KAMINSKI, APPELLEE, v. METAL & WIRE PRODUCTS COMPANY, APPELLANT, ET AL.
No. 2008-0857
Supreme Court of Ohio
March 23, 2010
125 Ohio St.3d 250, 2010-Ohio-1027
CUPP, J.
Submitted February 18, 2009
{¶ 1} This appeal and a companion case, Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, challenge the constitutionality of
{¶ 2} In Stetter, 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, also decided this day, we uphold the constitutionality of
I. Facts and Procedural History
{¶ 3} On June 30, 2005, plaintiff-appellee, Rose Kaminski, was working as a press operator at the Salem, Ohio metal fabrication manufacturing facility of defendant-appellant, Metal & Wire Products Company (“Metal & Wire“). The automatic press that Kaminski operated used a coil of rolled steel fed into the press to produce stamped, flat pieces. In operating the press, Kaminski‘s job was to ensure that the coil feed ran smoothly, shut the press down if it jammed, and verify that the stamped pieces met required specifications. When the coil of steel was used up, she would summon a supervisor, who would load a new coil into place with a forklift.
{¶ 4} When Kaminski‘s press ran out of steel on June 30, she searched for her shift‘s supervisor to load another coil, but she was unable to find him. Kaminski enlisted a co-worker who had loaded coils in the past to load the new coil. The co-worker used the right fork of a forklift to lift a coil, which was about five feet tall and weighed about 800 pounds.
{¶ 5} To properly load the coil onto Kaminski‘s press, the coil had to be switched from the right fork to the left fork. To accomplish the switch, the co-worker had to lower the coil to the floor, back the forklift away from it, and then pull forward again with the left fork positioned to pick up the coil.
{¶ 6} When the coil is off the fork, it can become unsteady. The co-worker was at first reluctant to have Kaminski, a small woman who was about the same height as the coil, steady the coil in an upright position while he backed away from it and repositioned. However, the two eventually agreed that Kaminski would hold the coil because the supervisor was not there and because the co-worker believed that Kaminski wanted to do it.
{¶ 7} With Kaminski steadying the coil, the co-worker backed the forklift away and then pulled forward. Rather than going cleanly into the coil‘s opening, the fork bumped the coil. Kaminski was unable to control the coil. It wobbled and then fell onto Kaminski‘s legs and feet, injuring her.
{¶ 8} Kaminski applied for and received workers’ compensation benefits for her injuries. She was unable to return to work at Metal & Wire as a press operator due to the injuries. After receiving paychecks until March 2006, she was eventually discharged from employment because no other position was available.
{¶ 9} About two months after the incident, on August 29, 2005, Kaminski filed a lawsuit in which she alleged that Metal & Wire had committed an employer intentional tort under
{¶ 10} Metal & Wire moved for summary judgment on its counterclaim. The trial court granted the motion, declaring the statute constitutional and holding that it therefore applied to Kaminski‘s claim. Metal & Wire then moved for summary judgment on Kaminski‘s complaint. The trial court granted that motion, determining that Kaminski had failed to raise a genuine issue of material fact that Metal & Wire‘s conduct fell within the statutory criteria necessary to commit an employer intentional tort.
{¶ 11} On appeal, the Seventh District Court of Appeals agreed with Kaminski‘s first assignment of error and held that
{¶ 12} The trial court had considered Kaminski‘s claims only under the employer intentional-tort statute. However, the court of appeals proceeded to consider at length whether her claims met the criteria for a common-law employer intentional tort. It held that Kaminski had presented sufficient evidence under the common-law test to survive summary judgment, and it remanded the cause to the trial court for further proceedings. Id. at ¶ 46-85.
{¶ 13} We accepted Metal & Wire‘s discretionary appeal for review of three propositions of law.1 119 Ohio St.3d 1407, 2008-Ohio-3880, 891 N.E.2d 768. The first proposition urges us to overrule the precedent relied upon by the court of appeals in holding
II. History and Development of Employer Intentional-Tort Law in Ohio
{¶ 14} Any analysis of the development of Ohio‘s case law regarding employer intentional torts necessarily centers on Section 35, Article II of the Ohio Constitution. That section provides:
{¶ 15} “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.”
