Magda v. Greater Cleveland Regional Transit Auth.Magda v. Greater Cleveland Regional Transit Auth.
David R. Grant
ATTORNEYS FOR APPELLEES GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY AND JOHN McLAUGHLIN
Anna B. Hlavacs Kathleen M. Minahan Greater Cleveland Regional Transit Authority Root-McBride Building, 6th Floor 1240 West 6th Street Cleveland, OH 44113
ATTORNEY FOR OHIO ATTORNEY GENERAL RICHARD CORDRAY
Robert Eskridge, III Office of the Ohio Attorney General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, OH 43215
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Plaintiffs-appellants, Jonel and Liliya Magda, appeal from two separate orders that terminated their personal injury action against defendants-appellees, Greater Cleveland Regional Transit Authority (“RTA“) and John McLaughlin (“McLaughlin): a
I
A
{¶ 3} We engage in a three-tiered analysis to determine whether a political subdivision is entitled to immunity from civil liability pursuant to
{¶ 5} The second tier of the political subdivision immunity analysis requires us to consider whether there are any applicable defenses under
{¶ 6} “In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to
{¶ 7}
B
{¶ 8} Magda argues that
{¶ 9} “Every employer shall furnish employment which is safe for the employees engaged therein, and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every
{¶ 10}
{¶ 11} “No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe.”
{¶ 12} In Thayer v. W. Carrollton Bd. of Edn., Montgomery App. No. 20063, 2004-Ohio-3921, the Second District Court of Appeals considered and rejected the same arguments made by Magda. Thayer, an employee of the West Carrollton Board of Education, brought an intentional tort action against the board alleging that she had been exposed to toxic mold. The board sought summary judgment under
{¶ 13} “Clearly,
{¶ 15} We agree with Thayer‘s conclusion – neither
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{¶ 16} Magda also argues that
{¶ 17} “(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.
{¶ 18} “(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.
{¶ 20} “(D) This section does not apply to claims arising during the course of employment involving discrimination, civil rights, retaliation, harassment in violation of
{¶ 21} As previously noted, the courts have consistently found that political subdivisions are immune from intentional tort claims unless, as relevant here, liability is “expressly” imposed by a section of the Revised Code.
D
{¶ 22} Finally, Magda argues that there is an exception to RTA‘s immunity under
{¶ 23} Courts have held that
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{¶ 24}
{¶ 25} RTA is a political subdivision and enjoys immunity under
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{¶ 26} Magda next argues that the court erred by finding that political subdivision immunity, as codified in
{¶ 27} As RTA notes, political subdivision immunity is the subject of clear and unambiguous precedent that finds it constitutional in all respects. At one time, three justices of the supreme court expressed their view that they would abolish sovereign immunity on grounds that it violated the right to a jury trial. See Butler v. Jordan (2001), 92 Ohio St.3d 354, 372, (Douglas, J., with Sweeney & Pfeifer, JJ., concurring in opinion). However, that view
{¶ 28} The supreme court recently stated its view on the subject in O‘Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, when it refused to consider the constitutionality of
III
{¶ 29} For his third assignment of error, Magda argues that the court erred by granting summary judgment to John McLaughlin on the intentional tort claim.
{¶ 30} Summary judgment may issue when, after viewing the evidence in a light most favorable to the nonmoving party, there is no genuine issue as to any material fact and reasonable minds could conclude only that judgment must issue as a matter of law. See
B
{¶ 31} In the context of workplace intentional torts,
{¶ 32} The
{¶ 33}
{¶ 34} The exclusive nature of the workers’ compensation remedy became somewhat less clear in 1959, however, after the General Assembly revised
{¶ 35} Having ruled that the workers’ compensation laws did not bar intentional tort claims against employers, the supreme court next addressed the concept of what constituted “intent” to injure. In Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, the supreme court held that “[a]n 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.” Id. at paragraph one of the syllabus. The supreme court went on to state that a “specific intent to injure is not an essential element of an intentional tort where the actor proceeds despite a perceived threat of harm to others which is substantially certain to occur, not merely likely, to occur.” Id. at 95. By focusing on the element of “substantial certainty,” the supreme court distinguished “a merely negligent act from intentionally tortious conduct.” Id.
