HOUDEK, APPELLEE, v. THYSSENKRUPP MATERIALS N.A., INC., APPELLANT, ET AL.
No. 2011-1076
Supreme Court of Ohio
Submitted June 20, 2012—Decided December 6, 2012
[Cite as Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685.]
O‘DONNELL, J.
Murray & Murray Co., L.P.A., and John T. Murray, urging affirmance for amici curiae John Huffman and Olivia Duty.
O‘DONNELL, J.
{¶ 1} ThyssenKrupp Materials N.A., Inc., appeals from a judgment of the Eighth District Court of Appeals that reversed a grant of summary judgment in its favor on claims that one of its supervisors had directed Bruce R. Houdek to work in an aisle of a warehouse where he sustained injuries when a co-worker operating a sideloader struck him. We are asked to consider the impact of a recently enacted statute on our prior case decisions which held employers liable for intentional torts occurring in the workplace when injuries were substantially certain to occur.
{¶ 2}
{¶ 4} Based upon our review of this record, no evidence exists that ThyssenKrupp deliberately intended to injure Houdek by directing him to work in the warehouse aisle. Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court entered in favor of ThyssenKrupp is reinstated.
Facts and Procedural History
{¶ 5} On October 10, 2008, Houdek injured his back putting pieces of copper on a pallet while working at ThyssenKrupp‘s Cleveland warehouse. He returned to work on October 14, 2008, with light-duty restrictions, and Joseph Matras, the plant manager, asked him to assist in relabeling inventory on warehouse storage racks as part of a transition to a new inventory management system.
{¶ 6} Replacing the labels on merchandise required Houdek to work in the same aisles where workers on sideloaders pulled goods from racks 25 feet high. A sideloader moves up and down the aisles with forks protruding toward the merchandise but has the operator facing the rack, rather than the direction of travel. At a shift meeting informing employees about the relabeling process, a sideloader operator, George Krajacic, asked Matras, the plant manager, whether he should rearrange his invoices to avoid pulling merchandise in aisles where relabeling had started, but Matras indicated that this would not be necessary.
{¶ 7} The record further reveals that ThyssenKrupp did not provide reflective vests to employees working in dimly lit aisles, did not require the placement of orange safety cones at the end of aisles in which employees were working, and did not provide expandable gates to prevent machinery from entering aisles where employees were working. However, it did direct employees to alert sideloader operators before they began working in a specific aisle.
{¶ 8} Houdek told Krajacic, the second-shift sideloader operator, that he would be working in the aisle between racks A and B. After working there for approximately five hours, Houdek heard the whirring sound of an approaching sideloader. Forgetting that Houdek had told him that he would be working in that aisle, Krajacic drove the sideloader down the aisle between racks A and B, a narrow aisle which dead ends at a wall; thus, Houdek had no means of escape, and the sideloader pinned him against a scissor lift he had been using, breaking his leg below the knee and shattering his ankle.
{¶ 10} The Eighth District Court of Appeals reversed, stating that the terms used in
Arguments on Appeal
{¶ 11} ThyssenKrupp relies on this court‘s recent decisions in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, for the proposition that
{¶ 12} Houdek notes that
{¶ 13} Accordingly, we confront the question whether a claimant bringing an employer intentional tort claim is required to prove that the employer acted with a deliberate intent to injure.
Employer Intentional Tort
{¶ 14} In Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), this 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. The court concluded that ”
{¶ 15} Further, in Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), the court rejected the proposition that an employer‘s “specific intent to injure is necessary to a finding of intentional misconduct.” Relying on Prosser & Keeton, Law of Torts, Section 8, at 35-36 (5th Ed.1984) and 1 Restatement of the Law 2d, Torts, Section 8A, at 15 (1965), the court defined “intent” to include not only the specific consequences that an actor desires, but also those consequences that an actor believes are substantially certain to result from the conduct. Id. at 94-95. The court therefore held, at paragraph one of the syllabus: “An intentional tort is an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.”
{¶ 16} In response to the court‘s holdings in Blankenship and Jones, the General Assembly enacted former
{¶ 18} We then further clarified the elements of the employer intentional tort in Fyffe v. Jeno‘s, Inc., 59 Ohio St.3d 115, 570 N.E.2d 1108 (1991):
(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.
Id., at paragraph one of the syllabus.
{¶ 19} In response, the General Assembly enacted former
{¶ 20} In Johnson, this court held the 1995 version of
R.C. 2745.01
{¶ 21} Following that history, the General Assembly enacted the current version of
(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.