{¶ 16} Ohio employees injured in the workplace before Section 35, Article II was adopted were forced to bring a common-law action against their employer and to prove that the employer was at fault. The employer had a number of powerful common-law defenses that left many deserving employees uncompensated. In 1911, in response to calls for reform, the General Assembly, acting without the benefit of a specific constitutional provision, enacted a statute governing compensation for industrial injuries. 102 Ohio Laws 524 et seq. The following year, the initial version of Section 35, Article II of the Ohio Constitution was adopted. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 109-110, 522 N.E.2d 489.
{¶ 17} In its initial form, Section 35 empowered the General Assembly to provide for the compensation of workplace injuries or occupational diseases and authorized that body to enact legislation requiring compulsory employer contributions into a statewide fund. Section 35 and its derivative legislation “were public policy trade-offs” by which the employee achieved “a certain and speedy recovery in exchange for granting a more limited liability to the employer.” Id. at 110. As originally enacted, Section 35 did not speak to the question of whether an employee who collected from the state fund could also sue the employer in tort for the same injury.
{¶ 18} The 1911 legislation contained a “wilful act” exception that allowed an employee to bring a common-law action against his employer in certain situations. The term “wilful act,” however, was not originally statutorily defined, leading to
{¶ 19} Effective January 1, 1924, Section 35, Article II was amended to make the workers’ compensation laws the exclusive remedy. The amendment added the second sentence to Section 35, which continues in force today and provides that “[s]uch compensation shall be in lieu of all other rights to compensation term” and that employers who comply with workers’ compensation laws “shall not be liable to respond in damages at common law or by statute.” On its face, this provision was widely believed to grant immunity to complying employers “from any common-law actions for injuries suffered by employees in the workplace.” (Emphasis sic.) Van Fossen, 36 Ohio St.3d at 111.
{¶ 20} Fifteen years later, this court decided Triff v. Natl. Bronze & Alum. Foundry Co. (1939), 135 Ohio St. 191, 14 O.O. 48, 20 N.E.2d 232, which held at paragraph two of the syllabus that an employee could file suit, despite Section 35, for an injury that resulted from a noncompensable occupational disease. The General Assembly “immediately amended the workers’ compensation laws to restore the exclusivity of remedy.” Van Fossen, 36 Ohio St.3d at 111. To that end, the General Assembly modified G.C. 1465-70, see 118 Ohio Laws 422, 426-427, to provide that employers who comply with workers’ compensation statutory requirements “shall not be liable to respond in damages at common law or by statute, for any injury, disease, or bodily condition, whether such * * * is compensable under this act or not.”2 G.C. 1465-70 was later recodified as
{¶ 21} Despite the emergence and development of the concept that recovery within the workers’ compensation system was to be the exclusive remedy for employee injury in the workplace, this court in Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, devised an exception. Blankenship‘s syllabus held that “[a]n employee is not precluded by Section 35, Article II of the Ohio Constitution, or by
{¶ 22} In Blankenship, the trial court granted the defendants’ motion to dismiss the plaintiffs’ suit, which alleged that the employer, a manufacturer of chemicals, had committed an intentional tort by exposing the plaintiffs to dangerous chemicals. The court of appeals affirmed the dismissal by reasoning that “the purpose of Section 35, Article II of the Ohio Constitution, was to abolish civil actions by employees against complying employers for work-related injuries.” Thus, courts lack jurisdiction over such claims. “To hold otherwise would clearly frustrate the enabling language of Art. II, Section 35 * * * and the legislative scheme embodied in
{d} “Employe” was at one time a commonly accepted spelling of “employee,” but is no longer widely used. See Garner, A Dictionary of Modern Legal Usage (2d Ed.1995) 312 (although “employee” is now the standard widespread form, “[e]mploye was once common in English“); Black‘s Law Dictionary (9th Ed.2009) 602 (indicating that “employe” is an alternate spelling of “employee“).
