ASE 42-1 DELGADO V. PHELPS DODGE CHINO, INC. SUPREME COURT OF NEW MEXICO 34 P.3D114B(2001) Reynaldo Delgado died follot ring an explosion at a smelting plant in Deming, New Merico, aer a supervisor ordered him to perform a task that, according to Delgado 's widow, n'as Virtually certain to kill him or cause him serious injury. Phelps Dodge allegedlv chose to subject Delgado to the risk despite knoll-'ing this. His widow brought a number of tort claims against Phelps Dodge and the individual supervisors. T he trial court dismissed the case on grounds that the Workers ' Compensation Actprot'ided the exclusive remedi: leaving Phelps Dodge immune from tort liability The court of appeals upheld that ruling in a memorandum opinion. 1' he supreme court ofNeu' Mensa agreed to hear the case to determine whether Phelps Dodge was indeed immune. J'L'DGE GENE E. FRANCHJN'I In the summer of 1998, thirty-three-year-old Reynaldo Delgado resided in Deming, New Mexico, with his wife, Petitioner Michelle Delgado, and two minor children. Mr. Delgado had been working at the Phelps Dodge smelting plant n1 Hurley, New Mexico. for two years. The smelting plant distills copper ore front unusable rock, called \"slag.\" by superheating unprocessed rock to a temperature in excess of 2.000 degrees Fahrenheit. During the process. the ore rises to the top. where it is harvested, while the slag sinks to the bottom of the furnace where it drains through a valve called a \"skim hole." From there, the slag passes down a chute into a fteen-foot-tall iron cauldron called a \"ladle.\" located in a tunnel below the furnace. Ordinarily. when the ladle reaches three-quarters of its thirtyefiveeton capacity, workers use a \"mudgun\" to plug the skim hole with clay, thus stopping the ow of molten slag and permitting a specially designed truck, called a \"kressehatll,\" to enter the tunnel and lift and remove the ladle. On the nigtt of June 30. Delgado's Shorthanded work crew. under the supervision of Mike Burkett and Charlie White, was being pressured to work harder in order to compensate for the loss of production and revenue incurred after a recent ten day shut down. Suddenly, the crew experienced an especially dangerous emergency situation known as a \"nlnaway.\" The ladle had reached threeequarters of its capacity but the owing slag could not be stopped because the mudgun was inoperable and manual efforts to close the skim hole had failed. To compound the situation. the consistency of the slag caused it to ow at a faster rate than ever, thus resulting in the worst runaway condition that many of the workers on the site had ever experienced. Respondents could have shut down the furnace, thereby allowing the safe removal of the ladle of slag. However, in order to avoid economic loss. Respondents chose instead to order Delgado. who had never operated a kressehaul under runaway conditions, to attempt to remove the ladle alone. with the molten slag still pouring over its fteen-foot brim. In doing so. Respondents knew or should have known that Delgado would die or stiffer great bodily harm. W'hen Delgado entered the tunnel. he saw that the ladle was overowing and radioed White to inform him that he was neither qualied nor able to perform the removal. W'hite insisted. In response to Delgado's renewed protest and request for help. White again insisted that Delgado proceed alone. Shortly after Delgado entered the tunnel, the lights shorted out and black smoke poured from the mouth of the tunnel. Delgado's coworkers watched as he emerged from the smoke-lled tunnel. fully engulfed in ames. He collapsed before co-workers could douse the ames with a water hose. \"Why did they send me in there?\" Delgado asked coeworkers, \"I told them I couldn't do it. They made me do it anyway. Charlie sent me in.\" Delgado had suffered thirdedegree burns over his entire body and died three weeks later in an Arizona hospital. When a worker suffers an accidental injury and a number of other preconditions are satised. the Act provides a scheme of compensation that affords profound benets to both workers and employers. The injured worker receives compensation quickly, without having to endure the rigors of litigation or prove fault on behalf of the employer. The employer, in exchange, is assured that a worker accidentally injured. even by the employer's own negligence, will be limited to compensation under the Act and may not pursue the unpredictable damages available outside its boundaries. The Act represents the \"result of a bargain struck between employers and employees. In return for the loss of a common law tort claim for accidents arising out of the scope of employment, [the Act] ensures that workers are provided some compensation.\" When a worker suffers an accidental injury and a number of other preconditions are satisfied, the Act provides a scheme of compensation that affords profound benets to both workers and employers. The injured worker receives compensation quickly, without having to endure the rigors of litigation or prove fault on behalf of the employer. The employer. in exchange, is assured that a worker accidentally injured. even by the employer's own negligence, will be limited to compensation under the Act and may not pursue the unpredictable damages available outside its boundaries. The Act represents the \"result of a bargain struck between employers and employees. Lu return for the loss of a common law tort claim for accidents arising out of the scope of employment, [the Act] ensures that workers are provided some compensation." [T]he Act limits its scope to accidents, barring both compensation and exclusivity when the worker sustains a nonaccidental injury. Because the basis for limiting exclusivity depends on the nonaccidental character of the injury, Professor Larson argues: [T]he common-law liability of the employer cannot. under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional. reckless. culpable or malicious negligence, breach of statute. or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inicting an injury. We hold that when an employer intentionally niicts or willfully causes a worker to suffer an injury that would otherwise be exclusively compensable under the Act that employer may not enjoy the benets of exclusivity, and the injured worker may sue in tort. REVERSED and REMANDED in favor of plaintiff. page 993 RITICAL THINKING What are the key words in determining whether an injury falls under the Workers' Compensation Act? Is it clear when anyone acts nitentionally'.' What facts caused the court to enable the appellant to seek damages in a later tort action.\" ETHICAL DECISION MAKING Delgado's Widow and children are important stakeholders in the court's decision. as is Phelps Dodge. But ethical decisions require consideration of stakeholders who are often invisible at rst glance. Who are other relevant stakeholders in this case