Practice Areas

Employer Intentional Tort Claims in Ohio

By Kevin O. Kadlec

The ability of an Ohio employee to bypass the worker's compensation system and sue his or her employer for an intentional tort has only been available to Ohio employees since 1982, even though worker compensation in Ohio is now a century old. In Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), the Ohio Supreme Court held that employers' legal immunity from lawsuits had always been for negligent acts, not intentional conduct. Blankenship started a process in Ohio that found the courts and the legislature playing a game of hopscotch giving workers opportunities to sue for "workplace intentional tort" and then limiting them. Substantial jury awards emerged in the next decade. The legislature reacted and altered the law several times to limit the type of workplace accidents or injuries workers could sue for beyond their workers' compensation benefits. But the Supreme Court in 1991 and again in 1999 said those previous laws were unconstitutional.

The legislature in 2005 again passed a law to limit employer intentional tort law suits. The legislature refined the concept of "intent" concerning employers' intentional tort in Ohio when it enacted Ohio §R.C. 2745.01. The definition "intentional tort" now means that an employer shall not be liable to an employee unless the plaintiff proves that the employer committed a tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. The legislature defined "substantially certain" to mean that an employer needs to act with "deliberate intent" to cause an employee to suffer an injury, a disease, a condition, or death. By entering "deliberation" into the course of action by an employer, the legislature ensured that employers would be protected from jury verdicts, excerpt in very narrow circumstances.

In Kaminski vs. Metal & Wire Products Co, 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, the Ohio Supreme Court upheld the 2005 legislation as constitutional. Kaminski held that the Ohio Constitution grants the legislature wide authority to enact laws regulating wages, hours and workplace conditions, and to adopt laws in order to balance the rights and obligations of employers and employees in the operation of the state workers' compensation system.

The plaintiff bar's last attempt to loosen up the Ohio legislature, which provides near immunity to employers under R.C. 2745.01, culminated in the recent decision by the Ohio Supreme Court in Houdek v. ThyssenKrupp Materials, 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, decided on December 6, 2102. In Houdek, the Court confronted the question of whether a claimant bringing an employer intentional tort claim is required to prove that the "employer acted with a deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." The employee worked in the aisle of a warehouse where he sustained severe injuries when a co-worker operating a mechanical mobile side loader struck him. Houdek asserted that the company had deliberately intended to injure him by directing him to work in the aisle with knowledge that injury was substantially certain to occur. The theory was that by "intentionally" not providing reflective vests, orange cones, safety gates and adequate lighting the employer knew an injury was substantially certain to occur. Days before the accident, the company was warned of the danger posed to workers in the aisles. This evidence was insufficient to prove the employer had the intent to injure to plaintiff. The Court rejected the use of an objective test - what a reasonable prudent employer would believe; and adopted a subjective test - what the employer actually believed. The Court affirmed the need to show that the employer has the specific intent to injure the plaintiff. Thus, even in situations where the employer puts an employee in harm's way resulting in a tragic accident, and the evidence shows that the accident may have been avoided had precautions been taken, that does not prove the employer deliberately intended to injure the plaintiff.

The recent common law interpreting the intentional torts obviously bodes well for employers in Ohio. It creates immunity in practice, because a plaintiff must prove actual specific intent to injure, which is very difficult standard to meet. Our employer clients can rest assured that if accidents occur on the job, even when the employer is at fault, the worker compensation system is in place to provide certainty and protection from excess liability. On the other hand, the fact that employers now have near immunity from intentional torts impacts our practice in asbestos litigation for clients who sold or supplied asbestos containing products to employers, in cases where the plaintiff also sues them for intentional tort, which is very common in asbestos litigation. With these recent statutes and case law, many employers can expect the claim to fail and be dismissed on summary judgment. Thus, one less party would be expected at trial to potentially share in a verdict in an asbestos case, even though employers are under a duty to protect their employees from harm under general welfare statutes in Ohio, state regulations and federal requirements under OSHA.

However, that is not the case in Cuyahoga County where most of Ohio's asbestos cases are tried. The judges have consistently allowed the plaintiff's employer to appear on the jury verdict form, regardless of whether an intentional tort claim is asserted or not. Due to recently enacted statutes that require juries to apportion shares of liability, the judges believe that the employer can be accountable for injuries it had a hand in, even when a defendant asserts employer liability under the objective test. Since the 1940s, under the general welfare statutes and regulations, an employer has a duty to warn and protect its employees from hazards that arise from exposure to asbestos that it knew or should have know existed in the plaintiff's workplace. Product liability defendants have successfully named employers on the jury verdict form in Cuyahoga County in an asbestos case. The plaintiffs' bar opposes the practice by asserting that the product liability defendant must prove the new elements of the intentional tort to name the employer on the verdict form. The judges in Cuyahoga County disagree. The judges believe that the compensation the plaintiff is already receiving from his workers compensation claim would amount to double dipping if the defendant at trial were not given the opportunity to prove the employer is at fault in comparison to the alleged harm committed by the sellers of asbestos products the plaintiff was exposed to at work. Also, the court believes that all shares of liability for all the actors that can be proven to have contributed to the plaintiff's injury should be considered in the jury's deliberations. This makes sense, because the employer still has the benefit of the workers compensation immunity and will be protected from excess liability. But the other parties in the lawsuit get a fair chance to prove who should share in the potential liability to the plaintiff under the apportionment statutes.