Johnson v. BP Chemicals, Inc.Johnson v. BP Chemicals, Inc.
[Cite as Johnson v. BP Chemicals, Inc., 1999-Ohio-267.]
Employer and employee—Cause of action brought by employee alleging intentional tort by employer in workplace—
{¶ 1} On January 17, 1997, Norman A. Johnson, appellee and cross-appellant, filed a complaint in the Court of Common Pleas of Allen County, naming as defendant BP Chemicals, Inc. (“BP“), appellant and cross-appellee herein. In the complaint, Johnson alleged that during the course of his employment with BP, he “suffered burn injuries to his lower extremities, face, right arm, and other parts of his body,” and that his injuries were a direct and proximate result of BP‘s “intentionally tortious conduct.” Johnson also sought recovery against BP for products liability. Johnson‘s products liability claims were predicated on the allegation that BP acted “in its dual capacity as the manufacturer of machinery on which Plaintiff sustained injury at the premises.”
{¶ 2} With respect to his intentional tort claim, Johnson alleged initially that
“(1) Defendant knew of the existence of the dangerousness of a procedure or condition at the premises which arose in the cleaning of prilling tower spray heads (hereinafter ‘product‘) with steam pressure within its business operation;
“(2) From past experience, Defendant knew that since critical welds had failed in the product and since inspection of the product for such foreseeable failures was knowingly inadequate, bodily injury would occur;
“(3) Defendant knew that if Plaintiff was subjected by his employment as the prill B operator with Defendant to such dangerous procedure or condition, harm to Plaintiff would be a substantial certainty and not just a high risk; and
“(4) Under such circumstances and with such knowledge, Defendant acted to require Plaintiff to continue to perform the dangerous task, to wit, cleaning the product with steam pressure.”
{¶ 3} On February 24, 1997, BP filed a
{¶ 4} Johnson responded to BP‘s motion to dismiss, and he also filed two motions for partial summary judgment. In his first motion for summary judgment, Johnson reasserted that
{¶ 5} On April 28, 1997, the trial court granted BP‘s motion to dismiss and denied Johnson‘s summary judgment motions. The court concluded that
{¶ 6} On appeal, the Third District Court of Appeals reversed the judgment of the trial court in part and affirmed it in part, and remanded the cause for further proceedings. The court of appeals held that
{¶ 7} The cause is now before this court upon the allowance of a discretionary appeal and cross-appeal.
Ray & Alton, L.L.P., and Frank A. Ray; Janice A. Quatman & Associates and Janice A. Quatman, for appellee and cross-appellant.
Thompson, Hine & Flory, L.L.P., William C. Wilkinson, Scott A. King and Christine M. Haaker, for appellant and cross-appellee.
Manley, Burke, Lipton & Cook and Andrew S. Lipton, in support of appellee and cross-appellant, for amicus curiae, Ohio Academy of Trial Lawyers.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, in support of appellee and cross-appellant, for amicus curiae, Ohio AFL-CIO.
Jones, Day, Reavis & Pogue, Jeffery D. Ubersax and Dennis A. Devine, in support of appellant, for amicus curiae, Cold Metal Products, Inc.
Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., and Kimberly L. Charles, Assistant Attorneys General, in support of appellant, for amicus curiae, Ohio Attorney General.
Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor and Robin R. Obetz, in support of appellant and cross-appellee, for amici curiae, Ohio Manufacturers’ Association and Ohio Self-Insurers’ Association.
Garvin & Hickey, L.L.C., and Preston J. Garvin, in support of appellant and cross-appellee, for amicus curiae, Ohio Chamber of Commerce.
Bricker & Eckler, L.L.P., Charles D. Smith and Bobbie S. Sprader, in support of appellant, for amici curiae, Ohio Farm Bureau and National Federation of Independent Business, Ohio Chapter.
DOUGLAS, J.
{¶ 8} The central question for our consideration is whether the court of appeals erred in concluding that
I
R.C. 2745.01
{¶ 9}
attempt by the General Assembly to govern when and under what circumstances an intentional tort claim may be commenced and maintained by an employee against his or her employer.3 Notably, in Section 3 of Am.H.B. No. 1034, the General Assembly has declared its intent to supersede the effects of several decisions of this court and to establish statutory standards, different from the common law, with respect to intentional torts in the workplace.