{¶ 36} The Jones standard of “substantial certainty” proved difficult for the courts to administer because some confused mere knowledge and appreciation of a risk as intent, even though mere knowledge and appreciation of a risk fell short of being a substantial certainty. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, the supreme court conceded that it had left the law in a posture where “trial courts have been led to misconstrue [a ‘substantial certainty‘], transforming negligence cases
{¶ 37} “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 not just a high risk; 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.”
{¶ 38} The supreme court went on to hold:
{¶ 39} “To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligent. Where the risk is great and the probability increases that particular consequences may follow, then the employer‘s conduct may be characterized as recklessness. As the probability that the
{¶ 40} With these decisions as a backdrop, the General Assembly enacted
{¶ 42} With
{¶ 43} “1. 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
{¶ 44} Fyffe‘s attempt to clarify the standard for intentional conduct did not sit well with the General Assembly.2 In 1993, the General Assembly again enacted comprehensive reforms of the workers’ compensation laws including, as relevant here, former
{¶ 46} In addition to invalidating
{¶ 47} Undeterred by the rebuke in Johnson, the General Assembly enacted a new version of
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{¶ 48} Magda set forth two separate intentional tort claims against McLaughlin — “common law” and statutory under
{¶ 49} However, Magda‘s intentional tort claims raise the issue of whether the definition of “substantially certain” set forth in
D
{¶ 50}
{¶ 51} RTA employed Magda as a maintenance technician. McLaughlin, a rail facilities supervisor for RTA and a licensed electrician, acted as Magda‘s direct supervisor. Magda is not a licensed electrician.
{¶ 52} Viewed most favorably to Magda, the facts show that RTA wished to improve the exterior lighting at one of its substations. When discussing lighting improvements during the planning stages of construction, McLaughlin and his supervisor noted that existing in-ground wiring for the exterior lighting had proven unsatisfactory. They agreed that the wiring
{¶ 53} A two-person work crew began installation of the conduit without incident. When one of the members of that crew took vacation time, McLaughlin assigned Magda and his helper to the job. On the day of his injury, Magda reported to RTA‘s central rail station and attended a “toolbox” or safety meeting conducted by McLaughlin. He and the helper then drove to the substation work site. The height of the wall (ranging from eight to 12 feet) required them to erect a make-shift scaffold consisting of two ladders and an aluminum platform strung along the third rung of each ladder. Magda climbed onto the platform and saw a standard 10-foot piece of conduit resting on top of the wall.
{¶ 54} It is unclear exactly what happened next, for Magda had no independent recollection of events and his helper had been looking away. McLaughlin speculated that the wrong end of the conduit had been laid before Magda — the conduit had one coupling end that would fit into the
E
{¶ 55} The Fyffe standard for employer intentional torts requires a showing of (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.
{¶ 56} We must not, however, construe these elements too broadly: “‘the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the
{¶ 57} The Fyffe elements are conjunctive — the failure to establish any one of the elements is grounds for summary judgment. Fleming v. AAS Service, Inc., 177 Ohio App.3d 778, 2008-Ohio-3908, at ¶62.
1
{¶ 58} The first element of the Fyffe test requires us to determine whether McLaughlin had actual knowledge of the dangerous condition. The mere existence of a dangerous condition alone is not sufficient to satisfy the first prong, nor is knowledge of the mere possibility of a dangerous condition sufficient. “The employee bears the burden of proving by a preponderance of the evidence that the employer had actual knowledge of the exact dangers which ultimately caused the injury.” Reed v. BFI Waste Systems (Oct. 23, 1995), Warren App. No. CA95-06-062, citing Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172.