{¶ 24} Notably, this court in Blankenship did not consider Section 35, Article II, beyond observing that it does not “expressly extend the grant of immunity to actions alleging intentional tortious conduct by employers against their employees.” Id. at 612. See also id. at the syllabus.
{¶ 25} In Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 95, 15 OBR 246, 472 N.E.2d 1046, this court followed up on Blankenship by rejecting 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 (5th Ed.1984) 35-36, Section 8, and 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A, the Jones court formulated a broadened definition of “intent.” That definition focused not just on the specific consequences that an actor desires but also on those consequences that an actor believes are substantially certain to result from the actor‘s conduct. The court 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.” The court then applied this holding to the facts of three different cases accepted for
{¶ 26} The Jones court also made two more noteworthy holdings. The court held at paragraph two of the syllabus that “[t]he receipt of workers’ compensation benefits does not preclude an employee or his representative from pursuing a common-law action for damages against his employer for an intentional tort.” The court held at paragraph three of the syllabus that “[a]n employer who has been held liable for an intentional tort is not entitled to a setoff of the award in the amount of workers’ compensation benefits received by the employee or his representative.”5
{¶ 27} In the wake of Blankenship and Jones, the General Assembly enacted former R.C. 4121.80 in Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 733-737, effective August 22, 1986. Former R.C. 4121.80(G)(1) defined “substantially certain” as requiring that an employer act “with deliberate intent to cause an employee to suffer injury, disease, condition, or death.” 141 Ohio Laws, id., at 736.
{¶ 28} Having held that former R.C. 4121.80 did not apply to the case before it,6 this court in Van Fossen endeavored to clarify the standards established in
{¶ 29} The standards for a common-law employer intentional tort established in Van Fossen were subsequently modified in Fyffe v. Jeno‘s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraphs one and two of the syllabus. Paragraph one of the syllabus of Fyffe states:
{¶ 30} “Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in order to establish ‘intent’ for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.)”
{¶ 31} Paragraph two of the syllabus of Fyffe states:
{¶ 33} In light of later decisions of this court striking down as unconstitutional several more enactments governing employer intentional torts (including former R.C. 4121.80), Fyffe‘s common-law test for employer intentional torts applied until the General Assembly in House Bill 498, effective April 7, 2005, enacted the version of
B. Brady v. Safety-Kleen Corp.
{¶ 34} This court specifically addressed the constitutionality of former R.C. 4121.808 in Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722. The syllabus holdings that emerged from Brady were:
{¶ 36} “2. R.C. 4121.80 exceeds and conflicts with the legislative authority granted to the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Constitution, and is unconstitutional in toto.” Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, at paragraphs one and two of the syllabus.
{¶ 37} The court in Brady divided into a three-one-three result in which a justice who joined both paragraphs of the syllabus and concurred in the judgment did not join the plurality opinion. See id. at 635.
{¶ 38} The plurality opinion did not analyze any specific provision of former R.C. 4121.80, but directed its inquiry “to the threshold question of whether R.C. 4121.80, as a whole, transcends the limits of legislative power under the Ohio Constitution.” Id. at 633.
{¶ 39} The plurality opinion then found, with little analysis and no citation of any authority, that the statute was “totally repugnant to” Section 34, Article II9 in 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 employes * * *‘” Brady, 61 Ohio St.3d at 633.
{¶ 40} The plurality opinion in Brady then considered former R.C. 4121.80 in light of Section 35, Article II. The opinion stated that “the plain import” of the first sentence of Section 35 “indicates that the purpose of workers’ compensation is to create a source of compensation for workers injured or killed in the course of employment. * * * As this court explained in Blankenship [69 Ohio St.2d at 614, 23 O.O.3d 504, 433 N.E.2d 572]: ‘* * * the protection afforded by the
of an action committed with the intent to injure another if injury or an occupational disease or condition occurs as a direct result.
