On December 6, 2012, the Supreme Court handed down a merit decision in Houdek v. ThyssenKrupp Materials, N.A., Inc., 2012-Ohio-5685. The case was argued June 20, 2012. In a 6-1 decision authored by Justice O’Donnell, the Court held that there was no evidence of an employer intentional tort in this case, and reinstated the trial court’s judgment in favor of ThyssenKrupp. Justice Pfeifer dissented. (I’ve sure been writing that a lot!)
Bruce Houdek worked at ThyssenKrupp’s warehouse. He was assigned to light duty because of a previous injury. The plant manager asked him to help re-label inventory on warehouse storage racks, which meant Houdek would be working in the same aisles as sideloaders pulling goods from the racks. A sideloader travels with the forks facing the merchandise. The operator faces the rack rather than the direction of travel.
At a shift meeting, one of the sideloader operators named Krajacic asked the plant manager if he should avoid pulling merchandise in aisles where re-labeling had begun, but the manager said that was not necessary.
Company policy required employees doing work like Houdek’s to warn sideloader operators before they started working in a particular aisle. Houdek told Krajacic that he would be working in a particular aisle. Krajacic apparently forgot. He drove the sideloader down the aisle where Houdek was working. There was no way Houdek could escape. The sideloader pinned him against a scissor lift he had been using, breaking his leg and shattering his ankle.
Houdek Files an Employer Intentional Tort Claim
Houdek sued ThyssenKrupp, claiming the company had deliberately intended to injure him by sending him to work in the aisle knowing that injury would be certain or substantially certain to occur. The trial court granted summary judgment to ThyssenKrupp, finding the Houdek had failed to prove intent to harm.
Court of Appeals Decision
In reversing the trial court, Eighth District Court of Appeals found that “it could not harmonize” the definitions in Sections 2745.01(A) and (B) because “substantially certain” and “deliberate intent to injure” could not 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. Read the oral argument preview of this case here, and the analysis of that argument here.
R.C. 2745.01. Liability of employer for intentional tort – intent to injure required – exceptions.
R.C. 2745.01 has three parts pertinent to this appeal. Subsection (A) states that an employer shall not be liable for an intentional tort unless 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. Subsection (B) 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.” Subsection (C) creates a rebuttable presumption of intent to injure by the employer in the event of a deliberate removal by an employer of an equipment safety guard. (Professor’s note—for a recent opinion interpreting subsection C of this statute read this post on Hewitt v. L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317. )
At the Supreme Court
ThyssenKrupp relied on Kaminski v. Metal and Wire Co., and Stetter v. R.G. Corman Derailment Services, LLC for the proposition that R.C. 2745.01 (A) and (B) only allow one way to recover for an employer intentional tort, and that is if the employer acts with specific intent to cause injury. While conceding that intent can be proven by circumstantial evidence, the company argued there was no evidence of intent to injure Houdek in this case. In enacting this version of the statute (and there have been many others!) the legislature clearly intended to limit the common law cause of action. To accept the appellate court’s idea of a “scrivener’s error” is contrary to the Court’s recent holdings and with legislative intent. At oral argument, ThyssenKrupp also argued subsection (C) does not apply in this case.
Houdek did not try to defend the scrivener’s error rationale of the court of appeals. He argued that the statute clearly provides two ways, not one, to prove intent for an employer intentional tort, plus the alternative requirements of subsection (C), which he argued applied in this case. Because ThyssenKrupp failed to install better lighting, to require the use of safety cones to alert sideloader operators that Houdek would be working in the aisle, or to provide other protective gear such as reflective vests or expandable gates, subsection (C) of the statute applied to create a rebuttable presumption of intent to injure. Also, absent a confession, (sounds like Andy Douglas) intent to injure can be established through the employer’s conduct. In this case there was sufficient evidence that the company intended to injure him—the company had been warned just a few days earlier of danger to workers in the aisles, yet did nothing to protect Houdek before sending him to work there.
