Roofer’s Fall without Harness doesn’t Trigger Idaho’s ‘Unprovoked Physical Aggression’ Rule

Case File

When a roofer fell off a roof without fall protection of any kind, how much did the builder know about it? Not much, and that made all the difference in the case. Simply Research subscribers have access to the full text of the decision.

Case

Arellano v. Sunrise Homes, Inc., No. 49695 (Idaho 05/19/25)

What Happened

On a cold morning while working without a safety harness or fall protection equipment, a roofer fell off the roof he was working on when he reached down for a utility knife.

The roofer was taken to the hospital, where he was treated for a fracture to his right foot. He later complained of additional injuries to both feet, his back, and his neck.

The roofing company did not carry workers' compensation insurance, so the home builder's insurance covered the roofer's claim. The roofer received $378.90 per week in lost wage benefits and $7,880.79 in medical bills.

Later, the roofer sued the builder for negligence and negligence per se.

The builder filed a motion for summary judgment, arguing that the roofer's claims were barred by Idaho's exclusive remedy rule. The roofer countered that his negligence claims fell under the "unprovoked physical aggression" exception to the rule because the builder "knew that by not utilizing fall protection equipment, injuries would occur from falls."

The court agreed with the builder, reasoning that the roofer failed to show that the builder affirmatively ordered the roofer on the roof or that the builder had actual knowledge that injury or death to the roofer was substantially likely to occur because he was working without fall protection.

The roofer appealed to the Idaho Supreme Court.

Rule of Law

Generally, under the exclusive remedy rule in Idaho, an injured employee is limited to recovery in worker's compensation and cannot sue in tort. However, an exception applies where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer, its officers, agents, servants, or employees, and that physical aggression must include clear and convincing evidence the employer, its officers, agents, servants, or employees either specifically intended to harm the employee or engaged in conduct knowing that injury or death to the employee was substantially likely to occur.

What the Idaho Supreme Court Said

The Idaho Supreme Court affirmed the lower court's ruling against the roofer, agreeing that he failed to establish a genuine issue of material fact as to whether the builder engaged in conduct knowing that injury to the roofer was likely to occur.

Specifically, the court found a lack of evidence to establish the knowledge component, holding that nothing showed that the builder knew death or injury to the roofer was substantially likely to occur and that the evidence showed only that the builder became aware that the roofer was not using fall protection equipment shortly after the accident.

The roofer argued that the builder did not follow OSHA guidelines, and deposition testimony established that the builder's employees weren't well-versed in OSHA rules.

However, that lack of knowledge didn't meet the requirements for the "unprovoked physical aggression" standard to apply to the roofer's case.

Workers' Comp 101: In Clover v. Crookham Co., 561 P.3d 875 (Idaho 2024), the Idaho Supreme court held that the fact that the employer had "some knowledge of OSHA" did not equate to specific knowledge of OSHA requirements with respect to a drip tape lifter.

"The existence of OSHA standards and the failure to comply with those standards, alone, does not establish that [the builder] engaged in conduct knowing that injury to [the roofer] was substantially likely to occur."

Thus, the court upheld the lower court's ruling.

Takeaway

To trigger the "unprovoked physical aggression" exception to Idaho's exclusive remedy rule, a worker must show that the employer knew it was substantially likely that the worker would be injured as a result of the employer's conduct.

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