{e} “‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.” 141 Ohio Laws, Part I, 736.
{¶ 41} “However, it is readily apparent that R.C. 4121.80 does not further the purposes of Section 35, Article II, but instead attempts to circumvent them completely.” (Emphasis sic.) Brady, 61 Ohio St.3d at 633-634.10
{¶ 42} Although he joined both paragraphs of the syllabus and the judgment, Justice Herbert R. Brown did not accept some important parts of the plurality opinion and wrote separately in Brady to fill in “a gap” in the analysis. Id. at 639 (Herbert R. Brown, J., concurring). Although Justice Brown agreed that “R.C. 4121.80 is not authorized by Sections 34 and 35, Article II of the Ohio Constitution,” id., he did not believe that this conclusion ended the inquiry:
{¶ 43} “This does not mean, however, that the General Assembly has no power to modify intentional tort law by legislation. The legislature may do so in the exercise of its police power. Cf. State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602 (enactment of Workers’ Compensation Act prior to the adoption of Section 35, Article II was a valid exercise of the police power). However, while the General Assembly‘s exercise of the powers granted by Sections 34 and 35 of Article II is not limited by any other provision of the Ohio Constitution, * * * its exercise of the police power is. Thus, it is necessary to go beyond the analysis in the majority opinion and test the constitutionality of R.C. 4121.80 with reference to provisions of the Constitution other than Sections 34 and 35 of Article II.” (Emphasis sic.) Brady, 61 Ohio St.3d at 640.
{¶ 44} Justice Brown then stated that former R.C. 4121.80(C) and (D) violated Section 5, Article I of the Ohio Constitution, which guarantees the right to a trial by jury, by requiring the Industrial Commission, and not a civil jury, to determine damages in an intentional-tort action. Id. He also reasoned that former R.C. 4121.80(D)‘s cap on damages was unconstitutional. Id. at 641.
{¶ 45} The obvious implications of Justice Brown‘s separate opinion in Brady are that (1) although Sections 34 and 35 do not specifically authorize legislation in
{¶ 46} This court next had occasion to consider employer intentional-tort legislation in Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707 N.E.2d 1107, which construed a version of
III. Analysis
{¶ 47}
{¶ 48} “(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.
{¶ 49} “(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.
{¶ 50} “(C) Deliberate removal by the 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.
{¶ 51} “(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 under Chapters 4121 and 4123 of the Revised Code, contract, promissory estoppel, or defamation.”
A. The Statutory Intent
{¶ 52} In construing current
{¶ 53} ”
{¶ 55} “When we consider the definition of ‘substantial certainty,’ it becomes apparent that an employee does not have two ways to prove an intentional tort claim as
{¶ 56} As an initial matter, we agree with the court of appeals that the General Assembly‘s intent in enacting
{¶ 57} This view is supported by the history of employer intentional-tort litigation in Ohio and by a comparison of the current statute to previous statutory attempts. See, e.g., Van Fossen, 36 Ohio St.3d at 108-109, 522 N.E.2d 489, holding that former R.C. 4121.80(G) (which bore a marked resemblance to current
B. Sections 34 and 35, Article II of the Ohio Constitution
{¶ 58} Our inquiry into the constitutionality of
{¶ 59} Second, “a fundamental principle of the constitutional separation of powers among the three branches of government is that the legislative branch of government is ‘the ultimate arbiter of public policy.‘” Arbino at ¶ 21, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. In fulfilling that role, the legislature is entrusted with the power to continually refine Ohio‘s laws to meet the needs of our citizens. Arbino, id.