Issue Before the Court
Is a claimant who brings an employer intentional tort claim required to prove that the employer acted with a deliberate intent to injure him?
Short answer: Yes.
R.C. 2745.01 limits claims against employers for intentional torts to circumstances demonstrating a deliberate attempt to cause injury to an employee.
The Whole Bloody History of the Employer Intentional Tort Wars
Justice O’Donnell reviewed the whole saga of the employer intentional tort statutes and cases, starting with Blankenship v. Cincinnati Milacron Chem. Inc. up through Kaminski and Stetter, bringing us to the present moment and the present version of R.C. 2745.01, cited above. For those who don’t know this saga, you can read ¶s 14-20 of the opinion, or this post.
No Scrivener’s Error, That’s For Sure
In reaching this conclusion, Justice O’Donnell re-iterated a number of truths about the current state of this tort. First, the constitutionality of the current version of R.C. 2745.01 is not questioned in this case—that was laid to rest in Kaminski and Stetter. Nor is there any question about the legislative intent in enacting this statute. Two points stand out. The first was to permit recovery only when an employer acts with specific intent to cause an injury. The second was to limit what used to be known as a common law substantial certainty intentional tort.
“It is therefore manifest that R.C. 2745.01(B) is not the result of a scrivener’s error…” wrote O’Donnell. “In accord with this authority, absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system.”
Nor Does Subsection (C) Apply in this Case
The majority also rejected Houdek’s argument that this provision, which creates a rebuttable presumption of intent to injure when there is a deliberate removal of an equipment safety guard, applied. There was no evidence that there was any removal of an equipment safety guard.
What happened in this case was the result of a tragic accident. The evidence did show that ThyssenKrupp could have been more careful about a number of things, but the evidence did not rise to the level of deliberate intent to injure. The court of appeals was reversed and the judgment of the trial court reinstated.
Justice Pfeifer’s Dissent
It begins like this. “The majority opinion is wrong.”
It ends like this-“More’s the pity.”
Pfeifer disagrees with the majority on a number of points. He reads 2745.01 (A) and (B) as creating two ways, not one, to prove an employer intentional tort. He thinks reading those sections together shows that an employer can be liable for an intentional tort either if the employer acted with an intent to injure or with a deliberate intent to cause an injury.
Pfeifer thinks intent to injure can be inferred from the facts and circumstances of a given case. (“otherwise, an injured worker would be dependent on an employer’s confession to make his case.”). In this case he would find that the employer’s intent to injure could be inferred its behavior in sending “an already-injured Houdek into a dimly lit, narrow, dead-end aisle where a sideloader would be likely to enter, knowing that it was a dangerous situation. Houdek presented enough evidence that a trier of fact could determine that ThyssenKrupp intended to injure him.”
Pfeifer also thinks section (C) does apply in this case. As was clear from his dissent in Hewitt v. L.E. Myers Co., he reads this section far more broadly than his colleagues. In this case he would read deliberate removal of an equipment safety guard to include “failure to deploy safety equipment the employer has on site,” which in this case would include failure to place a safety cone at the entrance to the aisle where Houdek was working.
Justice Pfeifer has previously declared this tort on life support, if not totally dead.
I’m a little surprised the Court didn’t go with this: (from ¶ 25 of the opinion-”) “[A]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system.”
Here’s what I wrote after oral argument:
“This tort case is deader than a mackerel, and the tort itself may be, too. Other than subsection (C), which still has traction, (although not in this case), the Court might as well take it off the life support it left it hanging on after Kaminski and Stetter, and kill it for good. It’s hard to imagine any set of facts, as Justice Pfeifer asked that now state a claim for an employer intentional tort.”
For a lawyer who cut her teeth on then-Justice Andy Douglas’ battles with the legislature on this tort, we’ve come a very long way in the other direction. Justice Pfeifer may pick up an ally on his position when Justice-elect O’Neill joins the Court. But on the other hand, I doubt the Court will have much reason to take this up again.