An injured employee’s exclusive remedy for injuries sustained on the job  is to recover workers compensation benefits, except when the employer intentionally causes the injuries. Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 280 (Tex. 2020). This SCOTX case shows how exceedingly difficult it is to prove this exception.

This case involved a commercial construction project in Houston Texas. Berkel & Company Contractors was hired by the general contractor to drill foundations for a large office tower. The general contractor required Berkel to participate in the “general contractor-controlled insurance program” that “provided uniform workers’ compensation benefits to workers” on the job site. Berkel & Co. Contactors, Inc. v. Lee, supra, *282.

On the day of the accident, the Berkel crew began a new piling without sufficient grout to finish it, in contravention of company policy. The grout hardened while the crew waited for more grout to arrive, and the auger stuck in the ground. Berkel’s foreman, Mark Stacy, instructed the crane operator, Andrew Bennett, to “bump” the auger: essentially, to rock the auger back and forth to try to free it from the hardening grout. After ten minutes of unsuccessful bumping, Stacy recommended that the operation be scuttled and restarted.

Berkel’s superintendent, Chris Miller, overrode Stacy. Spewing invectives, Miller positioned himself next to the auger. He ordered Bennett to continue bumping the auger while pressuring the crane’s hoist cable to further try to loosen it. Witnesses testified that some of the crane’s rollers came off the ground, and the crane’s hydraulic lines began to spray fluid. Though Bennett testified that none of the crane’s alarms sounded, other crew members testified that they thought the situation was “a death trap,” were worried that “[s]omething [was] going to break and hurt somebody,” and prepared to protect themselves from injury. After fifteen to thirty minutes, the crane collapsed, knocking over the steel leads. Lee stood beyond the construction barrier at grade level, and one of the leads hit Lee as it fell. The lead crushed Lee’s leg, ultimately requiring that it be amputated.

Berkel & Co. Contactors, Inc. v. Lee, *282

Lee filed an application for workers compensation benefits. He also sued Berkel for negligence. Berkel asserted that the workers compensation exclusive remedy defense barred Lee’s claims against Berkel. Lee pled that the defense did not apply because Berkel’s employee, Miller, intentionally injured Lee. The jury agreed and found in favor of Lee. The trial court entered judgment based upon the verdict and case eventually was presented to SCOTX for review.

SCOTX stated that the “Texas Workers’ Compensation Act is the exclusive remedy for a covered employee who seeks recompense for injury claims against the employer.” Berkel & Co. Contractors, Inc. v. Lee, supra, *284. However, there is an exception to this defense when the employer intentionally injures the employee.

To satisfy the intentional-tort exception, “the employer must believe that its actions are substantially certain to result in a particular injury to a particular employee, not merely highly likely to increase overall risks to employees in the workplace.”

 Berkel & Co. Contractors, Inc. v. Lee, supra, *285.

After reviewing the record, SCOTX held that there  was no evidence to support the intentional-tort exception.  Although there was testimony that someone might be injured because of Miller’s reckless conduct, there was no evidence as to who would be injured or as to how or when the injury would occur. Therefore, SCOTX reversed the trial court’s judgment in favor of Lee and rendered judgment that Lee take nothing.