{¶ 60} It is undisputed that Section 1, Article II of the Ohio Constitution, which vests all legislative power of the state in the General Assembly, empowers that body to enact any law that does not conflict with the Ohio or United States Constitution. See State ex rel. Jackman v. Cuyahoga Cty. Court of Common Pleas (1967), 9 Ohio St.2d 159, 162, 38 O.O.2d 404, 224 N.E.2d 906. This authority includes the power to “alter, revise, modify, or abolish the common law” as the General Assembly may deem necessary to further the common good. Arbino at ¶ 131 (Cupp, J., concurring). See Thompson v. Ford (1955), 164 Ohio St. 74, 79, 57 O.O. 96, 128 N.E.2d 111 (within the scope of its police powers, the General Assembly “may modify or entirely abolish common-law actions and defenses“); accord Strock v. Pressnell (1988), 38 Ohio St.3d 207, 214, 527 N.E.2d 1235.
{¶ 61} Third, it is not the role of the courts to establish their own legislative policies or to second-guess the policy choices made by the General Assembly. “[T]he General Assembly is responsible for weighing [policy] concerns and making policy decisions; we are charged with evaluating the constitutionality of their choices.” Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212, quoting Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 113.
{¶ 62} We first consider Sections 34 and 35, Article II of the Ohio Constitution by examining the plain meaning of those provisions.
1. Section 34, Article II of the Ohio Constitution
{¶ 63} Section 34, Article II authorizes the General Assembly to enact laws “providing for the comfort, health, safety and general welfare of all employes.” Clearly, this section states its grant of authority to the General Assembly in the affirmative (“Laws may be passed“) and not in the negative or in the restrictive.
{¶ 65} In rejecting these arguments and upholding the statute as “a valid exercise of legislative authority under Section 34, Article II of the Ohio Constitution,” id. at paragraph two of the syllabus, we reasoned:
{¶ 66} “This court has repeatedly interpreted Section 34, Article II as a broad grant of authority to the General Assembly, not as a limitation on its power to enact legislation. See, e.g., Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 14, 539 N.E.2d 103, 114. [Plaintiffs‘] position would require Section 34 to be read as a limitation, in effect stating: ‘No law shall be passed on the subject of employee working conditions unless it furthers the comfort, health, safety and general welfare of all employees.’ Under that approach, however, Section 34 would prohibit all legislation imposing any burden whatsoever on employees, regardless of how beneficial to the public that legislation might be. The invalidity of this position becomes strikingly apparent when viewed in the context of existing employment-related laws.” (Emphasis sic.) Id. at 61.
{¶ 67} We recently reiterated that Section 34 does not limit the General Assembly‘s authority to legislate. See Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616, ¶ 11, quoting AAUP II, 87 Ohio St.3d at 61, 717 N.E.2d 286.11
{¶ 68} Decisions of this court after Johnson have therefore conclusively established that Section 34, Article II is not a limitation on the General Assembly‘s authority to legislate.
2. Section 35, Article II of the Ohio Constitution
{¶ 69} Just as Section 34, Article II is phrased as an affirmative grant of power to the General Assembly (“Laws may be passed“), Section 35, Article II also is
{¶ 70} This court construed Section 35 in Holeton v. Crouse Cartage Co. (2001), 92 Ohio St.3d 115, 748 N.E.2d 1111. In that case, we considered whether former
{¶ 71} In rejecting the argument that the concept of a workers’ compensation subrogation statute is repugnant to Section 35, this court in Holeton stated that “Section 35, Article II enables a displacement of the common law only to the extent necessary to provide the injured worker with an automatic recovery. Once payment of workers’ compensation benefits is ensured, the employer may, without any disparagement to the bargained-for rights of the employee, seek to impose the loss upon the ultimate wrongdoer.” Id. at 120.
{¶ 72} We observed that concerns about the statute diminishing or extinguishing the claimant‘s tort recovery were not relevant to an analysis under Section 35 because the statute did not affect the claimant‘s workers’ compensation. “After * * * the statute completes its task, the claimant is always left with the full measure of compensation and benefits to which he or she is entitled under the Workers’ Compensation Act.” Id. We therefore concluded that the former statute did not “disrupt any of the rights or obligations of the claimant and the employer with regard to the payment of statutory workers’ compensation benefits, and the balance of compromise upon which the viability of the workers’ compensation system depends remains intact” and held that the former statute did not violate Section 35. Id., 92 Ohio St.3d at 121.
