Introduction

              Immunities and bars to suit serve as bookends within modern American law. From sovereign immunity to statutes of repose, state legislatures routinely draw firm boundaries around what sort of disputes are actionable in civil litigation, and which are not. These limits are not accidents but rather reflect policy choices and deliberate trade-offs.

              Idaho’s workers’ compensation system reflects such a trade-off, frequently characterized as “the grand bargain” where individualized litigation for worker injuries is traded for the worker’s “sure and certain relief” through the workers’ compensation scheme into which the employer pays. This bargain—memorialized in what has come to be known as the exclusive remedy rule—serves to further the ends of predictability, efficiency, and economic stability. Under the exclusive remedy rule, the only remedy available for an injured worker as against her employer is through the workers’ compensation scheme.

              But the exclusive remedy rule is not absolute. Idaho law includes a narrow statutory exception designed to permit civil tort litigation where the employee’s injury is caused by the “willful or unprovoked physical aggression of the employer.” This exception is not a broad carve-out from the rule but rather is meant to be a key cut to a specific lock, allowing recovery beyond the workers’ compensation scheme only in rare circumstances. Judicially-created definitions in this context, however, have challenged courts and practitioners alike. This article briefly examines the exclusive remedy in Idaho, the “physical aggression exception,” and case law a practitioner needs to know to successfully navigate this narrow exception.

The Exclusive Remedy Rule

              Workers’ compensation schemes arose across the United States in the early 1900s as a form of social insurance to provide no-fault coverage for workplace accidents.[i] Idaho’s first workers’ compensation laws were enacted by the state legislature in 1917, and even through an extensive amendment in 1971, the purpose of the scheme remained fundamentally unchanged: to provide “sure and certain relief” for injured employees and their dependents.[ii]

              What has come to be described as “the grand bargain” assures an employee that her medical expenses, lost wages, and future loss of earning capacity will be provided for in the event of a workplace accident. As described by the Idaho Supreme Court, “[i]n exchange for providing that ‘sure and certain relief,’ employers are not required to admit fault, and the cost for certain medical procedures is capped at predetermined amounts set by regulation.”[iii] When coverage under the Idaho Workers’ Compensation Act is disputed, the Idaho Supreme Court has routinely reiterated it should be “interpreted liberally in favor of employees ‘to serve the humane purpose for which it was promulgated.’”[iv]

              As part of the extensive 1971 amendments, the Idaho Legislature enacted what is the statutory basis for the exclusive remedy rule today, I.C. § 72-209(1), which reads: “Subject to the provisions of section 72-223, Idaho Code,^[[v]] the liability of the employer under this law shall be exclusive and in place of all other liability of the employer to the employee, his spouse, dependents, heirs, legal representatives or assigns.”[vi] In other words, the exclusive remedy rule provides sure and certain relief, but also exempts employers from additional liability above and beyond what is bought and paid for through the workers’ compensation insurance system.

The “Physical Aggression” Exception

              The 1971 Legislature also enacted the basis for the only exception to the exclusive remedy rule that Idaho recognizes, located at Idaho Code section 72-209(3). This provision has only been amended once, in 2020, adding legislative clarification to the critical language establishing the “physical aggression exception.” Today, the exception applies “in any case where the injury or death is proximately caused by the willful or unprovoked physical aggression of the employer, its officers, agents, servants or employees, which physical aggression must include clear and convincing evidence the employer, its officers, agents, servants, or employees either specifically intended to harm the employee or engaged in conduct knowing that injury or death to the employee was substantially likely to occur.”[vii]

The physical aggression exception gets its name from the phrase “willful or unprovoked physical aggression,” which until 2020 was not defined or clarified in statute.[viii] As such, a string of case law developed as the Idaho Supreme Court attempted to apply the exception to different fact patterns presented to it, beginning in 1988.[ix] What emerged was a standard that emphasized “evidence of some offensive action or hostile attack,”[x] rejected negligent conduct (even gross negligence) as the basis for the exception’s application,[xi] and reiterated the physical component: “only offensive actions or hostile attacks aimed at the bodily integrity of the employee—opposed to mental, emotional, pecuniary, or other types of aggression—are implicated.”[xii]

