Reynaldo Delgado died following an explosion at a smelting plant in Deming, New Mexico, after a supervisor ordered him to perform a task that, according to Delgado’s widow, was virtually certain to kill him or cause him serious injury. Phelps Dodge allegedly chose to subject Delgado to the risk despite knowing this. His widow brought a number of tort claims against Phelps Dodge and the individual supervisors. The trial court dismissed the case on grounds that the Workers’ Compensation Act provided the exclusive remedy, leaving Phelps Dodge immune from tort liability. The Court of Appeals upheld that ruling in a memorandum opinion. The Supreme Court of New Mexico agreed to hear the case to determine whether Phelps Dodge was indeed immune.

JUDGE GENE E. FRANCHINI 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 in Hurley, New Mexico, for two years. The smelting plant distills copper ore from 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 fifteen-foot-tall iron cauldron called a “ladle,” located in a tunnel below the furnace. Ordinarily, when the ladle reaches three-quarters of its thirty-fiveton capacity, workers use a “mudgun” to plug the skim hole with clay, thus stopping the flow of molten slag and permitting a specially designed truck, called a “kress-haul,” to enter the tunnel and lift and remove the ladle.
On the night 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 “runaway.” The ladle had reached three-quarters of its capacity but the flowing 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 flow 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 kress-haul under runaway conditions, to attempt to remove the ladle alone, with the molten slag still pouring over its fifteen-foot brim. In doing so, Respondents knew or should have known that Delgado would die or suffer great bodily harm.
When Delgado entered the tunnel, he saw that the ladle was overflowing and radioed White to inform him that he was neither qualified nor able to perform the removal. White 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 co-workers watched as he emerged from the smoke-filled tunnel, fully engulfed in flames. He collapsed before co-workers could douse the flames with a water hose. “Why did they send me in there?” Delgado asked co-workers, “I told them I couldn’t do it. They made me do it anyway. Charlie sent me in.” Delgado had suffered thirddegree 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 satisfied, the Act provides a scheme of compensation that affords profound benefits 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.”
[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 inflicting an injury.
We hold that when an employer intentionally inflicts or willfully causes a worker to suffer an injury that would otherwise be exclusively compensable under the Act that employer may not enjoy the benefits of exclusivity, and the injured worker may sue in tort.


What are the key words in determining whether an injury falls under the Workers’ Compensation Act? Is it clear when anyone acts intentionally? What facts caused the court to enable the appellant to seek damages in a later tort action?


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 first glance. Who are other relevant stakeholders in this case?

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