Key Takeaways
- The Washington Supreme Court has relaxed the evidentiary burden for employees seeking to bypass the workers' compensation tort immunity that typically protects Washington employers.
- Employees may now bring civil claims against their employers outside the workers' compensation system for latent diseases if they can establish that developing the disease was a "virtual certainty" for certain employees.
- Employers may defend against these lawsuits by showing that they implemented all known and available remedial measures within their control to protect employees from hazardous exposures.
Overview
In Cockrum v. C.H. Murphy/Clark-Ullman, Inc. the Washington State Supreme Court recently lowered the bar for employees seeking to pursue civil claims outside of the workers' compensation system for latent diseases caused by workplace exposures. Under the previous standard, employees could only bring civil claims for workplace exposure injuries and illnesses if they could show such health conditions were absolutelycertain to occur to themselves. Under the new rule announced in Cockrum, employees can now proceed with a civil lawsuit for latent occupational diseases by showing that a disease was a "virtual certainty" to occur to either themselves or other employees.1
Washington's Workers' Compensation Statute and Prior Case Law
Washington's Industrial Insurance Act generally provides employers with immunity from civil lawsuits for workplace injuries, limiting workers to compensation and benefits provided under the Act. However, an exception exists: workers may sue their employer "for any damages in excess of compensation and benefits paid or payable" if their injury results from the employer's "deliberate intention" to cause such injury.2
Prior to the mid-1990s, Washington courts interpreted "deliberate intention" narrowly, finding it only in cases where an employer or its agent physically assaulted an employee.
In 1995, the Washington Supreme Court ruling in Birklid v. Boeing Co. expanded the interpretation of "deliberate intention," to cover not only physical assaults, but also any other injury resulting from a deliberate intent to injure.3 The Birklid court set forth a two-part standard for determining whether an employer acted with deliberate intention in situations that did not involve a direct physical assault. First, plaintiff-employees were required to show that an employer possessed actual knowledge that an injury was certain to occur. Second, they had to show that the employer willfully disregarded that knowledge. Following Birklid, employees suing their employers were able to meet the deliberate injury exception not only in physical assault cases, but also in cases involving exposure to toxic chemicals, but only if the exposure resulted in immediate or visible injury.
Nearly two decades later, the Washington Supreme Court in Walston v. Boeing Co., considered whether the deliberate injury exception also applied to latent diseases—conditions that usually develop gradually over time rather than as a consequence of, or in connection with, an immediate or visible injury.4The court specifically considered whether an employer's knowledge that asbestos exposure was dangerous and potentially caused cancer was sufficient to show the employer had actual knowledge that such exposure was certain to cause injury. The court concluded it was not sufficient, interpreting "certain" to mean absolute or complete certainty and relying on expert testimony indicating that asbestos exposure does not always result in disease.
Case Background: Cockrum v. C.H. Murphy/Clark-Ullman, Inc.
Jeffery Cockrum worked at an aluminum facility from 1967 to 1997, where he was repeatedly exposed to asbestos throughout his career. Evidence showed that, even before Cockrum's employment, his employer was aware that asbestos exposure was hazardous and could lead to asbestos-related diseases. The employer had established a medical monitoring program for its employees, which demonstrated that, as early as 1953, workers were developing symptoms of asbestos disease, including early-stage mesothelioma, a cancer known to be caused by asbestos exposure.
In March 2022, Cockrum was diagnosed with mesothelioma. Cockrum's doctors included his history of asbestos exposure as a factor in their diagnosis. Cockrum filed a personal injury lawsuit against his employer's corporate successor, Howmet Aerospace, Inc., alleging that his employer deliberately intended to harm him by exposing him to asbestos without providing adequate warnings or protections. Howmet won summary judgment, with the trial court concluding that Cockrum could not demonstrate actual knowledge necessary to meet the deliberate injury exception. It reasoned that Walston precluded Cockrum's claims, since both cases contained similar facts. The Washington State Court of Appeals affirmed the trial court's decision in an unpublished opinion.
