In Sharper Focus: the Employer Intentional Tort

The case of  Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076   is all about the employer intentional tort, as if any more could be said about this topic.  To paraphrase President Ronald Reagan, here we go again.

Let’s start with some very basic fundamentals, probably known to all (but as a law professor I can’t resist)

Employees cannot sue their employers for negligent workplace injuries or occupational diseases. In return for giving up these rights, employees get compensation for these injuries and illnesses without having to prove fault, but accept lower benefits for the certainty of recovery. Employers give up their defenses, but don’t have to pay any damages and are protected from unlimited liability

This trade-off was Constitutionalized, initially in 1912, into Article II Section 35 of the Ohio Constitution. In January of 1924, Article II Section 35, was amended to make the workers’ compensation laws the exclusive remedy for workplace injuries and diseases.

The legislature also passed R.C. 4123.74 codifying the exclusivity of remedies provision. Complying employers couldn’t be sued for workplace injuries.

And so it seemed this was a very settled principle of law.

In 1982 came the bombshell. In Blankenship v. Cincinnati Milacron Chemicals, Inc., the Ohio Supreme Court created an exception to this fundamental principle of law.  It created a common law employer intentional tort cause of action.

The Court held that an employee is not precluded either by Article II Section 35 or by R.C. 4123.74 from bringing an intentional tort claim against his or her employer because injuries received by intentional conduct are not incurred in the course of employment .

No justice who participated in this case is still alive.

What happened next might be described as the Workers’ Compensation equivalent of the Thirty Years’ War.

First, the Court struggled with defining the contours of the employer intentional tort.  Then the legislature reacted by trying to limit the tort statutorily.  And the Court responded, quite angrily at times, striking down these legislative attempts.

Two years after Blankenship was decided, in Jones v. VIP Development Co., a 4-3 Court held in the syllabus that 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”. 

For purposes of simplicity and clarity, think of this as two brands of the employer intentional tort– direct intent and substantial certainty. The “substantially certain to occur” definition is what became particularly problematic over time.

In Jones, the Court explicitly rejected the proposition that an employer’s specific intent to injure is a necessary element of an employer intentional tort. Keep your eye on this ball!

The substantial certainty intentional tort grew very elastic. Many trial courts began accepting negligence and recklessness actions as substantial certainty intentional tort claims.

The legislature fought back.  It passed RC 4121.80, which took effect in August of 1986, defining “substantially certain” as requiring that an employer act with deliberate intent to cause an employee to suffer injury, disease, condition, or death.

RC 4121.80 was challenged in Van Fossen v. Babcock and Wilcox Co. At this point Justices Craig Wright and Andy Douglas had joined the court, and Justice Douglas took up the cause of the employer intentional tort with a vengeance. 

But in Van Fossen, authored by Justice Holmes, the Court did not consider the constitutionality of the new statute because the Court decided it could not be applied retroactively to the case because it was substantive, not procedural, even though the statute expressly states that it was to be applied retroactively. Because the Court found that R.C. 4121.80 could not be applied retroactively to this case, the Court did NOT deal with the constitutionality of that statute. That took three more years. Instead, the Court tried to clarify what was necessary to prove a common law intentional tort. In Van Fossen the Court adopted Section 8(A) of the Second Restatement of Torts and Section 8 of Prosser and Keaton on Torts as the definition of a common law intentional tort in Ohio.

Next came Fyffe v. Jeno’s Inc. in 1991, also written by Justice Holmes.  The Court slightly tweaked the Van Fossen syllabus to clarify the definition of the substantial certainty intentional tort.  At this point the elements and proof necessary for a common-law employer intentional tort were those set forth in Van Fossen, as modified slightly in Fyffe. 

The Court finally considered the constitutionality of R.C. 4121.80, with its very strict definition of employer intentional tort, in 1991, in Brady v. Safety CleanThis is when the Court’s hostility toward the legislative effort really began to intensify. In Brady, the Court declared R.C. 4120.80 unconstitutional en toto because it exceeded the scope of legislative authority granted to the General Assembly under the Ohio Constitution.

Brady was a 3-1-3 plurality opinion, written by Justice Asher Sweeny.

