Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
J OHNSON , A PPELLEE AND C ROSS -A PPELLANT , v. BP C HEMICALS , I NC ., A PPELLANT AND ROSS -A PPELLEE .
[Cite as
Johnson v. BP Chemicals, Inc
.,
Employer and employee—Cause of action brought by employee alleging
intentional tort by employer in workplace—R.C. 2745.01 is unconstitutional in its entirety—Cross-appeal dismissed as improvidently allowed.
R.C. 2745.01 is unconstitutional in its entirety. ( Brady v. Safety-Kleen Corp .
[1991],
__________________
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.” With respect to his intentional tort claim, Johnson alleged initially that
R.C. 2745.01, the “employment intentional tort” statute, was unconstitutional. With this assertion as a backdrop, Johnson then based his common-law intentional tort claim upon the following allegations [1] :
“(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.” On February 24, 1997, BP filed a Civ.R. 12(B)(6) motion to dismiss
the complaint. In its memorandum in support of the motion, BP argued that R.C. 2745.01 was a valid exercise of the General Assembly’s police powers and that Johnson’s intentional tort claim should be dismissed because he failed to allege facts sufficient to establish the existence of an intentional tort in accordance with the statutory standards set forth in R.C. 2745.01. BP also asserted that Johnson’s products liability claims were barred under Ohio law. 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 R.C. 2745.01 was unconstitutional. In his second motion, 1. In addition to his common-law intentional tort claim, Johnson, in the alternative, also alleged in his complaint that “as the employer of Plaintiff, Defendant is liable to Plaintiff under the provisions of Section 2745.01, Ohio Revised Code.”
Johnson set forth reasons why he should be able to proceed with his products liability claims against BP. On April 28, 1997, the trial court granted BP’s motion to dismiss and
denied Johnson’s summary judgment motions. The court concluded that R.C. 2745.01 was constitutional in all respects, that R.C. 2745.01 superseded common- law intentional tort claims brought by employees against their employers, and that, in this case, specific facts were not alleged sufficient to establish that BP “deliberately and intentionally” injured Johnson. The trial court further determined that Johnson failed to state a viable claim for products liability under the dual capacity doctrine. 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 R.C. 2745.01 was unconstitutional and that Johnson had properly set forth a claim for common-law intentional tort sufficient to survive a Civ.R. 12(B)(6) motion to dismiss. The court of appeals, however, agreed with the trial court that Johnson could not maintain a products liability action. Based on the holdings of the court of appeals, BP filed an appeal and Johnson filed a cross-appeal. 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.
__________________
D OUGLAS , J. The central question for our consideration is whether the court of appeals erred in concluding that R.C. 2745.01 is unconstitutional. Johnson has also filed a cross-appeal, contending that the trial court and court of appeals erred in dismissing his products liability claims.
I
R.C. 2745.01 R.C. 2745.01 became effective November 1, 1995. See Am.H.B. No. 103, 146 Ohio Laws, Part I, 756, 760. [2] This legislation represents yet another 2. Section 1, Am.H.B. No. 103, 146 Ohio Laws, Part I, 756-757, states: “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 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. 103 [4] , 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.
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.”
3. For an overview of the history of Ohio workers’ compensation law prior to the enactment of
Am.H.B. No. 103, see
Brady v. Safety-Kleen Corp
. (1991),
4. Section 3, Am.H.B. No. 103, 146 Ohio Laws, Part I, 758, provides:
“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),
Chemicals, Inc.
(1982),
power conferred by and conflicted with both Sections 34
[6]
and 35,
[7]
Article II of the
5. In
State ex rel. Ohio AFL-CIO v. Voinovich
(1994),
6. Section 34, Article II of the Ohio Constitution states:
“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.” 7. Section 35, Article II of the Ohio Constitution provides:
“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
Ohio Constitution. Specifically, this court concluded that former R.C. 4121.80 was
“totally repugnant” to Section 34, Article II, because, in enacting the legislation,
the General Assembly eliminated an employee’s right to a common-law cause of
action for an employer intentional tort that would otherwise benefit the employee.
