Oral Argument Preview: It’s Baaaack–The Employer Intentional Tort. Houdek et al. v. ThyssenKrupp Materials, N.A.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument of this case here.

On June 20, the Supreme Court of Ohio will hear oral argument in the case of Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076.  The first issue on appeal is whether an employer intentional tort claim under R.C. 2745.01 is limited to those situations where an employer acts with specific intent to injure the employee.  The second issue is whether a plaintiff may establish an employer’s specific intent to injure by proof of what a reasonable employer may believe. For background on the employer intentional tort, read this post.

Bruce Houdek was employed at ThyssenKrupp’s warehouse, working under a temporary light-duty restriction as a consequence of a prior injury. ThyssenKrupp nevertheless ordered Houdek to tag inventory on a scissor lift. ThyssenKrupp also allegedly ordered the warehouse’s sideloader operator to travel at the machine’s maximum speed when retrieving materials from the narrow warehouse aisles. Houdek told the sideloader operator where he would be working, but the operator forgot Houdek was working in the aisle, and could not see him because of the design of the machine.  The sideloader operator crushed Houdek against the aisle racks. Houdek lost a leg due to the injury. According to Houdek, a few days before the accident, the sideloader operator had  expressed his concerns to ThyssenKrupp management about the dangers of operating the sideloader in a warehouse aisle when another employee was working in the same aisle on foot.

Houdek instituted this action against ThyssenKrupp, seeking damages for his injuries. The trial court granted summary judgment in favor of ThyssenKrupp, finding that Houdek was unable to prove the requisite intent to injure.

Subsection (A) of R.C. 2745.01 states that liability of an employer for an intentional tort requires that the plaintiff prove 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.” Subsection (B) further explains that “substantially certain” for the purposes of the statute means “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”

In reversing the trial court for applying the definition of substantially certain set forth in R.C. 2745.01(B), the Eighth District Court of Appeals, found that “it could not harmonize” the definitions in the two sections because “substantially certain” and “deliberate intent to injure” cannot mean the same thing, and thus must have been the result of “a scrivener’s error”.  The appeals court also held that the requisite intent to injure can be proven by what a reasonable, prudent employer would believe.

ThyssenKrupp first argues that the Court of Appeals erred in ignoring the statutory definition of “substantially certain”,  which was no mere “scrivener’s error”, and improperly ignored the Ohio Supreme Court’s key holdings in Stettler v. R.G. Corman Derailment Services, LLC, and Kaminski v. Metal and Wire Co., which upheld the constitutionality of R.C. 2745.01.   In those two key cases, ThyssenKrupp argues, the high court found that the legislatative intent was to limit recovery for the common law “substantial certainty” intentional tort, not to codify the common law cause of action first established in Blankenship v. Cincinnati Milacron Chem. Inc. There is absolutely no basis for the “scrivener’s error” holding. The Court of Appeals view that the General Assembly meant to establish different burdens of proof under subsections (A) and (B) is incorrect.  Both require specific intent to cause injury.  To hold otherwise is to ignore the express language of the statute, the historical development of the legislation, to oppose established principles of statutory construction, and to break from Supreme Court precedent.

ThyssenKrupp next argues that the Court of Appeals failed to follow the appropriate test to establish whether an employer acts with the intent to injure an employee. By applying a “reasonable, prudent employer” standard, the Court of Appeals applies a lesser standard than that which has existed under the Supreme Court of Ohio’s previous decisions. The law in Ohio, according to ThyssenKrupp, is well-settled that where a statute requires proof of a party’s specific intent, the application of an objective “reasonable person” test is inappropriate. Rather than focusing on the mindset of the alleged employer/ tortfeasor as the statute has been interpreted to mandate, the Court of Appeals shifted the focus to the mindset of a reasonably prudent employer.  Use of this lesser objective standard is incorrect.

Finally, ThyssenKrupp argues that the facts of the case depict nothing more than a simple accident caused by an employee’s forgetfulness, not an employer’s intent to injure an employee, and should not be construed to raise an issue of fact under the specific intent standard necessary to bring an intentional tort claim. As such, the Court of Appeals’ decision should be reversed and summary judgment reinstated.

Houdek concedes that his position before the high court isn’t aligned with the reasoning of the court of appeals, but that regardless of its reasoning, the appeals court reached the correct result and should be affirmed. He agrees that the legislature intended to restrict the common law employer intentional tort, but argues that it is now clear from the statute that there is more than one way to prove it.

Houdek first argues that his  intentional tort claim was never limited to the deliberate intent requirements of subsections (A) and (B) of the statute, but  always included a claim under subsection (C) for removal of a safety device (specifically the failure to use warning safety cones) to establish the requisite intent to injure. He argues subsection (C) applies to his case.

As for the interpretation of the statute, Houdek argues for a reading of the plain language of the statute over the “scrivener’s error” approach the Court of Appeals took. Houdek suggests that the legislature’s use of “or” in Subsection (A) requires no interpretation.  R.C. 2745.01 contains two separate legal standards: either the employer acted with the intent to injure or with the belief that the injury was substantially certain to occur/deliberate intent. The statute does not require proof of both, does not contain the word “specific”, and contains two separate and distinct levels of intent—not just specific intent to injure– to establish an employer intentional tort.

Houdek also concedes that use of a “reasonable employer” test is contrary to what the statute requires.  He argues that in an employer intentional tort case, intent can be proven by circumstantial evidence, gathered from all the facts and circumstances.  But he argues that the court of appeals conclusion reversing summary judgment was correct, regardless of its reasoning, because he presented sufficient factual evidence, including the deliberate removal of its safety cones, for the jury to infer ThyssenKrupp’s subjective intent to injure him.

Both the Ohio Association for Justice (“OAJ”) and the Ohio Association of Civil Trial Attorneys (OACTA)  have filed amicus briefs on behalf of their respective constituencies—OAJ in support of Houdek, OACTA in support of ThyssenKrupp.

Student Contributor: Elizabeth Chesnut

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