Publication Date



16 p. ; This student paper has been awarded 2003-2004 UNM Law School Thesis Honors.


The New Mexico Supreme Court\'s decision in Delgado v. Phelps Dodge Chino, Inc. overruled the "actual intent test" and created an exception to the exclusivity provisions of the Workers Compensation Act which holds employers legally responsible for on-the-job injuries. The new standard created by the Delgado decision, holding employers responsible for conduct that is something less than intentional but more than negligence, purported to set the stage for a deluge of tort claims from injured employees who previously would have been precluded as a matter of law from recovering damages outside of the Act. Justice Franchini threw down the legal gauntlet by closing his opinion with the memorable caveat reproduced in the quotation supra. However, examination of Delgado and its New Mexico progeny, and comparison with case law in other jurisdictions with rules similar to those articulated by the New Mexico Supreme Court, indicate that while Delgado changed the law, its application is so narrow as to have minimal impact. Subsequent interpretations of the Delgado exception in New Mexico and other jurisdictions employing a similar standard have defined narrow boundaries and severely limited the scope of its coverage. As a result, Franchini\'s admonition, however dramatic in putting employers on notice that they will be held to stricter standards for protecting their employees, effectively seems to "signify nothing" beyond the unique facts presented by Delgado. The following discussion illustrates how Delgado is likely to come into play only in those rare instances where an employer\'s conduct is particularly egregious and the underlying facts are specifically analogous to those which led to the death of Reynaldo Delgado.


University of New Mexico School of Law

Document Type

Student Paper



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