Brady,
dissent in
Taylor v. Academy Iron & Metal Co
. (1988),
“ ‘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 in Section 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,
concerning former R.C. 4121.80, also apply with equal force to R.C. 2745.01. Both statutes were enacted to serve identical purposes. Like former R.C. 4121.80, R.C. 2745.01 was created to provide immunity for employers from civil liability for employee injuries, disease, or death caused by the intentional tortious conduct of employers in the workplace. [9] Specifically, R.C. 2745.01(A) provides that an employer is not
generally subject to liability for damages at common law or by statute for an intentional tort that occurs during the course of employment, but that an employer is subject to liability only for an “employment intentional tort” as defined. [10] “Employment intentional tort” is defined in R.C. 2745.01(D)(1) as “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.” (Emphasis added.) Further, R.C. 2745.01(B) states that employees or the dependent survivors of deceased employees who allege an intentional tort must demonstrate “by clear and convincing evidence that the employer deliberately 9. Section 35, Article II of the Ohio Constitution provides the basis for legislative enactments in the area of workers’ compensation. Although R.C. 2745.01 was not made part of the Workers’ Compensation Act (R.C. Chapter 4123), it is abundantly clear, given the nature of R.C. 2745.01, including the heightened proof standards contained therein, that the overriding purpose of the statute is to shield employers from civil liability for employee injuries caused by the intentional tortious conduct of the employer.
10. It appears that R.C. 2745.01(A) is internally inconsistent.
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. R.C. 2745.01(C)(1). In addition, the statute requires that “every pleading, motion, or other paper” be signed by the attorney of record or, if the party is not represented by an attorney, by the party. R.C. 2745.01(C)(2). [12] And, if the requirements of R.C. 2745.01(C)(2) are not complied with, the court shall impose “an appropriate sanction.” Id . The sanction may include, but is not limited to, reasonable expenses incurred by the other party, including reasonable attorney fees. Id . By establishing the foregoing standards in R.C. 2745.01, the General
Assembly has created a cause of action that is simply illusory. Under the definitional requirements contained in the statute, an employer’s conduct, in order to create civil liability, must be both deliberate and intentional . Therefore, in order to prove an intentional tort in accordance with R.C. 2745.01(D)(1), the employee, or his or her survivors, must prove, at a minimum, that the actions of the employer amount to criminal assault. In fact, given the elements imposed by the statute, it is even conceivable that an employer might actually be guilty of a criminal assault but 11. In comparing former R.C. 4121.80 with R.C. 2745.01, it is apparent that R.C. 2745.01 contains standards even more stringent (excessive) than those found in former R.C. 4121.80(G)(1), which did not require clear and convincing evidence.
12. R.C. 2745.01(C)(2) states, at the onset, “Notwithstanding any law or rule to the contrary.” This language suggests that the General Assembly has the authority to encroach upon the rule-making authority of this court. See, however, Section 5(B), Article IV, Ohio Constitution (“The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.”).
exempt from civil liability under R.C. 2745.01(D)(1).
Taylor,
36 Ohio St.3d at
162-163,
“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 in R.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 of R.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),
entirety. Because R.C. 2745.01 imposes excessive standards (deliberate and
intentional act), with a heightened burden of proof (clear and convincing evidence),
it is clearly not “a law that furthers the ‘ * * * comfort, health, safety and general
welfare of all employes.’ ”
Brady
,
14. In the case at bar, the court of appeals determined that R.C. 2745.01 was unconstitutional on
grounds other than what we have decided here today. In a well-reasoned opinion, the court of
appeals held that R.C. 2745.01 denied employees equal protection of the law in violation of Section
2, Article I of the Ohio Constitution, and that the statute also violated the open courts provision,
Section 16, Article I. We agree with the holdings of the court of appeals in this regard. However,
After determining the constitutionality of R.C. 2745.01, and after
reviewing the complaint, the court of appeals concluded that Johnson properly set
forth a claim for common-law intentional tort against BP. We agree. In his
complaint, Johnson alleged that he was exposed to a dangerous situation at the plant
and that BP knew that such exposure would be substantially certain to cause injury.