(D) This section does not apply to claims arising during the course of employment involving discrimination, civil rights, retaliation, harassment in violation of
Chapter 4112. of the Revised Code , intentional infliction of emotional distress not compensable underChapters 4121. and4123. of the Revised Code , contract, promissory estoppel, or defamation.
{¶ 22} The constitutionality of this statute is not questioned in this case. We upheld
{¶ 23} Nor is there any question as to the intent of the General Assembly when it enacted this statute. In Kaminski, we emphasized that “the General Assembly‘s intent in enacting
R.C. 2745.01 appears to harmonize the law of this state with the law that governs a clear majority of jurisdictions.
“[T]he common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, 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.” (Footnote omitted.) 6 Larson‘s Workers’ Compensation Law (2008), Section 103.03.
(Footnote omitted.) Kaminski at ¶¶ 99-100. Moreover, in Stetter, we observed that ”
{¶ 24} It is therefore manifest that
{¶ 25} In accord with this authority, 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.
{¶ 26} Here, there is no evidence that ThyssenKrupp deliberately intended to injure Houdek when its management directed him to work in the aisle. In his deposition, Krajacic asserted that Matras had disregarded his suggestion that he not pull goods in an aisle while employees worked there and that after the accident, Matras had said he had known that “something like this could happen and * * * didn‘t do anything about it.” However, Matras denied making this statement, and Krajacic further testified that neither he nor management at ThyssenKrupp intended to injure Houdek; rather, Krajacic explained that he had forgotten that Houdek was working in the aisle. Thus, although the evidence shows that ThyssenKrupp may have placed Houdek in a potentially dangerous situation, it does not demonstrate that either management or Krajacic deliberately intended to injure him.
{¶ 27} Further,
Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal * * * was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
The plain meaning of the word “remove” is “to move by lifting, pushing aside, or taking away or off.” Webster‘s Third New International Dictionary 1921 (1986). There is no evidence that adequate lighting conditions and safety devices such as orange cones, reflective vests, and retractable gates can be considered “an equipment safety guard” as that term is used in the statute. And even if such evidence existed, there is no evidence in the record that ThyssenKrupp deliberately removed any of these items.
{¶ 28} 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
Conclusion
{¶ 29} The Ohio Constitution vests the General Assembly, not the courts, with the legislative powers of government. Our role, in exercise of the judicial power granted to us by the Constitution, is to interpret and apply the law enacted by the General Assembly, not to rewrite it.
Judgment reversed.
O‘CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., dissents.
PFEIFER, J., dissenting.
I
{¶ 30} The majority opinion is wrong. The majority states that ”
{¶ 31}
{¶ 32} Thus, when adding the definition of “substantially certain” to the mix,
{¶ 33} An intent to injure can be inferred from the facts and circumstances of a particular case; otherwise, an injured worker would be dependent on an employer‘s confession to make his case. Again,
II
{¶ 35} Houdek raised several arguments that, if adopted by the majority, would go a long way toward demonstrating that injured workers still have a right to a remedy for workplace intentional torts. The majority does not, and workers, for the most part, do not. The appellate court below quoted at length from my dissent in Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, in which I lamented the extinguishment of injured workers’ right to a remedy for workplace intentional torts. The court wrote, “The appellant * * * lost his leg, lost his job, and will lose his right to fair recompense, if Justice [Pfeifer‘s] prediction about the most recent version of
Does [
R.C. 2745.01 ] constrain common law employer tort as the Kaminski [v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066,] majority holds, or does it, as Justice Pfeifer predicts, abolish it? Taking the majority at its written word, we find merit to Houdek‘s appeal and reverse the trial court‘s judgment granting summary judgment in favor of Krupp and against both Houdek and the BWC. If the facts and circumstances of this case do not present genuine issues of material fact as to the existence of an employer tort, then none shall.
Id. at ¶ 38.
{¶ 36} I suppose that “none shall.” The court below also 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.
Id. at ¶ 39.
{¶ 37} More‘s the pity.
Friedman, Domiano & Smith Co., L.P.A., Stephen S. Vanek, David R. Grant, and Jeffrey H. Friedman; and Smith & Condeni, L.L.P., Joseph A. Condeni, and Stacey Walley, for appellee.
Reminger Co., L.P.A., Gregory G. Guice, Clifford C. Masch, and Brian D. Sullivan, for appellant.
Tucker Ellis, L.L.P., and Benjamin C. Sassé, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, urging affirmance for amicus curiae Ohio AFL–CIO.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A. Bowman, and Jonathan M. Ashton, urging affirmance for amici curiae Ohio Conference of Teamsters and Teamsters Local 20.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for amicus curiae Ohio Association for Justice.