{¶ 10} BP and its supporting amici curiae contend that
{¶ 11} We do not dispute the long-standing principle that the General Assembly has the authority, within constitutional limitations, to change the common law by legislation. See Thompson v. Ford (1955), 164 Ohio St. 74, 79, 57 O.O. 96, 99, 128 N.E.2d 111, 115. We are also mindful of the fundamental precepts that all legislative enactments enjoy a strong presumption of constitutionality, Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38, 616 N.E.2d 163, 166, and that the role of a court when considering the constitutionality of an Act is not to judge the wisdom of the legislation, Austintown Twp. Bd. of Trustees v. Tracy (1996), 76 Ohio St.3d 353, 356, 667 N.E.2d 1174, 1176. However, these general principles are not absolute. Thus, when the validity of a statute is challenged on constitutional grounds, it is our duty to determine the meaning and effect of the Constitution vis-a-vis the challenged legislation. State ex rel. Bishop v. Mt. Orab Village School Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913, 919. Moreover, if the legislation at issue exceeds the limits of legislative power, we must protect the rights of the citizens effected by the law and, if appropriate, declare the legislation invalid.
{¶ 12} In response to our holdings in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, the General Assembly enacted former
{¶ 13} In Brady, the court held that former
Ohio Constitution. Specifically, this court concluded that former
{¶ 14} Additionally, the court in Brady adopted the rationale from the dissent in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 162, 522 N.E.2d 464, 476,8 and concluded that
we find that
{¶ 15} Clearly, the constitutional impediments at issue in Brady, concerning former
{¶ 16} Specifically,
committed all of the elements of an employment intentional tort.”11 (Emphasis added.) This standard of clear and convincing evidence also applies to a response by the employee or the employee‘s representative to an employer‘s motion for summary judgment.
{¶ 17} By establishing the foregoing standards in
{¶ 18} Indeed, the requirements imposed by
{¶ 19} Accordingly, we find that
{¶ 20} After determining the constitutionality of
{¶ 21} Therefore, for the foregoing reasons, the judgment of the court of appeals is affirmed with respect to its holding that
II
Cross-Appeal
{¶ 22} In his complaint, Johnson also sought recovery against BP based upon various theories of products liability. The trial court held, and the court of appeals agreed, that Johnson was precluded from maintaining a products liability action against BP. Johnson has filed a cross-appeal in this court with respect to this matter, and we accepted jurisdiction. However, upon further consideration thereof, we dismiss the cross-appeal, sua sponte, as having been improvidently allowed.
Judgment affirmed in part and cross-appeal dismissed.
RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
COOK, J., dissenting.
{¶ 23} The majority opinion views the issue presented by this case as a question of “what is right?” but I believe the true question is “who decides what is right?”
{¶ 24} The General Assembly passed this legislation as part of its policy-making function, a function inherent in the legislative power. With this decision, however, the majority usurps the legislative function; it cloaks judicial legislation in the guise of constitutional scholarship. Unconstitutionality is a legitimate basis for overturning democratically enacted legislation, but even gentle scrutiny of the majority opinion shows that there is no justification for labeling this legislation unconstitutional.
{¶ 25} We should be concerned by the use of judicial power to advance a particular social philosophy. When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.
{¶ 26} Our Ohio Constitution restrains the powers and discretion of government—all three branches of it.