Accepting these allegations as true, as we are required to do, we hold that the
complaint properly sets forth a claim of intentional tort sufficient to survive a Civ.R.
12(B)(6) motion to dismiss. See
Mitchell v. Lawson Milk Co
. (1988), 40 Ohio St.3d
190,
appeals is affirmed with respect to its holding that R.C. 2745.01 is unconstitutional and with respect to its ruling that the complaint states a cause of action for common- law intentional tort sufficient to withstand a Civ.R. 12(B)(6) motion to dismiss. Thus, Johnson’s common-law intentional tort claim is reinstated.
II
Cross-Appeal 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. we find it unnecessary to elaborate further on the substantive merits of the court of appeals’ holdings given our holding in this case that R.C. 2745.01 exceeds the limits of legislative power under the Ohio Constitution.
Judgment affirmed in part and cross-appeal dismissed.
R ESNICK , F.E. S WEENEY and P FEIFER , JJ., concur.
M OYER , C.J., C OOK and L UNDBERG TRATTON , JJ., dissent.
__________________ OOK , 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. 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. Our Ohio Constitution restrains the powers and discretion of
government—all three branches of it.
I 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,
II The majority, citing Brady v. Safety-Kleen Corp. (1991), 61 Ohio
St.3d 624,
Assembly had no authority under the Constitution to legislate in the area of minimum wages and the like. The argument against enacting such laws was that they impaired the constitutional right to contract. So, the citizens approved a constitutional amendment setting forth that “[l]aws 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.” (Emphasis added.) Section 34, Article II, Ohio Constitution. From that, the majority gleans a prohibition against any legislation that does not “provid[e] for the comfort, health, safety and general welfare of all employes.” This section does not say that the General Assembly may pass only laws that provide for the comfort, health, safety, and general welfare of employees. It also does not say that no law may ever be passed that does not provide for the comfort, health, safety, and general welfare of employees. There is nothing in this grant of authority that can properly be read as a limitation on authority. Yet this is exactly the interpretation given it by a plurality in Brady and followed today.
{¶ 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 Section 34, Article II applied to anything more than
wage and hour regulation. A mere two years later, the
Brady
plurality jumped from
the hotly debated conclusion that Section 34, Article II allows broader legislation
for the welfare of employees, to the specious conclusion that it
prevents
any
legislation that is not specifically enacted for employees’ welfare. There is no
better argument in today’s decision, just a repeat of the
Brady
rationale.
Moreover, for the majority to cite Section 34, Article II, a provision
aimed at
employee
welfare, as a basis for holding R.C. 2745.01 unconstitutional is
inconsistent with its premise that the injuries to Brady and Johnson were not
sustained by them as
employees —
given that employer intentional torts fall outside
the scope of employment. Justice Brown noted this inconsistency in his
Brady
concurrence when he stated, “[Section 34, Article II] does not apply to employer
intentional torts because they are not part of the employment relationship.”
Brady,
61 Ohio St.3d at 639,
2745.01 unconstitutional.
III The other basis the majority cites for finding R.C. 2745.01
unconstitutional is the immunity/exclusivity provision of Section 35, Article II of
the Ohio Constitution. The majority’s argument, resurrected from
Brady
, is that
Section 35 grants authority to the General Assembly to enact laws regarding
injuries occasioned within the employment context, and thus, somehow, this
section thereby proscribes the passing of any laws affecting injuries outside the
scope of employment. Like its Section 34 argument, the majority’s Section 35
argument is unconvincing in its efforts to convert a grant of authority into a
restraint.
