• Third Time Is the Charm: Ohio Supreme Court Asks "What's Left" For Ohio's Employees In Employer Intentional Tort Cases?
  • March 23, 2011 | Authors: Samuel G. Casolari; Beau D. Hollowell
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Cleveland Office
  • Key Points:

    • The Ohio Legislature enacts a statute limiting an employee's recovery in workplace intentional tort cases.
    • After striking down the Legislature's first two attempts, the Ohio Supreme Court finds the third attempt to be the constitutional charm.
    • Ohio employee must now prove an employer committed the tortuous act "with deliberate intent to injure."
    • "Specific intent" eliminates the state's previous "substantial certainty" standard for workplace injuries.

    After striking down two prior statutes, the Ohio Supreme Court has upheld the Ohio Legislature's third attempt to significantly limit an employee's ability to recover damages for workplace intentional torts. The Supreme Court's decision to uphold the constitutionality of R.C. 2745.01 has elevated the standard an employee must meet to recover common law damages from her employer outside of the state's workers' compensation system. Now, an Ohio employee must prove that her employer committed the tortuous act "with a deliberate intent to injure." The dissent found this "specific intent" standard so limiting as to ask, "What's left" of the employer intentional tort cause of action in the wake of the statute's "abolition of workplace intentional torts?"

    The Ohio Supreme Court upheld the constitutionality of R.C. 2745.01 in two companion cases, Kaminski v. Metal & Wire Prods. Co., (2010), 125 Ohio St.3d 250, and Stetter v. R.J. Corman Derailment Serv., (2010), 125 Ohio St.3d 280. In Kaminski, the Supreme Court ruled that, although the statute "intends to significantly restrict actions for employer intentional torts," the Legislature's new statute did not exceed the Legislature's authority "to enact laws 'providing for the comfort, health, safety and general welfare of all employees.'" In Stetter, the Supreme Court addressed several other challenges to the statute. It found that the statute did not violate the right to trial by jury, to a remedy, to an open court, to due process of law, to equal protection of the law or to the separation of powers. The Court found that the statute "appears to harmonize the law of this state with the law that governs a clear majority of jurisdictions."

    The statute's new "specific intent" standard stands in stark contrast to the common law test previously established in Fyffe v. Jeno's, Inc., (1991), 59 Ohio St.3d 115, a 1991 Ohio Supreme Court case. Under Fyffe, an employee could recover (1) if the employer intentionally caused the injury or (2) if the employer knew a workplace condition or procedure was "substantially certain" to cause harm to the worker yet still required the worker to perform the dangerous task. Under this common law test, the employer had knowledge that an injury was substantially certain to occur if the probability of harm was great. But the common law test did not require the employer to subjectively intend for the harm to occur.

    The new statute specifically limits causes of action to those occasions where an employer "inten[ded] to injure another" or acted "with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." R.C. 2745.01(B) (emphasis added). As such, employer intentional tort injuries cannot "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."

    The statute, as acknowledged by the lone dissenting judge, seems to create a threshold requirement precariously close to the mental state required for that of a crime. Nonetheless, since this elevated standard applies to any workplace injuries that occurred on or after April 7, 2005, employers should be entitled to summary judgment in cases that courts would have denied under the common law's "substantial certainty" test. Along those lines, it is foreseeable that this will also have the effect of seeing fewer employer intentional tort cases filed in Ohio.

    Since the Supreme Court did not establish a clear-cut definition for determining "deliberate intent," the old common law test may still provide a workable foundation for doing so. The lack of knowledge, awareness or past accidents may assist in establishing a lack of deliberate intent. Since the statute, however, deals with an intent to injure the worker, the court's focus may rest solely on that particular act in question. In turn, a court may, therefore, deem that a previous history of acts, violations or administrative penalties may not be relevant to determine an employer's specific intent to injure a particular employee.

    The Ohio Supreme Court's rulings should have an immediate effect on cases currently pending in Ohio. Defense counsel should request courts to reconsider the denial of motions for summary judgment that relied on the common law test. Ultimately, the new "deliberate intent" standard should reduce not only the lawsuits filed against employers but also findings against them as well. These rulings may also result in plaintiff attorneys trying to avoid the higher "deliberate intent" threshold by filing creative lawsuits to shoehorn their claims as a situation "involving the deliberate removal of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance," as the statute independently recognizes those claims.