What’s On Their Minds? Employer Intentional Torts and Sovereign Immunity. Samspon v. Cuyahoga Metropolitan Housing Authority

Update: the merit decision in this case was handed down February 16, 2012. Read the analysis of that decision here.

On Sept 20 the Ohio Supreme Court heard oral argument in Sampson v.  Cuyahoga  Metropolitan Housing Authority, case #2010-1561.  The issue is whether an employee of the Cuyahoga Metropolitan Housing Authority —a political subdivision—could sue his employer for several intentional torts that arose out of his being wrongly arrested at work for alleged work-related thefts. For a further overview, please see the oral argument preview of this case.

Darrell Sampson, along with 12 other CMHA employees, was very publicly arrested in front of his fellow employees for theft involving misuse of company gas cards.  However, the charges against Sampson were dropped several months later, and he filed suit against the CMHA for intentional infliction of emotional distress, abuse of process, and negligent misidentification (the parties disagreed about whether this last tort claim was an intentional one).

R.C. 2744.09(B) provides that there is no immunity for a political subdivision in a civil action brought by an employee for any matter arising out of the employment relationship.

Counsel for the CMHA argued that intentional torts by definition do not arise out of the employment relationship, so the agency is entitled to immunity in this case.  He argued that there is a very important distinction between torts that happen at the workplace and torts that arise out of the employment relationship. He argued that the three claims were common law claims that arose from Sampson’s arrest, not from his employment. Just because common law injuries occurred at the workplace as a result of actions by the employer does not mean they arose out of the employment relationship.

Counsel for Sampson argued that under the plain language of the statute, which needs no interpretation, CMHA is not immune from these intentional tort claims which clearly arise out of the employment relationship between Sampson and the agency, and thus falls squarely within the language of the exception to immunity codified at RC 2744.09(B)

Wait a Minute—Aren’t We Overlying Workers’ Compensation Law onto Sovereign Immunity?

Justice Lanzinger really cut to the chase in this case.  She asked whether CMHA’s argument that an intentional tort by definition will always be outside the employment relationship and never arise from it, was engrafted from the law of workers’ compensation onto an entirely different body of law. She later asked if the agency’s  immunity argument was about all torts, or just intentional torts.

Come On, This Happened At Work, Didn’t it?

Justice Cupp asked both sides if there is a distinction between arising out of employment or out of the employment relationship. (I took this to mean he was asking if there is a difference between the location of a tort and whether the injury is one that is a normal and expected workplace injury.) If there is a difference, he asked, which is wrongful discharge?  Failure to keep a safety guard on a machine?

Justice McGee Brown, asked, surely this all came from employment? CMHA has its own police force.  Sampson was arrested at work in front of all his co-workers

Chief Justice O’Connor noted that Sampson was arrested in front of all his co-workers, and did the perp walk in front of them all.

Justice O’Donnell asked, surely we must conclude that use of the gas card was connected to his employment.

Chief Justice O’Connor asked why CMHA’s lawyer kept saying that these tort claims did not arise out of employment, when but for Sampson’s position at the CMHA,, none of these claims would have arisen.  She suggested that appellant’s counsel would be better off saying that what happened was outside the normal bargained for employer/employee relationship, just like removing a piece of safety equipment would not be part of the bargained for relationship, rather than saying this didn’t arise out of employment.

Will the Plaintff have no Remedy?

Justice Stratton asked if the Court were to rule in the agency’s favor and find these torts did not arise out of employment, but Sampson could still prove that the torts were committed, was he left with any remedy?

Were the plaintiff and the defendants in the same lawsuit?

     Justice Pfeifer commented that rarely does the Court see briefs in which the factual statements were so diametrically opposed, and really told the agency’s lawyer how much this upset him, pressing on whether there was any dispute over whether those arrested were called out in front of 200 of their fellow workers.

Common Law or Statutory Interpretation

Justice Lanzinger asked Sampson’s lawyer if it would make any difference if this were a matter of common law,  rather than statutory interpretation.

Justice Cupp, who seems to be the justice most interested in the historical background of  state constitutional and common law doctrines (see, for example, his decision in Kaminski v. Metal & Wire Pds. Co., 2002-Ohio-1027) asked how the situation would have been covered under the common law immunity that existed prior to the statute, which was enacted to partially restore sovereign immunity after it had been abrogated by the the court. He asked both counsel about the rule followed at common law.

How it Looks From The Bleachers

I’m going to call this one for Sampson.  I think Justice Lanzinger really hit the nail on the head.  The agency’s key argument that an intentional tort by definition does not arise out of the employment relationship is taken lock, stock, and barrel from the law of workers’ compensation.  In 1982, in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, the Court held that definitionally intentional torts do not arise out of employment..  The syllabus law in Brady v. Safety Kleen Corp., (1991), 61 Ohio St.3d 624  held that a cause of action brought by an employee alleging an intentional tort by the employer in the workplace is not preempted by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741. While such cause of action contemplates redress of tortious conduct that occurs during the course of employment, an intentional tort alleged in this context necessarily occurs outside the employment relationship.

The current court has really moved away from Blankenship, Brady, and their progeny even  in the workers’ compensation field, particularly in Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027, authored by Justice Cupp.  This court seems very unlikely to engraft the divisive law of employer intentional torts onto the sovereign immunity exception statute. It wouldn’t be surprising if Justice Cupp wrote about the different historical paths of the two.

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