New Actual Knowledge Standard for Latent Diseases: "Virtual Certainty"
In Cockrum, the Washington Supreme Court rejected the lower court's ruling and overruled Walston. The court explained that, according to the reasoning in Walston, any employee who develops a disease from exposure to a toxic substance—and whose employer intentionally caused that harm—would have no remedy under the deliberate injury exception to Washington's workers' compensation statute. The court called that result "both harmful and absurd, given the legislature's intent behind the exception."
Instead, the court established that "virtual certainty," rather than absolute or complete certainty, is sufficient to demonstrate an employer's actual knowledge that injury was certain to occur in cases involving latent diseases. The court provided a non-exhaustive list of factual circumstances that may evidence virtual certainty, including: (1) whether the employer knew that employees were repeatedly developing symptoms commonly associated with the latent disease; (2) whether the employer was aware that other similarly situated employees were experiencing similar symptoms as the plaintiff-employee; (3) whether these symptoms appeared before or at the same time as the employee's own exposure; and (4) whether the exposure was caused by a common cause within the employer's control. Based on these factors, "virtual certainty" does not require certainty that the specific plaintiff-employee will be injured. Instead, it refers to certainty that employees in similar situations will be injured.
The court reversed and remanded the case to the trial court to reevaluate summary judgment under its newly established actual knowledge standard.
However, the Washington Supreme Court also clarified that the new "virtual certainty" standard only applies to latent disease cases, not for those involving immediate and visible injuries. Furthermore, employees must also demonstrate the employer acted with willful disregard, the second part of the deliberate exception test under Birklid.5 As a result, employers that had actual knowledge based on virtual certainty may not be held liable for employees' latent diseases if they took "known remedial measures within [their] control." The court also reaffirmed that employers remain immune from lawsuits for injuries or diseases caused by negligence—only deliberate and intentional acts fall outside the protection of the state's workers' compensation statute.
Potential Impact on Litigation and Takeaways for Employers
The Cockrum decision relaxes the evidentiary burden on employees to overcome workers' compensation tort immunity normally provided to Washington employers. Employers whose workplace activities involve chemicals, or other hazardous materials, may reasonably expect to become targets of increased litigation filed on behalf of employees and former employees by toxic-tort plaintiffs' lawyers.
The Cockrum decision, however, provides the key to minimizing potential tort liability to employees: specifically, employers that take "known remedial measures" within their control, can reduce their risk. This emphasizes even further that employers must have well-developed, thoughtful, and comprehensive hazard communication and industrial hygiene programs that comply with industry standards and Washington health and safety regulations. For example, Washington Administrative Code Chapter 296-901, "Hazard Communication," already requires Washington employers to "provide employees with effective information and training on hazardous chemicals in their work areas" including training on "measures employees can take to protect themselves from these hazards." See WAC 296-901-14016 ("Employee information and training"). Best practices also include industrial hygiene monitoring of workplace activities to determine the nature and extent of potential exposures, development of engineering controls to reduce exposures, and requirements for personal protective equipment such as coveralls, eye protection, gloves, masks, and respirators to further protect employees.
Whether an employer took known remedial measures within their control will be measured against state and federal hazard communication laws and best practices in industrial hygiene and environmental health and safety. These programs are already required in Washington. But a well-documented health and safety program will also help defend against lawsuits in the new Cockrum era.
Footnotes
1 Cockrum v. C.H. Murphy/Clark-Ullman, Inc., No. 102881-4, 2025 WL 1523125 (Wash. May 29, 2025).
2 Wash. Rev. Code § 51.24.020.
3 Birklid v. Boeing Co., 127 Wash. 2d 853, 904 P.2d 278 (1995).
4 Walston v. Boeing Co., 181 Wash. 2d 391, 334 P.3d 519 (2014).
5 Neither the Washington Supreme Court nor the lower courts addressed whether Cockrum satisfied the willful disregard requirement of the deliberate exception test.
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