I
{¶ 27} This case is about properly defining the term “intentional tort” in the employment context. In Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d 173, 551 N.E.2d 962, this court distinguished “direct intent” intentional torts from other intentional torts. That case defined “direct intent” intentional torts as “where the actor does something which brings about the exact result desired.” Id. at 175,
II
{¶ 28} The majority, citing Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, concludes that
{¶ 29}
{¶ 30} It is interesting to note that in Rocky River v. State Emp. Relations Bd. (1988), 39 Ohio St.3d 196, 530 N.E.2d 1, and Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 539 N.E.2d 103, this court was deeply divided on the issue of whether
{¶ 31} Moreover, for the majority to cite
{¶ 32} Accordingly,
III
{¶ 33} The other basis the majority cites for finding
{¶ 34} The majority concedes that “the General Assembly has the authority, within constitutional limitations, to change the common law by legislation.” If, as Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, concludes,
IV
{¶ 35} Though unnecessary in this dissent, I wish to take issue with the “outside the scope of employment” fiction initially employed in Blankenship. In Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 689 N.E.2d 917, this court stated that the phrase “in the course of employment” limited compensable
{¶ 36} Blankenship involved employees who claimed they were rendered ill by exposure to noxious chemicals while performing assigned duties for their employer. Nevertheless, the Blankenship majority concluded that employer intentional torts, although occurring within the course of employment, were nonetheless excluded from the pervasive immunity provided by
{¶ 37} In Brady, an employee who was on his shift, performing the duties expected of him, claimed he was injured when he helped clean up an accidental chemical spill caused by another employee, similarly performing his assigned duties for the same employer. In Walton v. Springwood Products, Inc. (1995), 105 Ohio App.3d 400, 401, 663 N.E.2d 1365, 1366, an employee was injured “in the course and scope of his employment” when his hand was caught in the machine he was operating for his employer. In Cook v. Cleveland Elec. Illum. Co. (1995), 102 Ohio App.3d 417, 419-420, 657 N.E.2d 356, 358, an employee was injured “in the course and scope of his employment” while performing “a normal part of his duties.” And in McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 239, 659 N.E.2d 317, 319, an employee claimed he suffered liver damage due to exposure to a chemical solvent “[t]hroughout his employment.” See, also, Richey v. Johnson & Hardin Co. (July 17, 1998), Hamilton App. No. C-970767, unreported, 1998 WL 395899 (employee injured while cleaning a printing press for his employer); Jones v. Gen. Motors Corp. (May 9, 1997), Defiance App. No. 4-96-21, unreported, 1997 WL 232730 (employee fatally injured while performing an ordinary task assigned by his employer).
{¶ 38} Despite what would seem to be an indisputable fact that all of these injuries arose in the course of employment, and despite the clear language of
V
{¶ 39} The morass created by Blankenship and its progeny concerning the definition of an employer intentional tort is exactly what the General Assembly attempted to remedy by enacting
VI
{¶ 40} The majority opinion discloses its unfavorable view of the public policy behind
{¶ 42} It is true that the statute may rarely be invoked. But that ought to be the case when claims are permitted in derogation of the constitutional compromise between employers and employees. And one would hope that an employer deliberately injuring an employee would be very rare indeed.
VII
{¶ 43} ” ‘The question, whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.’ ” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142, 154, 57 O.O. 134, 140, 128 N.E.2d 59, 67, quoting Fletcher v. Peck (1810), 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162, 175. I believe the majority errs today by finding this legislation unconstitutional. Therefore, I respectfully dissent.
MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing dissenting opinion.
LUNDBERG STRATTON, J., dissenting.
{¶ 45} My dissent is grounded in the history of the workers’ compensation system. In Ohio, prior to 1911, an employee attempting to recover damages against an employer for injuries sustained in the workplace had to file a common-law action against his or her employer. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 643, 576 N.E.2d 722, 735 (Holmes, J., dissenting). Injured employees were required to prove that the employer had a duty of care toward them and that the employer breached that duty. Keeton, Dobbs, Keeton & Owens, Prosser & Keeton on the Law of Torts (5 Ed.1984), Section 80, 569, 572-573. Employers could raise three defenses against such claims: (1) contributory negligence, (2) assumption of the risk, and (3) the fellow servant rule. Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes (1983), 96 Harv.L.Rev. 1641, 1644. But “[t]his system of litigation for obtaining compensation for work-related injuries became widely recognized as not meeting the needs of injured workers. In Ohio, a great number of such injuries were reportedly going uncompensated because of the legal defenses available to the employer.” Brady at 643, 576 N.E.2d at 735 (Holmes, J., dissenting).