In 2016, the Idaho Supreme Court articulated two separate ways of satisfying the exception: “willful” or “unprovoked.”[xiii] Establishing “willful physical aggression” required “a level of intent that is deliberate and purposeful.”[xiv] “Unprovoked physical aggression,” on the other hand, required only a showing that “the employer actually knew or consciously disregarded knowledge that employee injury would result from the employer’s action.”[xv] The Court applied this newly articulated standard in a pair of cases involving the Hecla Mining Company after two separate mining accidents in the Lucky Friday Mine.[xvi] Notwithstanding the disjunctive (“knew or consciously disregarded knowledge”), the Court’s application made it clear that the critical question was actual knowledge by the employer that injury would result from the employer’s action.[xvii]

Four years later, the Idaho Supreme Court’s decision in Gomez v. Crookham Company rocked the landscape of the physical aggression exception.[xviii] In evaluating a wrongful death appeal from summary judgment where an employee was fatally injured while cleaning a seed-sorting table with an unguarded central driveshaft, the Gomez Court latched onto the Hecla cases’ “consciously disregarded knowledge” language to conclude that the exception was meant to apply where an employee did not have evidence of actual knowledge by the employee that injury would result, but could establish that it was unreasonable for the employer to claim ignorance of an obvious and grave risk to an employee’s life and limb.[xix]

Put plainly, the Gomez Court threw wide the courthouse doors to employees who now only needed to create a genuine issue of material fact as to the “unreasonableness” of an employer’s position that it did not have actual knowledge that injury would result from a particular action, i.e., conscious disregard of information suggesting a significant risk. While the Court did not itself conclude there was a genuine issue of material fact as to the “consciously disregarded knowledge” pathway in the facts presented to it, the Court remanded the case to the trial court to decide whether there was a genuine issue of material fact “as to whether Crookham consciously disregarded knowledge of a serious risk” to the decedent employee.[xx]

The Gomez decision appears controversial even among the members of the Court. Chief Justice Burdick and Justice Bevan concurred with the majority opinion penned by Justice Moeller, but Justice Stegner concurred only in the result, and Justice Brody penned a dissent. The concurrence and dissent both criticize the “conscious disregard” standard but in different ways. Justice Stegner urged adoption of the “substantial certainty” standard (“knowledge . . . that harm to the employee will be a substantial certainty and not just a high risk”),[xxi] while Justice Brody argued that the “conscious disregard” language that first appeared in the Marek and Hecla decisions was wholly judicially crafted and statutorily incorrect. Indeed, Justice Brody pointed out that the majority was essentially “articulat[ing] the standard for recklessness.”[xxii]

The Idaho Legislature responded to the Gomez Court’s interpretation quickly. On the same day the Gomez opinion was released—February 10, 2020—Senate Bill 1321 was introduced in the Idaho Legislature to amend Idaho Code section 72-209(3).[xxiii] This amendment did two things: first, it established that the employee must prove by “clear and convincing evidence” that the injury was caused by willful or unprovoked physical aggression;[xxiv] and second, it for the first time clearly articulated what “unprovoked” physical aggression requires, specifying that the employer must have “engaged in conduct knowing that injury or death to the employee was substantially likely to occur.”[xxv]

The practitioner can take three key points from this legislative correction. First, this articulation by the Legislature expressly rejects anything short of actual knowledge by the employer as to the result of its action. Second, the amended language specifies that the knowledge by the employer should be particularized to the employee: “injury or death to the employee.” And third, the Legislature established that the requisite level of actual knowledge, i.e., the thread of awareness connecting the “conduct” to the result, turns on a substantial likelihood of injury or death to the employee.