{¶ 60} McLaughlin argues that he did not have knowledge of a dangerous process, claiming that he simply assigned Magda to install harmless aluminum conduit and had no particularlized knowledge of overhead conductor clearances. Yet McLaughlin acknowledged what he called the “10-foot rule” — that being the distance one should maintain from an overhead conductor. By creating a 10-foot safety buffer between the worker and high-voltage equipment, an inference arises that McLaughlin, a licensed electrician, must have known that the high-voltage equipment could be dangerous. In any event, regardless whether McLaughlin had ever dealt
2
{¶ 61} The second element of the Fyffe test is 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. The key to this element is not the degree of harm that will ensue if the employee is subjected to the dangerous process or condition, but whether the employer knew that by merely subjecting the employee to the dangerous condition that harm was substantially certain to follow. An employee cannot establish an employer‘s intentional tort simply by showing that a known risk later blossomed into reality. Rather, “the level of risk-exposure [must be] so egregious as to constitute an intentional wrong.” Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172. Hence, the employee must show more than just a dangerous condition in order to
{¶ 62} Magda has not met the second prong of the Fyffe test. There is no evidence to show, despite the danger posed by the high-voltage equipment, that McLaughlin had any reason to know that Magda was substantially certain to be injured while installing the conduit. Magda knew how to install conduit, and had done so on other jobs. He implied that the task of installing conduit at the substation was free from worry about electricity because “[c]onduit is nothing but empty tubing. There‘s no power involved whatsoever.” Another work crew had spent several days installing the same conduit in the same location without incident. McLaughlin had been present at the site at least twice as this other work crew performed their work and noticed nothing about the proximity of the electrical equipment that would make him think that addditional safety measures were required.
{¶ 64} If we substitute the electrical transformers for the lion and the wall for the lion‘s cage, we come to the same conclusion. Plainly, other workers had installed conduit without incident at the same job site as Magda, safely separated from the electrical equipment by the wall. But when Magda extended the length of conduit over the wall, he metaphorically put his arm into the lion‘s cage. Even doing so, there was no evidence offered to show that his injury was certain to follow.
{¶ 66} In the end, there is no evidence that McLaughlin had actual knowledge that one of his workers would twist a 10-foot piece of conduit over his head, extend it across the wall and accidently touch a live, high-voltage electrical transformer. The high-voltage equipment might have been dangerous, but the assigned task was not. McLaughlin had no reason to know that Magda‘s injury was substantially certain to occur.
3
{¶ 67} The third element of the Fyffe test is whether the employer, knowing that an injury was substantially certain to occur, acted to require the employee to continue to perform the dangerous task. Given our finding that Magda failed to establish the second element of the Fyffe test, we need not consider this issue, as the failure to establish even one of the Fyffe elements is enough to warrant summary judgment.
Judgment affirmed.
It is ordered that appellees recover of appellants their costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
MELODY J. STEWART, PRESIDING JUDGE
ANN DYKE, J., and
LARRY A. JONES, J., CONCUR
Notes
1995 Ohio Laws 43, Section 3, 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 (decided March 3, 1982); Jones v. VIP Development Co. (1982), 15 Ohio St. 3d 90 (decided December 31, 1982); Van Fossen v. Babcock & Wilcox (1988), 36 Ohio St. 3d 100 (decided April 14, 1988); Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St. 3d 124 (decided April 13, 1988); Hunter v. Shenago Furnace Co. (1988), 38 Ohio St. 3d 235 (decided August 24, 1988); and Fyffe v. Jeno‘s, Inc. (1991), 59 Ohio St. 3d 115 (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
There are two separate appeals raising this issue: Kaminski v. Metal & Wire Prods. Co., 119 Ohio St.3d 1407, 2008-Ohio-3880, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 119 Ohio St.3d 1452, 2008-Ohio-4562.