Ohio Supreme Court all but Eliminates the Intentional Tort Exception to Workers’ Comp Claims

The history of the workplace intentional tort as an exception to the state workers’ compensation system has a long and tortured history in the annals of Ohio jurisprudence. In Houdek v. ThyssenKrupp Materials N.A., Inc. (Ohio 12/6/12), the Ohio Supreme Court may have put the final nail in the coffin of this long misused claim.

Generally speaking, the state workers’ comp law provides immunity to employers from their employees’ workplace injuries. In Blankenship v. Cincinnati Milacron Chems., Inc. (1982), the Ohio Supreme Court recognized a cause of action for an employer’s intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers’ compensation laws do not provide immunity from suit.

Blankenship started at three-decade odyssey to define the meaning of “intention.” This odyssey included three different statutes, the first two of which the Court declared unconstitutional. The current statute (R.C. 2745.01), the constitutionality of which the Court in 2010 blessed twice, provides:

(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

In Houdek, the plaintiff brought suit for an intentional tort under 2745.01 after being struck by a sideloader. He alleged that his employer deliberately intended to injure him by requiring him to work in a dimly lit aisle without a reflective vest and by failing to place orange safety cones or expandable gates to prevent machinery from entering aisles where employees were working.

The Court concluded that for an employee to prevail on an intentional tort claim, the employee must prove that that the employer deliberately intended to cause injury:

Absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system.

The Court made clear that the law differentiates between accidents and intentional injuries, and that 2745.01 provides a remedy only for the latter:

Here, Houdek’s injuries are the result of a tragic accident, and at most, the evidence shows that this accident may have been avoided had certain precautions been taken. However, because this evidence does not show that ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01, ThyssenKrupp is not liable for damages resulting from an intentional tort.

The lone dissenter, Justice Pfeifer, laments that the majority’s decision ends the workplace intentional tort claim under Ohio Law:

The court below … wrote what the consequences would be if my dire evaluation of the law was indeed correct: “As a cautionary note, if Justice Pfeifer is correct, Ohio employees who are sent in harm’s way and conduct themselves in accordance with the specific directives of their employers, if injured, may be discarded as if they were broken machinery to then become wards of the Workers’ Compensation Fund. Such a policy would spread the risk of such employer conduct to all of Ohio’s employers, those for whom worker safety is a paramount concern and those for whom it is not. So much for “personal responsibility” in the brave, new world of corporations are real persons.” More’s the pity.

Houdek is a huge victory for Ohio’s employers. “Deliberate intent” is a very high standard for injured employees to meet, and should protect employers except in the most egregious of circumstances.

What cases will still prove problematic for employers under this statute? Because of presumption of deliberate intent created by 2745.01(C), those in which it is alleged that the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. How do you guard against these intentional tort cases?

• Train all of your employees about the importance of safety guards, and the dangers of toxic and hazardous substances.
• Inspect all equipment at the beginning and end of each shift to ensure that safety guards are in the proper place.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.