The Idaho Supreme Court has only applied the new provision twice, in Arellano v. Sunrise Homes, Inc.[xxvi] and Johnson v. Beadz Brothers Farms.[xxvii]In Arellano, the plaintiff was a roofer who was injured when in a fall from a roof.[xxviii] Neither Arellano’s direct employer (a roofing subcontractor) nor his statutory employer (Sunrise Homes) had provided him with a safety harness or other fall protection equipment, nor had either ordered him to work on the roof without such equipment.[xxix]

On appeal from a grant of summary judgment, the Court declined to examine whether failure to provide safety equipment could constitute “conduct” under the exception, but concluded that Arellano had not submitted evidence sufficient to raise a genuine issue of material fact as to the knowledge element. There was no evidence, for example, that Sunrise Homes knew that Arellano was inexperienced as a roofer or was going to be working on the roof without fall equipment; generic knowledge that falls could result in injury was also insufficient.[xxx] Generic knowledge as to the existence of OSHA standards touching upon fall safety was also insufficient: “The existence of OSHA standards and the failure to comply with those standards, alone, does not establish that Sunrise Homes engaged in conduct knowing that injury to Arellano was substantially likely to occur.”[xxxi] As such, the Court affirmed the trial court’s grant of summary judgment.[xxxii]

Unlike Arellano, the Court’s recent decision in Johnson turned on evidentiary determinations, containing with limited substantive discussion of what the evidence proved, but reiterating how OSHA citations are approached for purposes of the physical aggression exception. In Johnson, a young man was killed in an unwitnessed workplace accident when he was caught and pulled into the gears of a self-unloading truck bed.[xxxiii] Upon suit by the decedent’s father, the employer moved for summary judgment; in opposition, the plaintiff submitted a brief with twenty exhibits attached to it, including but not limited to a police report and the OSHA citation that had been issued to Beadz Brothers following the death.[xxxiv] The trial court excluded the vast majority of the submitted material as inadmissible and granted summary judgment.[xxxv]

On appeal, the Idaho Supreme Court agreed with the trial court’s evidentiary decisions and summarily concluded that there was no admissible evidence creating a genuine issue of fact as to the applicability of the physical aggression exception.[xxxvi] In so deciding, the Court took a unique approach to the appellant’s argument that the OSHA citations were self-authenticated and admissible as “factual findings from a legally authorized investigation by a public office.”[xxxvii] Without passing on whether these arguments were evidentiarily correct, the Court concluded that if it were error to exclude the citations, such error was harmless because the “serious” violations “only support a finding that Beadz Brothers was negligent.”[xxxviii] The Court again reiterated that negligence—however gross—is insufficient to trigger the physical aggression exception. [xxxix]

Lingering Questions

Despite the Legislature’s response to Gomez, many questions remain. For example, the Court’s refusal in Arellano to examine whether failure to provide safety equipment could be “conduct” could either be dicta or a signal that it would consider omissions (i.e., failures to act) to rise to the level of “conduct.” The Legislature’s choice of the phrase “substantially likely” (rather than the “substantially certain” language proposed by Justice Stegner in his concurrence in Gomez) should be assumed to be deliberate, but raises the question as to what the difference of those standards would be, if any.[xl] Moreover, the Idaho Supreme Court has yet to articulate what portions of the (albeit limited) pre-amendment, pre-Gomez case law are still good law. Even so, the defense practitioner should be aware of the exception’s history to be equipped for the next case that implicates the exclusive remedy rule.

Naomi Olds, J.D., works in medical malpractice claims for Medical Insurance Exchange of California (MIEC), where she uses her previous experience as an associate attorney for Scanlan Griffiths + Aldridge to assess risk, manage claims, and ensure excellent defense for medical professionals. Her work with SGA gave her special appreciation for statutory bars to suit and their exceptions.

[i] See, e.g., John E. Bohyer, The Exclusivity Rule: Dual Capacity and the Reckless Employer, 47 Mont. L. Rev. 157, 157 (1986).

[ii] Miklos v. L&W Supply Corp., 582 P.3d 60, 71 (Idaho 2026).

[iii] Id. (citing Thompson v. Burley Inn, Inc., 173 Idaho 637, 648, 546 P.3d 649, 660 (2024)); see also I.C. § 72-201; IDAPA 17.01.01.803 (2022).

[iv] Id. (quoting Wernecke v. St. Maries Joint Sch. Dist. No. 401, 147 Idaho 277, 282, 207 P.3d 1008, 1013 (2009)).

