What’s on Their Minds: Sovereign Immunity and Employer Intentional Torts. Vacha v. North Ridgeville.

Update: On July 17, 2013 the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On February 26, 2013, the Supreme Court heard oral argument in the case of Vacha v. North Ridgeville, 2011-1050 and 2011-1327. The case was accepted as a discretionary appeal and on conflict certification, and was originally held for decision in Sampson v. Cuyahoga Metropolitan Housing Authority. The two North Ridgeville cases were consolidated, and have now been allowed to proceed.  The issue, both in the discretionary appeal and conflict certification, is whether R.C. 2744.09(B) creates an exception to political subdivision immunity for intentional tort claims alleged by a public employee.

Case Background

In June 2006, Lisa Vacha was raped by Charles Ralson, a co-worker, while both were working at a wastewater treatment plant owned and operated by the city of North Ridgeville. After receiving workers’ compensation benefits, Vacha sued the city, alleging a number of tort claims.  The only claim at issue in this appeal is Vacha’s allegation that the city hired Ralston despite knowledge of seven previous convictions for crimes of violence, and thus committed an intentional tort when, with this knowledge, it hired and then failed to supervise and control him.  The trial court denied the city’s motion for summary judgment on the intentional tort claim, rejecting the city’s immunity defense. In a split decision on this issue, the Ninth District Court of Appeals affirmed the trial court’s decision that North Ridgeville was not immune from Vacha’s intentional tort claim. Read the oral argument preview of this case here.

Statutes and Precedent

R.C. 2744.09(B)

Chapter 2744 (political subdivision tort immunity) “does not apply to, and shall not be construed to apply to, the following *** (B) Civil actions by an employee, or the collective bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and the political subdivision.” (emphasis added.)

2745.01 Employer Intentional Tort

(A) In an action brought against an employer by an employee… for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the 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. (emphasis added)

(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

Syllabus, Sampson v. Cuyahoga Metro. Hous. Auth, 2012-Ohio-570

1.  When an employee of a political subdivision brings a civil action against the political subdivision alleging an intentional tort, that civil action may qualify as a “matter that arises out of the employment relationship” within the meaning of R.C. 2744.09(B).

2.  An employee’s action against his or her political-subdivision employer arises out of the employment relationship between the employee and the political subdivision within the meaning of R.C. 2744.09(B) if there is a causal connection or a causal relationship  between the claims raised by the employee and the employment relationship.

At Oral Argument

City’s Argument

Political subdivisions enjoy broad immunity for intentional torts. R.C. 2744.09(B) provides that immunity does not apply when a civil action arises out of the employment relationship.  According to the Sampson case, in order for a civil action to arise out of the employment relationship, there must be a causal connection between the subject matter of the tort claim and the employment. There is no way Vacha can meet this causal requirement. While the attack by her co-worker happened to occur while the employees were both at work, it did not arise from a work-related situation.  It arose from the personal malice of the assailant.  The causal connection between a tort and the employment relationship must be determined by a totality of the circumstances test. The Ninth District Court of Appeals should be reversed, and judgment entered as a matter of law for the city.

Vacha’s Argument

This case should just be affirmed on the authority of Sampson and remanded for trial on the intentional tort claim. The city keeps trying to make this into a vicarious liability case, when it isn’t. The city itself committed an intentional tort by hiring a man who it knew or should have known had a record of convictions for seven prior violent crimes, and placed him alone at night with a co-worker.  The mayor himself knew about two of those incidents of domestic violence.

What Was on Their Minds

That  Witch’s Brew of Employer Intentional Torts, Immunity, and Respondeat Superior

What about the definition of intentional tort as that has been re-defined by the legislature, asked Justice Lanzinger? Does the notion of deliberate intent by the employer affect the case in any way? (the city’s lawyer argued that the immunity statute and the employer intentional tort statute are two different things.  It would be merciful if that were the case)

Justice French commented that pursuant to 2745.01, to prove an intentional tort there would have to be a specific intent to injure—where was the record evidence of that? Since this case deals only with immunity, does the Court not reach that question? (Vacha’s counsel quickly agreed that the Court need not.  No wonder.)