{¶ 74} This court also recognized that Section 35 is a broad grant of authority to the General Assembly in Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201: “It is within the prerogative and authority of the General Assembly to make [choices] when determining policy in the workers’ compensation arena and in balancing, in that forum, employers’ and employees’ competing interests. See, e.g., Rambaldo v. Accurate Die Casting (1992), 65 Ohio St.3d 281, 288, 603 N.E.2d 975. We may not override [those choices] and [impose our own preferences] on this wholly statutory system.” Id.
{¶ 75} “Moreover, it would be inappropriate for the judiciary to presume the superiority of its policy preference and supplant the policy choice of the legislature. For it is the legislature, and not the courts, to which the Ohio Constitution commits the determination of the policy compromises necessary to balance the obligations and rights of the employer and employee in the workers’ compensation system. Section 35, Article II, Ohio Constitution.” Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, ¶ 23-24.
{¶ 76} As illustrated by the above discussion, Section 35, Article II, like Section 34, Article II, is a grant of authority to the General Assembly, not a restriction of that body‘s authority to legislate.
{¶ 77} This would end our analysis of the constitutionality of the employer intentional-tort statute before us under Sections 34 and 35, except for this court‘s decision in Johnson.
C. Johnson v. BP Chems., Inc.
{¶ 78} The employer intentional-tort legislation construed in Johnson, former
{¶ 80} Having thus restated Brady‘s “holdings”14 regarding Sections 34 and 35 and similarly deciding that the statute at issue violated those provisions, the court
the inclusion of employer intentional-tort legislation in the bill violated Section 15(D), Article II of the Ohio Constitution (the one-subject rule). Id. at 230. After that decision, the General Assembly “simply * * * revived and restated” the same legislation as the version of
{b} For the full text of the version of former
{c} In Section 3 of Am.Sub.H.B. No. 103, 146 Ohio Laws, Part I, 758, the General Assembly declared its intent “to supersede the effect of the Ohio Supreme Court decisions in” Blankenship; Jones; Van Fossen; Pariseau v. Wedge Prods., Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511; Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235, 527 N.E.2d 871; and Fyffe “to the extent that” the provisions of former
{¶ 81} The court in Johnson then went on to detail some of the specifics of former
{¶ 82} In addition, the court in Johnson expressed disapproval of other provisions of the statute, including former
{¶ 83} Three members of this court dissented in Johnson. Justice Cook‘s dissenting opinion, joined by two other justices, noted that there are two types of employer intentional torts. Citing Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d 173, 175, 551 N.E.2d 962, this dissent observed that “direct intent” torts are those in which the actor‘s action brings about the exact result desired, while “inferred intent” torts are those in which the actor believes his action is “substantially certain” to cause a particular result, even if the actor does not desire to bring that result about. Id., 85 Ohio St.3d at 309-310, 707 N.E.2d 1107. “By enacting
{¶ 84} Justice Cook wrote that Sections 34 and 35 of Article II are both solely grants of authority and cannot be read as limiting the General Assembly‘s power to enact legislation in the area of employer intentional torts. Id. at 310-311, 707 N.E.2d 1107. Furthermore, Justice Cook stated that “Section 35, Article II cannot be both inapplicable to employer intentional torts and, at the same time, offended by any legislation regulating such torts. Yet those are exactly the
{¶ 85} Justice Lundberg Stratton‘s dissenting opinion in Johnson characterized the majority‘s holding as striking down “a constitutionally valid attempt by the General Assembly to restore balance between employees’ and employers’ rights in the context of workplace injuries.” Id. at 314, 707 N.E.2d 1107 (Lundberg Stratton, J., dissenting). Justice Lundberg Stratton stated that only injuries caused by truly intentional acts should be recognized as the basis for an intentional-tort action, and that all other injuries should be compensable only through the workers’ compensation system. Id. at 316, 707 N.E.2d 1107.