Brady,
within constitutional limitations, to change the common law by legislation.” If, as
Blankenship v. Cincinnati Milacron Chemicals, Inc.
(1982),
IV 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),
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 Section 35, Article
II.
Blankenship,
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,
injuries arose in the course of employment, and despite the clear language of
Section 35, Article II precluding remedies other than workers’ compensation for
such injuries, the courts in these cases found that the employer could be liable to
respond in damages. The facts in this case are similar. As the majority notes,
Johnson himself concedes in his complaint that he was injured “during the course
of his employment.” But, following
Blankenship
, the majority concludes that
Johnson was injured outside the scope of his employment, although his injuries
were sustained “while performing a required duty in the employer’s service,”
Ruckman,
V 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 R.C. 2745.01 — to foreclose the filing of cases in derogation of the clear language of Section 35, Article II and the exclusivity intended to be afforded that provision.
VI The majority opinion discloses its unfavorable view of the public
policy behind R.C. 2745.01 by characterizing it as the General Assembly’s attempt “to provide employers with immunity from liability for their intentional tortious conduct.” The statute, however, codifies a cause of action for employees for injuries not covered under Section 35, Article II. The majority is troubled by the legislative policy of setting a high
bar for tort actions in derogation of Section 35, Article II, calling the resulting cause of action “simply illusory” and the requirements “unreasonable and excessive.” But in a constitutional democracy, one is moved to ask, “Says who?” The majority also complains about the General Assembly’s choice of policy, commenting that “the chance of recovery of damages by employees for intentional torts committed by employers in the workplace is virtually zero.” The likelihood of recovery, however, seems far afield of the two asserted arguments for unconstitutionality. Instead, it expresses disdain for the General Assembly’s public-policy decision. 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 “ ‘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),
M OYER , C.J., and L UNDBERG S TRATTON , J., concur in the foregoing dissenting opinion.
__________________
L UNDBERG TRATTON , J., dissenting. Today the majority once again strikes down a constitutionally valid attempt by the General Assembly to restore balance between employees’ and employers’ rights in the context of workplace injuries. 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,
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 by way of lawsuits, but also could no longer assert any defense. Id . G.C. 1465-57 of the newly enacted workers’ compensation law provided that any employer who paid the state insurance fund premiums “shall not be liable to respond in damages at common law or by statute, save as hereinafter provided, for injuries or death of any such employee.” 102 Ohio Laws 524, 528. However, there were two exceptions to the exclusivity of the workers’ compensation remedy. If an employee’s injuries were caused by a “wilful” act of the employer or if an employee’s injuries were caused by an employer’s violation of a safety ordinance or statute, the employee could opt for either a common-law action against the employer or recovery under the workers’ compensation system. G.C. 1465-61, 102 Ohio Laws 524, 529. Employer participation was not compulsory. G.C. 1465-57, 1465-58, id. at 528. In 1912, Section 35, Article II of the Ohio Constitution was adopted,
which authorized the General Assembly to establish and regulate a workers’ compensation fund that required employer participation. 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),
Chemicals, Inc.
(1982),
“(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. Despite the General Assembly’s definition in R.C. 4121.80 of
“substantially certain” as requiring “deliberate intent to cause * * * injury,” the
court in
Van Fossen v. Babcock & Wilcox Co.
(1988), 36 Ohio St.3d 100, 522
N.E.2d 489, held that some acts committed with a culpability greater than
recklessness, but not deliberately done with an intent to injure, should be
recognized as intentional.
Id
. at paragraph six of the syllabus. This holding was
essentially echoed in
Fyffe v. Jeno’s, Inc.
(1991),
Brady v. Safety-Kleen Corp.
(1991),
“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.” 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 Section 35, Article II of the Ohio Constitution as part of the workers’ compensation trade-off. This court, in its line of decisions since Blankenship , has imposed another level of compensation for employees despite the clear proof that these injuries were part and parcel of the employment relationship.