Three justices—Douglas, Sweeney, and Resnick– believed that sections 34 and 35 of Article II of the Ohio Constitution were a restriction or limitation on the legislature’s authority to legislate in this field.  They believed that Section 34, the General Welfare Clause, only allows laws that further the comfort, health, safety, and general welfare of employees.  Since R.C. 4121.80 burdens an employee’s right to bring a common law employer intentional tort claim, it conflicts with section 34.  They also believed that Section 35 only authorizes the enactment of laws for injuries and occupational diseases that occur within the employment relationship, and intentional torts will always take place outside that relationship.

In a separate concurrence, Justice Herbert Brown disagreed that the General Assembly had no power to legislate in the area of employer intentional torts. He found that it did, in the exercise of its police power. But Brown found that R.C. 4121.80 violated provisions other than section 34 and 35, particularly the right to trial by jury by requiring that the Industrial Commission, rather than a civil jury, determine damages in an intentional tort action.

The legislature tried again.  It enacted R.C. 2745.01, effective November 1 1995. This statute again recognized both a direct intent and a substantial certainty intentional tort.  But it defined substantial certainty 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.” In this bill, the legislature also declared its intent to supersede almost all the high court’s decisions in this area from Blankenship forward.

The constitutionality of R.C. 2745.01 came before the Court in Johnson v. BP Chemicals Inc. in 1999.  The wrath of the Court in striking down this law was intense.  In a very confrontational 4-3 decision authored by Justice Douglas, joined by the liberal block of Justices Resnick, Francis Sweeney and Pfeifer, the Court found R.C. 2745.01 unconstitutional en toto, mostly because it violated Article II Section 34. Justice Douglas used some very harsh language in this decision:

“In Brady, the court invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that we had made it abundantly clear that any statute created to provide employers with immunity from liability for their intentional tortious conduct cannot withstand constitutional scrutiny. * * * Notwithstanding, the General Assembly has enacted R.C.2745.01, and, again, seeks to cloak employers with immunity. In this regard, we can only assume that the General Assembly has either failed to grasp the import of our holdings in Brady or that the General Assembly has simply elected to willfully disregard that decision. In any event, we will state again our holdings in Brady and hopefully put to rest any confusion that seems to exist with the General Assembly in this area… RC 2745.01 created a cause of action that is simply illusory…The statutory requirements are so unreasonable and excessive that the chance of recovery of damages by employees for intentional torts committed by employers in the workplace is virtually zero.”

And yet, in Johnson, in the dissents, we begin to see the germ of what is going to become the majority position in Kaminski v. Metal & Wire Prods. Co.that Sections 34 and 35 of Article II are both grants of authority and cannot be read as limiting the General Assembly’s power to enact legislation in the area of employer intentional torts.

As all the justices in the Johnson majority except Pfeifer begin to retire because of age, things began to change.  So the legislature tried again.  It enacted a new version of R.C. 2745.01, which became effective April 7 2005.  This is the statute challenged in Kaminski and its companion case, Stetter et al. v. Corman Derailment Services, LLC, et al.

 The statute again recognizes both a direct intent and a substantial certainty employer intentional tort.  It then defines substantial certainty to mean that an employer acts with “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” That this is virtually exactly the same definition as in R.C. 4121.80, which was struck down in 1991 in Brady v. Safety Clean.

In R.C. 2745.01, both the direct intent and substantial certainty employer intentional torts required the employee to prove the employer acted with specific intent or deliberate intent to cause injury.  For this reason the Seventh District Court of Appeals struck it down.  A 6-1 Supreme Court, in a decision written by Justice Cupp, reversed this decision in Kaminski.

In Brady and in Johnson, the Court had held that Article II Section 34 placed substantive limits on the General Assembly’s authority to enact employer intentional tort legislation.  A majority of the court now completely disagrees with this, believing that Article II Section 34 is a broad grant of authority to the General Assembly, not a limitation on legislative power.

So in Kaminski, the Court upheld the constitutionality of RC 2745.01, but didn’t overrule Johnson. Justice Lanzinger wrote a separate concurrence to express her disagreement with this facet of the opinion.

Applying the statute to the case before it in Kaminski, the Supreme Court held that nothing in the record demonstrated that the plaintiff could prove that her employer acted with the specific or deliberate intent to injure her.

Justice Pfeifer, the sole remaining member of the Johnson majority, strongly dissented, writing that “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. “

In Stetter, the companion case to Kaminski, the Court also held that while R.C. 2745.01 significantly limited the common law employer intentional tort, it did not abolish it altogether. To which lone dissenting Justice Pfeifer suggested that there was really nothing left of it.

This is the backdrop to understanding the issues in the Houdek case.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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