Washington Law Review Online

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In Walston v. Boeing, the Supreme Court of Washington upheld a standard used to determine whether a worker injured by his employer’s deliberate intent to expose him to toxic materials could pursue remedies outside of the state’s workers’ compensation system. The Birklid standard—which requires claimants seeking remedies under the “deliberate intention” exception to show that an employer willfully disregarded actual knowledge that an injury was certain to occur—effectively prevents toxic exposure claimants from surviving motions for summary judgment. This result runs in strict contravention of the Legislature’s purpose in enacting both the deliberate intention exception and the Industrial Insurance Act. Workers who contract diseases as a result of being exposed to toxic substances by the deliberate intent of employers should be afforded the same remedial relief offered to workers injured by more immediately-felt intentional acts. To accomplish this, the Supreme Court of Washington should reconsider the high burden it places on claimants seeking remedies under the deliberate intention exception. By altering the Birklid standard to allow for a lower degree of certainty that an employer’s actions will result in injury, Washington courts can help ensure that any injury produced by the deliberate intent of an employer is fairly compensated.