{¶ 86} Justice Lundberg Stratton also took issue with the majority‘s conclusion, based upon Brady, that former
{¶ 87} As to Section 35, Article II, Justice Lundberg Stratton stated, “The General Assembly had authority to enact
D. Johnson and Stare Decisis
{¶ 88} Metal & Wire asserts that this court in Johnson misconstrued Sections 34 and 35 and that the decision is severely flawed. Metal & Wire asserts that we should hold
{¶ 89} Metal & Wire does not specifically argue that Brady should be overruled. This position recognizes that Brady was a plurality decision with limited stare decisis value for the issues we review in this case. See Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44, 22 OBR 63, 488 N.E.2d 840, overruled on other grounds by Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, 639 N.E.2d 438 (when a plurality opinion yields a syllabus that received the votes of four justices, “the only law emanating from [that decision] is contained in the syllabus“).15
{¶ 90} Metal & Wire‘s principal arguments for overruling Johnson are that the doctrine of stare decisis should be applied with greater flexibility in cases of constitutional adjudication, which cannot be corrected by the legislature as can cases involving statutory interpretation. Metal & Wire further argues that the pragmatic concerns of the second and third Galatis factors have less relevance in cases involving constitutional interpretation and should be applied with more flexibility in such cases.
{¶ 91} We recognize a considerable degree of merit in Metal & Wire‘s arguments concerning the Galatis test‘s application in constitutional adjudication, and we accept that there are serious internal flaws in the analysis of Section 34 and 35 set forth in Johnson, as we discuss below. However, because a different statute was at issue in Johnson, we constrain the interpretation of Section 34 and 35 to the specific context of that case, and we decline to overrule Johnson.
1. Johnson‘s Interpretations of Section 34 and 35, Article II of the Ohio Constitution
{¶ 92} Notwithstanding the clear text of Section 34, this court in Johnson interpreted Section 34 as placing substantive limits on the General Assembly‘s authority to enact employer intentional-tort legislation. However, AAUP II, 87
{¶ 93} Similarly, notwithstanding the clear text of Section 35, this court in Johnson in effect held that any legislative attempt to govern employer intentional torts is per se invalid under that section, asserting that this area of law “is beyond the reach of constitutional empowerment.” Id., 85 Ohio St.3d at 308, 707 N.E.2d 1107, quoting Brady, 61 Ohio St.3d at 634, 576 N.E.2d 722.
{¶ 94} Such an interpretation of Section 35 cannot be reconciled with the plain language of the section or with the historical underpinnings of its enactment. Moreover, Johnson‘s interpretation is inconsistent with the later, and more accurate, view of Section 35 expounded in Holeton, 92 Ohio St.3d 115, 748 N.E.2d 1111, and in Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201. Therefore Johnson‘s analysis of Section 35 can have no stare decisis value in our inquiry. Section 35 is simply irrelevant to the constitutionality of
2. Johnson‘s Reliance on Other Grounds
{¶ 95} In addition to relying on Johnson‘s interpretation of Sections 34 and 35 of Article II to assert that current
{¶ 96} The Johnson court‘s conclusion that former
{¶ 97} The statute we review here differs considerably from the former version of
E. Additional Considerations
{¶ 98} Because the statute under consideration in this case constrains rather than abolishes an employee‘s cause of action for an employer intentional tort, we need not, and therefore do not, consider whether a statute abolishing the common-law tort would be constitutional. Nor do we need to revisit the holding in Blankenship that employer intentional torts are outside the scope of employment in order to evaluate the constitutionality of the instant statute. It is clear from our foregoing analysis herein that the General Assembly is not constitutionally proscribed from legislating in this area of law under Sections 34 and 35, Article II.
{¶ 99}
{¶ 100} “[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.”16
{¶ 101} Reduced to its most basic level, our decision today is grounded in the recognition that Sections 34 and 35 actually mean what they say. Accordingly, for all the reasons set forth above, we hold that
{¶ 102} That is not the end of our inquiry, however.