[v] Idaho Code section 72-223 addresses, inter alia, third party liability and subrogation. Notably, although it is not the subject of this article, section 72-223(1) serves as the basis for another creature of statute, the concept of “statutory employers” in the absence of an actual employee-employer relationship. See, e.g., Kelly v. TRC Fabrication, LLC, 168 Idaho 788, 792, 487 P.3d 723, 727 (2021).

[vi] I.C. § 72-209(1).

[vii] I.C. § 72-209(3) (2020) (emphasis added).

[viii] The exception provision initially read: “[p]rovided that such exemptions from liability shall not apply in any case where the injury or death is proximately caused by the wilful or unprovoked aggression of the employer, its officers, agents, servants or employees, the loss of such exemption applying only to the aggressor and shall not be imputable to the employer unless provoked or authorized by the employer, or the employer was a party thereto.” I.C. § 72-209(3) (1971).

[ix] See Kearney v. Denker, 114 Idaho 755, 760 P.2d 1171 (1988).

[x] Id. at 757, 760 P.2d at 1173.

[xi] Id.; see also Marek v. Hecla, Ltd., 161 Idaho 211, 219, 384 P.3d 975, 983 (2016).

[xii] Marek, 161 Idaho at 216, 384 P.3d at 980.

[xiii] Id.

[xiv] Id.

[xv] Id. at 217, 384 P.3d at 981. Notably, this was the first time that the “consciously disregarded knowledge” language was used in relation to the physical aggression exception.

[xvi] See Barrett v. Hecla Mining Co., 161 Idaho 205, 384 P.3d 969 (2016); Marek, 161 Idaho at 211, 384 P.3d at 975.

[xvii] Id. at 210, 384 P.3d at 974; Marek, 161 Idaho at 219, 384 P.3d at 983.

[xviii] Gomez v. Crookham Co., 166 Idaho 249, 457 P.3d 901 (2020).

[xix] Id. at 258, 457 P.3d at 910. The Court suggested that this would constitute “engaging in a perverse form of plausible deniability—if [employers] claim they ‘saw no evil,’ then there is no evil.” Id. at 259, 457 P.3d at 911.

[xx] Id. at 260, 457 P.3d at 912.

[xxi] Id. at 261, 457 P.3d at 913 (Stegner, J., concurring).

[xxii] Id. at 264, 457 P.3d at 916 (Brody, J., dissenting).

[xxiii] SENATE BILL 1321, Idaho Legislature, https://legislature.idaho.gov/sessioninfo/2020/legislation/S1321/ (last visited February 17, 2026).

[xxiv] The Idaho Supreme Court has since concluded that the “clear and convincing evidence” standard in this provision is not for the trial court to use at summary judgment, but rather is what the jury should use when evaluating any questions of fact on the applicability of the exception. See Arellano v. Sunrise Homes, Inc., 175 Idaho 627, __, 569 P.3d 129, 132 (2025).

[xxv] 2020 Idaho Laws Ch. 208 (S.B. 1321).

[xxvi] Arellano,175 Idaho at __, 569 P.3d at 129.

[xxvii] Johnson v. Beadz Brothers Farms, No. 50970, 2026 WL 568892 (Idaho Mar. 2, 2026).

[xxviii] Arellano, 175 Idaho at __, 569 P.3d at 131.

[xxix] Id. at __, 569 P.3d at 131–32.

[xxx] Id. at __, 569 P.3d at 135.

[xxxi] Id. at __, 569 P.3d at 136.

[xxxii] Id. at __, 569 P.3d at 137.

[xxxiii] Johnson, 2026 WL 58892 at *1–2.

[xxxiv] Id.

[xxxv] Id. at *2.

[xxxvi] Id. at *12.

[xxxvii] Id. at *7.

[xxxviii] Id. at *8.

[xxxix] Id. (quoting Hickman v. Boomers LLC, 174 Idaho 1048, 1058, 554 P.3d 99, 109 (2024)).

[xl] See Gomez, 166 Idaho at 261, 457 P.3d at 913 (Stegner, J., concurring).