{¶ 46} In response to the crisis, in 1911, the General Assembly enacted Ohio‘s first workers’ compensation law. See 102 Ohio Laws 524 et seq. The Workers’ Compensation Act provided a more equitable system for compensating employees’ work-related injuries. Both employer and employee could avoid the burdensome cost of litigation. Claybon, Ohio‘s “Employment Intentional Tort“: A Workers’ Compensation Exception, or the Creation of an Entirely New Cause of Action? (1996), 44 Cleve.St.L.Rev. 381, 386. The employee received a prompt recovery for injuries that occurred in the workplace without having to prove negligence. Id. In return, the employer was no longer subject to uncertain damages
{¶ 47} In 1912,
{¶ 48} In 1931, the General Assembly repealed the exceptions for willful acts and for employers’ violations of safety standards. 114 Ohio Laws 26, 39, repealing G.C. 1465-76 (formerly G.C. 1465-61). Awards for violations of specific safety requirements were absorbed and codified into the workers’ compensation system as awards supplemental to the workers’ compensation benefits if an employer‘s violation of a specific safety requirement (“VSSR“) caused the employee‘s injury. See, e.g., State ex rel. Go-Jo Industries v. Indus. Comm. (1998), 83 Ohio St.3d 529, 700 N.E.2d 1264. Subsequent to the repeal of the willful-act exception, courts interpreted the workers’ compensation system to be the exclusive remedy for work-related injuries.
{¶ 49} But in 1982, this court in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, held that an employee is not precluded by the exclusivity provisions of the workers’
“(G) As used in this section:
“(1) ‘Intentional tort’ is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.
” * * *
” ‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.” (Emphasis added.) 1986 Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 736.
{¶ 50} Despite the General Assembly‘s definition in
{¶ 52} In these cases, this court has blurred the distinction between conduct truly outside the scope of employment (an intentional act) and conduct that is part and parcel of the employment relationship. But I believe that only injuries caused by truly intentional acts fall outside the coverage of the workers’ compensation system, as established by
“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen‘s employment, laws may be passed establishing [a workers’ compensation system]. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”
{¶ 53} The court makes no differentiation between degrees of risk levels of knowledge and certainty in interpreting the workers’ compensation laws. The fact patterns in Jones and Van Fossen clearly fall under
{¶ 55} In supporting its position in this case, the majority reiterates reasoning from Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722. In Brady, the court determined that
Section 34, Article II of the Ohio Constitution
{¶ 56} I would hold that
“Laws may be passed * * * providing for the comfort, health, safety and general welfare of all employees * * *.”
{¶ 57} The plurality opinion in Brady stated that “[a] legislative enactment that attempts to remove a right to a remedy under common law that would otherwise benefit the employee cannot be held to be a law that furthers the ’ * * * comfort, health, safety and general welfare of all employees * * *.’ ” Id., 61 Ohio St.3d at 633, 576 N.E.2d at 728. The majority here makes the same conclusion about
{¶ 58} In support of its holding that
“An employer * * * shall be subject to liability to an employee * * * for damages for an employment intentional tort.” (Emphasis added.)
{¶ 59} This language does not remove a right to a remedy. It codifies it. Codification is not removal.
{¶ 60} Without question the General Assembly‘s definition of intentional tort sets a higher threshold in defining intentional tort than the court-fashioned definition. However, it was the court that resurrected the intentional tort exception to workers’ compensation laws in Blankenship and then diluted its definition in Jones and its progeny to an act done with knowledge that it is substantially certain to cause harm, as opposed to an act done with the intent to cause harm. See Bishop v. Hybud Equip. Corp. (1988), 42 Ohio App.3d 55, 58, 536 N.E.2d 694, 697. Further, in the original workers’ compensation laws, there was a willful-act exception to the exclusivity of the workers’ compensation coverage. See G.C. 1465-76, 104 Ohio Laws 193, 194 (which defined “wilful act” as “an act done knowingly and purposely with the direct object of injuring another“). Thus, in effect,
{¶ 61} The majority also complains that the definitional restrictions in requiring an employment intentional tort to be deliberate and intentional render the cause of action illusory. Yet the original definition of “intentional tort” is an act done with intent to cause harm, not an act done with knowledge that it is substantially certain to cause harm. Bishop, 42 Ohio App.3d at 58, 536 N.E.2d at 697. The mere fact the evidence will seldom dictate that an employee has a
{¶ 62} It is important to remember, in contrast to the bleak picture the majority depicts, that there is an avenue of redress for these particularly egregious, but not quite intentional, acts perpetrated by the employer that cause injury to an employee. Where an employer violates a specific safety requirement and that violation causes the employee injury, the employee can recover workers’ compensation benefits and a VSSR award, which works not only to provide additional compensation to the employee but also to punish the employer for that conduct.
