Deliberate Intention in Oregon a Narrow, but Potentially Costly, Exception to the Exclusive Remedy Provision

Do You Know the Rule?

In Oregon, the sole remedy for an employee injured during work is workers’ compensation. ORS 656.018. This is known as the “exclusive remedy” provision.

There are exceptions to that rule, however. One of those exceptions applies where “the injury or death results to a worker from the deliberate intention of the employer … to produce such injury or death.” In that situation, the injured worker may sue her employer in tort, such as by bringing a negligence or battery claim against the employer. ORS 656.156.

How the Oregon Supreme Court interprets the deliberate intention standard

The “deliberate intention to produce the injury" means that the employer specifically intended to injure the worker. Carelessness, even if it is extreme, is not enough. 

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The phrase “deliberate intention,” according to the state’s high court, means:

• The employer determined to injure an employee;
• The employer used some means appropriate to that end; and 
• There was a specific intent on the part of the employer, and not merely carelessness or negligence, however extreme.

Jenkins v. Carman Mfg. Co., 79 Or. 448 (1916).

An employer’s repeated failure to rectify an unsafe condition

By itself, the repeated failure to rectify an unsafe condition generally does not meet the deliberate intention standard. Caline v. Maede, 239 Or. 239 (1964) (An "employer's continued failure to rectify conditions which twice previously injured plaintiff," however, does not rise to "the deliberate intention . . . to produce such injury").

Case example

In Erickson v. Salem-Keiser School District, No. 6:24-cv-1811-MC (D. Or. 04/04/25), the U.S. District Court, District of Oregon held that an employee stated a viable claim that she fell under the deliberate intention exception to the exclusivity rule. In that case, the instructional assistant for students with disabilities asked the school to call 911 when a student with a history of violence was allegedly attacking her and other staff members. A school administrator cancelled the 911 call request, and the assistant was badly injured. The school district asked the court to dismiss the case based on the exclusivity rule. The court refused. At this early stage of the case, the employee’s claim was sufficiently plausible to allow her to proceed.

Lesson for employers

Clearly, this is a highly difficult standard for an employee to meet. But it’s still important to know the standard, and there are some lessons to be learned from it.

First, note that even if the employer never wanted to injure the employee, and even its actions were no worse than carelessness – perhaps the carelessness of a particular supervisor – that won’t necessarily stop an employee from suing. 

Further, the weaker the employer’s case, and the greater its carelessness and/or safety lapses or lack of responsiveness to safety concerns, the harder it will be to get the case dismissed. Even if the employee can never meet the deliberate intention standard and the case ultimately fails, the lawsuit is likely to cost the employer or insurance carrier a significant amount in legal fees and resources. 

To limit such lawsuits, and strengthen their ability to defend themselves should they be sued, employers should:

• Develop a process for promptly responding to employees’ safety concerns and ask employees to report any safety concerns they may have.
• Promptly respond to employees’ safety concerns.
• Regularly review and update safety rules.
• Document communications with employees about safety.
• Train supervisors to consistently implement safety rules.
• Treat employees with respect, use professionalism when communicating with employees, and avoid engaging in personal disputes with employees.

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