a case where an employer, for example, knowingly
  orders workers to  expose themselves to dangerous fumes or toxic materials
  that are a constant and unavoidable presence in the workplace, see, e.g.,
  Millison, 501 A.2d  at 508-509, or  instructs an employee, over his
  objection and at the risk of termination if he refused, to operate a
  table-saw knowing that other employees had previously suffered injuries
  because of the lack of a safety guard which the employer had willfully
  removed to improve production speed.  Mandolis v. Elkins Indus., Inc., 246 S.E.2d 907, 914-15 (W. Va. 1978).   Here, there is little doubt that
  defendants were negligent in exposing plaintiff to the known risk of a
  subsequent rock fall, but unlike these other cases there is no evidence
  from which a jury could reasonably infer that defendants knew the injury to
  plaintiff was substantially certain to occur.  This conclusion is
  buttressed by the trial court's own ruling that plaintiff failed to adduce
  sufficient evidence to submit the question of punitive damages to the jury,
  a standard which may be satisfied either "where the defendant's wrongdoing
  has been intentional and deliberate," Bruekner, 169 Vt. at 129, 730 A.2d  at
  1095, or by "conduct showing a reckless or wanton disregard of one's
  rights."  Id. (Internal citations omitted; emphasis added).  We agree, and
  conclude, a fortiori, that the evidence also failed to demonstrate
  misconduct by defendants evidencing a knowing and willful disregard of
  risks that made injury to plaintiff a substantial certainty.  
   
       ¶  20.  While their standards may vary, decisions from other states
  that have adopted the substantial certainty test uniformly hold that the
  exception must be reserved for the exceptional case, where it can be said
  that the employee's injury - viewed in light of the risks known to the
  employer at the time - was not truly an accident.  This is not such a case. 
  We hold, therefore, that the evidence was insufficient as a matter of law
  to support the jury's finding that defendants knew to a substantial
  certainty their actions would result in injury to plaintiff.   Accordingly,
  the judgments in favor of plaintiff and against defendants must be
  reversed.  Our holding renders it unnecessary to address the parties'
  remaining claims.   
        
       Reversed.


                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Plaintiff's wife also sued for loss of consortium, but the jury
  awarded her no damages.

FN2.  The court expanded on the "substantial certainty" component as
  follows: 

    An employer cannot be held liable for accidental injuries caused
    by the gross, wanton, willful, deliberate, intentional, reckless,
    culpable or malicious negligence, breach of statute or other
    misconduct of the employer short of genuine intentional injury. 
    Regarding the second prong.  The substantial certainty test.  You
    should understand that mere risk, even a very high risk, is not
    enough to show substantial certainty.  In other words, substantial
    certainty is more than the mere possibility of substantial
    probability, but is less than actual certainty.  The intentional
    failure to furnish a safe place to work does not rise to a level
    of specific intent to injure unless the employer believes that its
    conduct is substantially certain to cause the injury. . . .  In
    considering whether Mr. Mead has met his burden on this element
    you may consider whether the defendant's conduct violated
    applicable safety regulations. . . .  Keep in mind that although
    violations of a safety regulation is relevant to whether a
    defendant acted with specific intent violations of a regulation
    without more is insufficient to support a finding of specific
    intent.

FN3.  Section 622 provides, in pertinent part, that the rights and remedies
  to which the employee is entitled under the workers' compensation statute
  "shall exclude all other rights and remedies of the employee."  Under 21
  V.S.A. § 618(a), "a worker who receives a personal injury by accident
  arising out of and in the course of employment" is entitled to
  compensation. 

FN4.  We note that despite the trial court's diligent attempt here to
  instruct on the meaning of the substantial-certainty component of the
  specific-intent-to-injure exception, see n.2, ante, the jury submitted a
  note to the court during deliberations seeking a "good detailed definition
  of specific intent."  The jury's experience here underscores the concern
  expressed by many that the "distinctions between negligence, recklessness
  and intent are subtle" and that any substantial-certainty test must be
  narrowly applied "lest the statutory framework of workers' compensation be
  circumvented."  Leftwich, supra, 70 N.C. L. Rev. at 881.

FN5.  Although defendants' principal contention below, as on appeal, was
  that the court erred in deviating from Kittell's strict intent-to-injure
  test, they also argued in their motion for judgment as a matter of law at
  the close of the evidence, and in their subsequent post-trial motion for
  judgment as a matter of law,  that the evidence was insufficient to
  establish that defendants' conduct exceeded the standard of aggravated
  negligence to the point of substantial certainty of injury.  Defendants
  relied in this regard on Reed Tool Co. v. Copelin, 689 S.W.2d 404, 407-408
  (Tex. 1985), which held that the defendant's knowing failure to maintain a
  safe workplace did not prove that defendant knew to a substantial certainty
  that the employee would be injured.