{¶ 63} Thus,
{¶ 64} Accordingly, I would hold that
Section 35, Article II of the Ohio Constitution
{¶ 65} The majority also finds
{¶ 66} I believe that the General Assembly never intended to rely on
“The General Assembly hereby declares its intent in enacting sections 2305.112 and 2745.01 of the Revised Code to supersede the effect of the Ohio Supreme Court decisions in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608 [23 O.O.3d 504, 433 N.E.2d 572] (decided March 3, 1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 15 Ohio St.3d 90 [15 OBR 246, 472 N.E.2d 1046] (decided December 31, 1982 [sic, 1984]); Van Fossen v. Babcock & Wilcox (1988), 36 Ohio St.3d 100 [522 N.E.2d 489] (decided April 14 [sic, 13], 1988); Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124 [522 N.E.2d 511] (decided April 13, 1988); Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235 [527 N.E.2d 871] (decided August 24, 1988); and Fyffe v. Jeno‘s, Inc. (1991), 59 Ohio St.3d 115 [570 N.E.2d 1108] (decided May 1, 1991), to the extent that the provisions of sections 2305.112 and 2745.01 of the Revised Code are to completely and solely control all causes of action not governed by Section 35, Article II, Ohio Constitution * * *.” (Emphasis added.) Id. at Section 3, 146 Ohio Laws, Part I, 758.
{¶ 67} The General Assembly had authority to enact
{¶ 68}
{¶ 69} While the majority may prefer its own definition of “intentional tort,” it does not have the right to usurp the General Assembly‘s role in this regard because “[j]udicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy.” State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672, 674.
{¶ 70} Therefore, I would hold that pursuant to its police power, the General Assembly had the authority to change and codify the law of employment intentional torts pursuant to
Conclusion
Notes
“That new sections 2305.112 and 2745.01 of the Revised Code be enacted to read as follows:
“Sec. 2305.112.(A) AN ACTION FOR AN EMPLOYMENT INTENTIONAL TORT UNDER SECTION 2745.01 OF THE REVISED CODE SHALL BE BROUGHT WITHIN ONE YEAR OF THE EMPLOYEE‘S DEATH OR THE DATE ON WHICH THE EMPLOYEE KNEW OR THROUGH THE EXERCISE OF REASONABLE DILIGENCE SHOULD HAVE KNOWN OF THE INJURY, CONDITION, OR DISEASE.
“(B) AS USED IN THIS SECTION, ‘EMPLOYEE’ AND ‘EMPLOYMENT INTENTIONAL TORT’ HAVE THE SAME MEANINGS AS IN SECTION 2745.01 OF THE REVISED CODE.
“Sec. 2745.01. (A) EXCEPT AS PROVIDED IN THIS SECTION, AN EMPLOYER SHALL NOT BE LIABLE TO RESPOND IN DAMAGES AT COMMON LAW OR BY STATUTE FOR AN INTENTIONAL TORT THAT OCCURS DURING THE COURSE OF EMPLOYMENT. AN EMPLOYER ONLY SHALL BE SUBJECT TO LIABILITY TO AN EMPLOYEE OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE IN A CIVIL ACTION FOR DAMAGES FOR AN EMPLOYMENT INTENTIONAL TORT.
“(B) AN EMPLOYER IS LIABLE UNDER THIS SECTION ONLY IF AN EMPLOYEE OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE WHO BRING THE ACTION PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE EMPLOYER DELIBERATELY COMMITTED ALL OF THE ELEMENTS OF AN EMPLOYMENT INTENTIONAL TORT.