The Sampson Case

Didn’t we answer your proposition of law in Sampson, asked Justice French of the city’s lawyer? In a key question of the day, she asked whether there is a difference between whether the plaintiff can proceed at all with an intentional tort claim and whether the plaintiff can prove it? To which Justice O’Donnell added, aren’t these all just matters of proof?

Doesn’t Sampson answer the conflict question in this case, asked Chief Justice O’Connor? Shouldn’t this go back to the trial court?

Ralston’s Actions

Was he completely outside the employment relationship, asked Justice O’Donnell? When the city attorney answered yes, Justice O’Donnell asked whether that was dispositive of the case? But then Chief Justice O’Connor weighed in right behind this and commented that it wasn’t dispositive according to Sampson.  She added that just because it wasn’t part of his job description didn’t mean Ralston was acting outside the employment relationship, a la Blankenship.

Is anything that happens at work in the employment relationship, asked Justice Lanzinger? Was this anything the city thought would be part of its business?

The City’s Role

Negligent hiring isn’t outside the employment relationship, is it, asked Justice O’Neill? (of course, this isn’t a negligence case!) How is the fact that the city either knew or should have known about this man’s violent propensities not actionable? Isn’t the case really about failure to keep a safe work place?

And the Chief also asked about the theory of negligent hiring, (which in Vacha’s complaint was framed as intentional conduct) The city knew or should have known at the time of hiring that it was substantially certain he would act in accordance with his past behavior? Doesn’t the city do background checks? (answer—not on entry level employees.)

The Mayor

What did he know and when did he know it asked Justice O’Neill?

The Remedy

How should we answer the certified question, asked Justice O’Donnell?

What relief do you seek, asked Justice Lanzinger? When the city’s lawyer answered, reverse the appeals court and enter judgment for the city, she answered, “if we disagree, the matter continues on for the jury to decide the disputed issues of fact?”

And that, folks, is exactly what I think will happen.

How It Looks from The Bleachers

To Professor Bettman

(see above)

The justices seemed conflicted, and I think that is because I don’t think Sampson really was all that clear, except to uncouple the immunity analysis from the “gloss” of Blankenship and the employer intentional torts in the context of workers’ compensation.  In other words, for purposes of political subdivision immunity, it won’t work to argue that an intentional tort definitionally does not arise out of the employment relationship, a la Blankenship, because in Sampson  the Court held that R.C. 2744.09(B) does not  incorporate the Blankenship rationale. The Court clearly held that the context of political-subdivision immunity is different from workers’ compensation immunity.

On the other hand, it won’t work to say that anything that happens at work arises out of the employment relationship, either.  In this case, I think the Court will let the plaintiff proceed with her intentional tort claim.   As Justice French put it, there is a difference between whether the plaintiff can proceed at all with an intentional tort claim and whether she can prove it, but I think the Court is going to let her try, because most of the justices who talked seemed offended by the city’s hiring of a man with seven previous convictions for crimes of violence. Still, I don’t think this case is as clear as Sampson’s was.

In her separate concurrence in Sampson, Justice Lanzinger wrote that even though the Blankenship rationale had been laid to rest as inapplicable in the sovereign immunity context, once the plaintiff gets to trial, the plaintiff still must prove an intentional tort as redefined by R.C. 2745.01.  Justice Lanzinger had no other takers for this position in Sampson, but Justice French seems to be with her now.  It will be interesting to see how–an if– the Court classifies the intentional tort in this case.

To Student Contributor Greg Kendall

Some justices appear confident that Sampson resolves the questions here. Others are skeptical of the argument that the city’s actions rose to the level of an intentional tort, and are especially skeptical that the city intended the result here. The Court appears divided as to how to deal with the facts surrounding the “arising out of the employment relationship” issue.

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