The estate of a man who fell and died while working for a roofing company that had a history of U.S. Occupational Safety and Health Administration violations and was fined following the 2011 incident can proceed with an intentional tort suit against the employer, a divided Supreme Court of Oklahoma ruled Tuesday.

Robert Young, an employee of Oklahoma Roofing & Sheet Metal Inc., and Oklahoma Roofing & Sheet Metal LLC, was working on the roof of a three-story building when he was “required by Employer” to unhook his single line lanyard requiring him to cross over two co-workers. He walked 10 feet beyond the point where he had unhooked his lanyard when he fell more than 40 feet to his death, according to documents filed in the Oklahoma City courthouse.

Prior to the incident, Oklahoma Roofing and Sheet Metal Inc. was cited for a violation related to the duty to have a sufficient fall protection system, records state.

Crystal Wells, acting on behalf of the estate of Robert Young, filed a lawsuit in a district court seeking damages for death and declaratory relief, stating in the filing that the death “was the result of Employer's intentional tort.”

Specifically, Ms. Wells alleged that the roofing company “provided and intended Decedent to use a single-line lanyard fall-protection system that required Decedent to temporarily unhook his safety anchor in order to pass over the other co-workers working on the roof.” Ms. Wells alleged that “when the anchor was unhooked, the fall protection system was inoperable; and therefore, unable to prevent an employee's fall like the instant fall which led to Decedent's death.”

She also alleged that the company “knew the single-line system would lead to Decedent's death; that Employer's actions were willful, wanton, and intentional; that Employer was found to be a repeat violator of the Occupational and Safety Health Administration's (OSHA) safety rules; that Employer was fined by OSHA for acts related to Decedent's death; and that Employer was previously cited on two separate occasions ‘by the United States Government for violating various Federal requirements regarding the fall-protection equipment.’”

Ms. Wells described in court documents that the roofing company’s actions were “willful, wanton, and intentional, with specific knowledge of the dangerous and potentially lethal conditions and thus, her remedy was not limited to those benefits provided by the Workers' Compensation Act” in Oklahoma.

The roofing company filed a motion to dismiss, essentially alleging that Ms. Wells' claims were barred by state law, which requires that an employer act intentionally to be sued outside of the workers comp remedy. “The issue of whether an act is an intentional tort shall be a question of law for the court,” that law states.

The district court granted the dismissal, stating Ms. Wells’ claims did not satisfy “specific intent” to cause harm, as applied in case law.

On appeal, Oklahoma Court of Criminal Appeals reversed. The employer, in turn, requested that the state Supreme Court review the case.

On Tuesday, the court wrote that “(b)ased on this Court's review of the undisputed facts, the Oklahoma Constitution, and applicable laws, we find that the portion of (state law) that includes intentional torts is not within the walls of the workers' compensation scheme or jurisdiction. Accordingly, the district court's order is reversed and the matter is remanded to the district court for further proceedings consistent with today's pronouncement.”

Three judges dissented, with one writing that the case did not meet the “substantial certainty” of intent to injury as required by case law.

“Today's majority opinion attempts to obfuscate the clear intent of the Legislature with erroneous, unsupported findings that ‘specific intent’ and ‘substantial certainty’ are one in the same,” the judge wrote. “Regardless, the statutory language and its meaning are clear — proof of ‘substantial certainty’ is insufficient to take a work-related injury outside of the workers' compensation system.”

The company and attorneys involved could not immediately be reached for comment.