“(C) IN AN ACTION BROUGHT UNDER THIS SECTION, BOTH OF THE FOLLOWING APPLY:
“(1) IF THE DEFENDANT EMPLOYER MOVES FOR SUMMARY JUDGMENT, THE COURT SHALL ENTER JUDGMENT FOR THE DEFENDANT UNLESS THE PLAINTIFF EMPLOYEE OR DEPENDENT SURVIVORS SET FORTH SPECIFIC FACTS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE TO ESTABLISH THAT THE EMPLOYER COMMITTED AN EMPLOYMENT INTENTIONAL TORT AGAINST THE EMPLOYEE;
“(2) NOTWITHSTANDING ANY LAW OR RULE TO THE CONTRARY, EVERY PLEADING, MOTION, OR OTHER PAPER OF A PARTY REPRESENTED BY AN ATTORNEY SHALL BE SIGNED BY AT LEAST ONE ATTORNEY OF RECORD IN THE ATTORNEY‘S INDIVIDUAL NAME AND IF THE PARTY IS NOT REPRESENTED BY AN ATTORNEY, THAT PARTY SHALL SIGN THE PLEADING, MOTION, OR PAPER. FOR THE PURPOSES OF THIS SECTION, THE SIGNING BY THE ATTORNEY OR PARTY CONSTITUTES A CERTIFICATION THAT THE SIGNER HAS READ THE PLEADING, MOTION, OR OTHER PAPER; THAT TO THE BEST OF THE SIGNER‘S KNOWLEDGE, INFORMATION, AND BELIEF FORMED AFTER REASONABLE INQUIRY IT IS WELL GROUNDED IN FACT OR A GOOD FAITH ARGUMENT FOR THE EXTENSION, MODIFICATION, OR REVERSAL OF EXISTING LAW; AND THAT IT IS NOT INTERPOSED FOR ANY IMPROPER PURPOSE, INCLUDING, BUT NOT LIMITED TO, HARASSING OR CAUSING UNNECESSARY DELAY OR NEEDLESS INCREASE IN THE COST OF THE ACTION.
“IF THE PLEADING, MOTION, OR OTHER PAPER IS NOT SIGNED AS REQUIRED IN DIVISION (C)(2) OF THIS SECTION, THE COURT SHALL STRIKE THE PLEADING, MOTION, OR OTHER PAPER UNLESS THE ATTORNEY OR PARTY PROMPTLY SIGNS IT AFTER THE OMISSION IS CALLED TO THE ATTORNEY‘S OR PARTY‘S ATTENTION. IF A PLEADING, MOTION, OR OTHER PAPER IS SIGNED IN VIOLATION OF DIVISION (C)(2) OF THIS SECTION, THE COURT, UPON MOTION OR UPON ITS OWN INITIATIVE, SHALL IMPOSE UPON THE PERSON WHO SIGNED IT, OR THE REPRESENTED PARTY, OR BOTH, AN APPROPRIATE SANCTION. THE SANCTION MAY INCLUDE, BUT IS NOT
LIMITED TO, AN ORDER TO PAY TO THE OTHER PARTY THE AMOUNT OF THE REASONABLE EXPENSES INCURRED DUE TO THE FILING OF THE PLEADING, MOTION, OR OTHER PAPER, INCLUDING REASONABLE ATTORNEY‘S FEES. “(D) AS USED IN THIS SECTION:
“(1) ‘EMPLOYMENT INTENTIONAL TORT’ MEANS AN ACT COMMITTED BY AN EMPLOYER IN WHICH THE EMPLOYER DELIBERATELY AND INTENTIONALLY INJURES, CAUSES AN OCCUPATIONAL DISEASE OF, OR CAUSES THE DEATH OF AN EMPLOYEE.
“(2) ‘EMPLOYER’ MEANS ANY PERSON WHO EMPLOYS AN INDIVIDUAL.
“(3) ‘EMPLOYEE’ MEANS ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER.
“(4) ‘EMPLOY’ MEANS TO PERMIT OR SUFFER TO WORK.”