F. Application of R.C. 2745.01 to this Case
{¶ 103} Because
violating a safety statute, failing to protect employees from crime, refusing to respond to an employee‘s medical needs and restrictions, or withholding information about worksite hazards, the conduct still falls short of actual intention to injure that robs the injury of accidental character.” (Footnotes omitted.) Id. at Section 103.03.
{¶ 104} Nothing in this case implicates
IV. Conclusion
{¶ 105} In conclusion, for the reasons discussed above, we reverse the judgment of the court of appeals, and we hold
Judgment reversed.
MOYER, C.J., and LUNDBERG STRATTON and O‘DONNELL, JJ., concur.
O‘CONNOR, J., concurs in judgment only.
LANZINGER, J., concurs in part.
PFEIFER, J., dissents.
LANZINGER, J., concurring in part.
{¶ 106} Although I agree that
{¶ 108} “To serve the need for predictability, consistency, and clarity in the law, we must be forthright about overruling cases when that is our true intent and is the practical effect of a decision.” Groch, 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377 at ¶ 224 (Lanzinger, J., concurring in part). To do otherwise leads to confusion, leaving parties to struggle to determine what law is controlling.
PFEIFER, J., dissenting.
{¶ 109} The court below relied on Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707 N.E.2d 1107, in determining that
{¶ 110} “Notwithstanding, the General Assembly has enacted
{¶ 111} Déjà vu.
{¶ 112} The court noted in Johnson that although certain aspects of former R.C. 4121.80 were different from the version of
{¶ 113} “Clearly, the constitutional impediments at issue in Brady, concerning former R.C. 4121.80, also apply with equal force to
{¶ 114} Déjà vu.
{¶ 115} In Johnson, this court held that a statutory scheme that allows an employee to recover civil damages only if his or her employer acts deliberately and intentionally creates only an illusory cause of action:
{¶ 116} “By establishing the foregoing standards in
{¶ 117} Déjà vu.
{¶ 118} In all pertinent regards, the statute this court addresses today is the same as the one it addressed in Johnson. Only the result in this case is different. As the majority decision points out in its discussion of the history of workplace intentional torts in Ohio, ever since this court recognized an employee‘s right to civil damages for injuries suffered due to his or her employer‘s intentional acts, the General Assembly has sought to squelch that right. This court‘s recognition of the availability of recovery for workplace intentional torts in Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433
{¶ 119} That this court reaches that decision today is, standing alone, no sin. The common law does, necessarily, evolve and change. The common law, however, should not be ignored; its repudiation should at least be acknowledged. Without overturning years of contrary precedent, this court anoints the General Assembly‘s abolition of workplace intentional torts.
{¶ 120} I disagree with the majority decision. I would follow this court‘s precedent in Johnson, Fyffe, Brady, Jones, and Blankenship and affirm the judgment of the court of appeals. Accordingly, I dissent.
Jeffries, Kube, Forrest & Monteleone Co., L.P.A., David A. Forrest, Jarret J. Northup, and Bradford D. Zelasko; and Dennis A. DiMartino, for appellee.
Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, and Benjamin C. Sassé, for appellant.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for amicus curiae Ohio Association for Justice.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A. Bowman, and Russell Gerney, urging affirmance for amicus curiae UFCW Local 911 and AFSCME Local 2415.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General, Elisabeth A. Long, Deputy Solicitor, and Todd A. Nist, Assistant Solicitor, urging reversal for amicus curiae Attorney General of Ohio.
Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey; Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor; and Bricker & Eckler, L.L.P., Anne Marie Sferra, and Thomas R. Sant, urging reversal for amici curiae Ohio Chamber of Commerce, Ohio Self-Insurers Association, Ohio Chapter of National Federation of Independent Business, and Ohio Manufacturers Association.
White, Getgey & Meyer Co., L.P.A., David P. Kamp, and Carl J. Stich Jr., supporting neither side for amicus curiae Amantea Nonwovens, L.L.C.