{¶ 54} It is in light of this history that I disagree with the majority’s holding that R.C. 2745.01 is unconstitutional pursuant to Sections 34 and 35, Article II of the Ohio Constitution.
{¶ 55}
In supporting its position in this case, the majority reiterates
reasoning from
Brady v. Safety-Kleen Corp.
,
Section 34, Article II of the Ohio Constitution I would hold that R.C. 2745.01 does not conflict with Section 34,
Article II of the Ohio Constitution. Section 34, Article II of the Ohio Constitution states:
“Laws may be passed * * * providing for the comfort, health, safety and general welfare of all employees * * *.” 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,
Article II of the Ohio Constitution, the majority states, “[L]ike former R.C. 4121.80, R.C. 2745.01 was created to provide immunity for employers from civil liability for employee injuries, disease, or death caused by the intentional tortious conduct of employers in the workplace.” I disagree and believe that the opposite is true. R.C. 2745.01 does not deny but instead expressly provides employees a statutory avenue of redress for employee injuries caused by employer intentional torts. Specifically, R.C. 2745.01(A) states:
“An employer * * * shall be subject to liability to an employee * * * for damages for an employment intentional tort .” (Emphasis added.) This language does not remove a right to a remedy. It codifies it. Codification is not removal. 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, R.C. 2745.01, which requires “deliberate intent” to cause injury, does not remove a right to a remedy; it merely restores the definition of intentional tort to its proper and original, bargained-for definition. But even this definition was part of the Jones holding: “An intentional tort is an act committed with the intent to injure another * * *.” Jones, 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, at paragraph one of the syllabus, and, therefore, has already been approved by this court. 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
,
{¶ 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. Thus, R.C. 2745.01 does not remove a right to remedy, because
employees have remedies available to them, as they had prior to the enactment of R.C. 2745.01. For injuries caused by no fault at all or by the negligence or recklessness of an employer, an employee may recover workers’ compensation benefits. For injuries caused by more egregious acts of recklessness, an employer may be fined and employees may receive additional compensation by way of a VSSR award. Finally, where the employer commits a truly intentional act, the employee may bring an intentional tort action against the employer pursuant to R.C. 2745.01. Accordingly, I would hold that R.C. 2745.01 does not conflict with
Section 34, Article II of the Ohio Constitution.
Section 35, Article II of the Ohio Constitution The majority also finds R.C. 2745.01 unconstitutional because
Section 35, Article II of the Ohio Constitution authorizes only legislation pertaining to acts that occur within the employment relationship. Therefore, the majority holds, the General Assembly went beyond the authority of Section 35, Article II of the Ohio Constitution because R.C. 2745.01 attempts to regulate conduct, intentional torts, that necessarily occurs outside the employment relationship. I would hold that the General Assembly has authority beyond Section 35, Article II of the Ohio Constitution to enact R.C. 2745.01. I believe that the General Assembly never intended to rely on
Section 35, Article II of the Ohio Constitution as authority for enacting R.C. 2745.01. Am.H.B. No. 103, which enacted R.C. 2745.01, states:
“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 [
general grant of legislative power and did not need to rely on the specific grant of authority in Section 35, Article II of the Ohio Constitution. And, in fact, the General Assembly specifically stated that R.C. 2745.01 was to control actions not governed by Section 35, Article II of the Ohio Constitution. Section 1, Article II of the Ohio Constitution provides that “[t]he
legislative power of the state shall be vested in a General Assembly.” Within this
general grant of authority is the General Assembly’s police power. See
Marmet v.
State
(1887),
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),
Conclusion In conclusion, I would find that R.C. 2745.01 does not violate
Section 34, Article II of the Ohio Constitution because it does not deprive employees of a right to a remedy, but in fact provides an action for an employment intentional tort. I would further find that R.C. 2745.01 does not violate Section 35, Article II of the Ohio Constitution because the General Assembly derived the authority to enact R.C. 2745.01 from its police power. Therefore, I dissent.
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