The Trend In Construing The Ohio Employer Intentional Tort Exception – A Consistent, Workable Standard Or Confusing, Expansive Quandary? DD 12/03

Defense Digest

The Trend In Construing The Ohio Employer Intentional Tort Exception – A Consistent, Workable Standard Or Confusing, Expansive Quandary?

The Ohio Supreme Court has fashioned an exception to the rule of exclusivity of the Ohio workers' compensation system under which an employer can be held liable to an employee in common law for intentional torts.  However, the standard which was developed is by no means clear and the bench and bar have been left without any guidelines for its application.

History

Pursuant to the Ohio Workers Compensation Act (the "Act"), workers' compensation is the exclusive remedy for all deaths, injuries or occupational diseases received by an employee "in the course of or arising out of" his employment.  ORC Ann. § 4123.74.  Nevertheless, although the Act and its derivative statutes seem to be clear, the Ohio Supreme Court in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St. 2d 608 (1982), held that a claimant could maintain a common-law action to redress an employer's intentionally inflicted harm.  The court's reasoning was that an employer's intentional conduct was not a natural risk of employment and did not arise out of the employment relationship.  Id. at 613. 

Blankenship and its progeny, however, left at least one major issue unresolved – namely, the definition of "intentional tort."  As a result, the Ohio Supreme Court attempted to clarify the standards for intentional torts, first in Van Fossen v. Babcock & Wilcox Company, 36 Ohio St. 3d 100 (1988), and later in Fyffe v. Jeno's Inc., 59 Ohio St. 3d 115 (1991).  The court developed a three-prong test, whereby to establish an intentional tort, an employee must prove:

In an attempt to supersede the effects of Blankenship, Van Fossen and Fyffe and restore the balance of the workers' compensation system, the Ohio General Assembly enacted an employment intentional tort statute on November 11, 1995.  ORC Ann. § 2745.01 imposed a higher standard and a heightened burden of proof on employees seeking to bring a tort action against their employers.  The Ohio judiciary, however, did not allow this statute to stand, and in Johnson v. BP Chemicals, Inc., 85 Ohio St. 3d 298 (1991), the Ohio Supreme Court declared this statute to be unconstitutional in its entirety.

As a result, the intentional tort exception still exists under common law as expressed in Blankenship, Van Fossen and Fyffe.  However, as before, the standards for determining exactly what constitutes an employer intentional tort are far from clear, and there is still not a uniform application of theory.

Trends in Application by the Courts

The Ohio Supreme Court has instructed courts to refrain from construing "intentional tort" too broadly, explaining that the "dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory framework of the Act is not circumvented simply because a known risk later blossoms into reality."  Van Fossen, 36 Ohio St. 3d at 116.  According to the court, "[i]f 'intentional wrong' is interpreted too broadly, this single exception would swallow up the entire 'exclusivity' provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease."  Id. at 115-116.

The trend in construing the unintentional tort exception narrowly is evidenced by the fact that the majority of recent cases have been decided in favor of employers, with a large number of those cases turning on the plaintiff's failure to establish the employer's knowledge that harm to the employee is substantially certain.  See Bayer v. Sugar Creek Cartage, Inc., 2003 Ohio App. LEXIS 4342 (5th App. Dist. Sept. 4, 2003); Crnarich v. The United Foundries, 2003 Ohio App. LEXIS 3958 (7th App. Dist. Aug. 22, 2003); Schriner v. Valv-Trol Company, 2003 Ohio App. LEXIS 2290 (6th App. Dist. May 16, 2003); McHenry v. Terry Materials, Inc., 2003 Ohio App. LEXIS 1011 (12th App. Dist. March 10, 2003); Flynn v. Herbert E. Orr Co., 2002 Ohio App. LEXIS 6389 (3rd App. Dist. Dec. 4, 2002); Koback v. Tri-Arch Inc., 2002 Ohio App. LEXIS 5482 (8th App. Dist. Oct. 10, 2002).

Where the courts have allowed an intentional tort action to proceed against an employer, the majority of cases involved modifications/alterations of a machine or a safety device by the employer.  See Costin v. Consolidated Ceramic Products, Inc., 151 Ohio App. 3d 506 (8th App. Dist. 2003); Adcock v. Scandura Ohio, Inc., 2002 Ohio App. LEXIS 6041 (6th App. Dist. Nov. 15, 2002); Moebius v. General Motors Corporation, No. 19147, 2002 Ohio App. LEXIS 4051 (2nd App. Dist. Aug. 2, 2002); Harbin v. Ohi-Tec Manufacturing, Inc., No. 2001 CA 70, 2002 Ohio App. LEXIS 2957 (2nd App. Dist. June 14, 2002); Brookover, 2002 Ohio App. LEXIS 2424.  Other factors found to be relevant in allowing an intentional tort action to proceed are:

1. evidence of prior accidents - Arrigo-Klacik v. Germania Singing and Sports Society, 2001 Ohio App. LEXIS 3866 (10th App. Dist. Aug. 30, 2001); Moebius, 2002 Ohio App. LEXIS 4051; Adcock, 2002 Ohio App. LEXIS 6041;
2. failure to properly train or instruct employees - Harbin, 2002 Ohio App. LEXIS 2957; Moebius, 2002 Ohio App. LEXIS 4051; Costin, 151 Ohio App. 3d 506; Brookover, 2002 Ohio App. LEXIS 2424; and
3. admitted knowledge of the danger and/or the certainty of injury on behalf of the employer – Logan v. Birmingham Steel Corp., 2003 Ohio App. LEXIS 4591 (8th App. Dist. Sept. 25, 2003); Croft v. Fluor Daniel Engineering, Inc., 2002 Ohio App. LEXIS 3442 (1st Appl Dist. June 28, 2002); Gibson v. Drainage Products, Inc., 2002 Ohio App. LEXIS 6069 (3rd App. Dist. Nov. 18, 2002); Hunter v. Interpak, Inc., 2002 Ohio App. LEXIS 6967 (11th App. Dist. Dec. 20, 2002).

However, the ability of the courts to make the intentional tort standard even more expansive was recently seen in Caldwell v. Petersburg Stone Company, 2003 Ohio App. LEXIS 2935 (7th App. Dist. June 17, 2003), where the plaintiff was struck by a boulder when it unexpectedly dislodged from the quarry wall while the plaintiff was attempting to remove undetonated explosives from the quarry.  Although characterizing the evidence as "less than overwhelming," the Caldwell Court found that a genuine issue of material fact was presented as to whether the plaintiff's injury was substantially certain to occur because the employer had no established safety plan within the cleanup operations; the plaintiff's concerns were disregarded; and the plaintiff was sent to the site without an assistant.  Id. at *26.  Consequently, the Caldwell case suggests that without explicit guidelines, courts may continue to expand the Fyffe standards to find that negligence or recklessness by an employer is enough to constitute an intentional tort.

As such, although the majority of recent cases applying the intentional tort standards have been decided in favor of employers, there is still not a consistent, workable standard for determining exactly what constitutes an employer intentional tort and what does not.  Instead, courts and counsel are required to apply their own often contradictory interpretations of this standard upon a wide variety of fact patterns.  Therefore, until the Ohio Supreme Court again steps in to provide additional guidance, whether an employer's actions would constitute intentional misconduct or simply negligent or reckless acts remains unclear.

*Sam is the managing attorney of the Akron, OH office and can be reached at (330) 255-0039 or scasolari@mdwcg.com.  Kim is an associate in the Philadelphia, PA office and is a member of the Appellate and Post-Trial Advocacy group.  She can be reached at (215) 575-2707 or kboyer@mdwcg.com.