“The General Assembly hereby declares its intent in enacting sections 2305.112 and 2745.01 of the Revised Code to supersede the effect of the Ohio Supreme Court decisions in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608 [23 O.O.3d 504, 433 N.E.2d 572] (decided March 3, 1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 15 Ohio St.3d 90 [15 OBR 246, 472 N.E.2d 1046] (decided December 31, 1982 [sic, 1984]); Van Fossen v. Babcock & Wilcox (1988), 36 Ohio St.3d 100 [522 N.E.2d 489] (decided April 14 [sic, 13], 1988); Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124 [522 N.E.2d 511] (decided April 13, 1988); Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235 [527 N.E.2d 871] (decided August 24, 1988); and Fyffe v. Jeno‘s, Inc. (1991), 59 Ohio St.3d 115 [570 N.E.2d 1108] (decided May 1, 1991), to the extent that the provisions of sections 2305.112 and 2745.01 of the Revised Code are to completely and solely control all causes of actions not governed by
Section 35 of Article II, Ohio Constitution , for physical or psychological conditions, or death, brought by employees or the survivors of deceased employees against employers.” (Emphasis added.) While the General Assembly does not say so in this provision, it is our hope and belief that what is meant are causes of action accruing during the course of employment.
“Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.”
“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen‘s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium
or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”
” ‘Injuries resulting from an employer‘s intentional torts, even though committed at the workplace, are utterly outside the scope of the purposes intended to be achieved by
Section 35 and by the Act. Such injuries are totally unrelated to the fact of employment. When an employer intentionally harms his employee, that act effects a complete breach of the employment relationship, and for purposes of the legal remedy for such an injury, the two parties are not employer and employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against the tortfeasor, it is a tort action like any other. The employer has forfeited his status as such and all the attendant protections fall away. The Industrial Commission can have no jurisdiction over such an action. The lawsuit has no bearing upon any question relating to employment. The jurisdiction of the commission is limited to the matters delineated inSection 35, Article II . The General Assembly has no power to confer jurisdiction on the commission except as authorized by that constitutional provision. See Crawford, supra [110 Ohio St.], at 276, 143 N.E. at 575-576.Section 35 concerns itself solely with compensation for injuries arising from employment.R.C. 4121.80 concerns itself solely with injuries which by their nature have no connection whatsoever with the fact of employment. In enactingR.C. 4121.80 , the General Assembly has exceeded the scope of the authority granted to it by the constitutional amendment, and the statute is, therefore, void as an improper exercise of legislative power.’ (Emphasis sic.)” Brady, 61 Ohio St.3d at 634, 576 N.E.2d at 729, quoting Taylor, 36 Ohio St.3d at 162, 522 N.E.2d at 476 (Douglas, J., dissenting).
“Under this definition [former
R.C. 4121.80(G)(1) ], an employer, in order to be held civilly liable, must have proceeded deliberately to cause death or injury to an employee. The implications of this standard are astounding. Legally speaking, an employer is now subject to civil liability only if his actions amount to criminal assault or murder.”
R.C. 2903.02(A) , setting forth the crime of murder, states: ‘No person shall purposely cause the death of another.’ ‘Purposely’ is defined inR.C. 2901.22(A) , which provides that ‘[a] person acts purposely when it is his specific intention to cause a certain result * * *.’R.C. 4121.80(G)(1) requires that the employer act with ‘deliberate intent to cause an employee to suffer * * * death.’ Anything less will not result in civil liability. Thus, an employer is now civilly liable for an employee‘s death only if he commits murder, and even then his liability is substantially limited by other provisions ofR.C. 4121.80 .“The same is true of an employer who acts intentionally to cause injury to an employee. In fact, the criminal assault statutes require a less culpable mental state than
R.C. 4121.80 .R.C. 2903.11 sets forth the elements of felonious assault as follows:” ’ (A) No person shall knowingly:
” ’ (1) Cause serious physical harm to another * * *.’ (Emphasis added.)
” ‘Knowingly’ is defined in
R.C. 2901.22(B) : ‘A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.’” ‘Knowingly’ is a less culpable state than ‘purposely.’
R.C. 2901.22(E) ; State v. Wilkins (1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303. To act ‘knowingly,’ a person need not act with deliberate intent. State v. Wenger (1979), 58 Ohio St.2d 336, 339, 12 O.O.3d 309, 311, 390 N.E.2d 801, 803, at fn. 3. Thus, an employer may actually be guilty of criminal assault but exempt from civil liability underR.C. 4121.80(G)(1) !” (Emphasis sic and footnote omitted.) Taylor, 36 Ohio St.3d at 162-163, 522 N.E.2d. at 476-477 (Douglas, J., dissenting).