Read what happened on remand in this case here.
On July 17, 2013 the Supreme Court of Ohio handed down a merit decision in the case of Vacha v. N. Ridgeville, 2013-Ohio-3020. The case was accepted on both certified conflict and discretionary appeal. The issues in the case are whether R.C. 2744.09(B), an exception to political subdivision (in this case the city of North Ridgeville) tort immunity applies to claims by a political subdivision employee, and whether in this case the city was entitled to summary judgment on the basis of political subdivision immunity on an employer intentional tort claim brought by an employee. In a 5-2 decision written by Justice French, the Court held that R.C. 2744.09 (B) does apply here, and summary judgment for the city was inappropriate. Justice Kennedy, joined by Justice O’Donnell, concurred in part and dissented in part. The case was argued February 26, 2013.
In 2004, Charles Ralston was hired as a helper at a wastewater treatment plant owned and operated by the city of North Ridgeville. Ralston was interviewed for the job at the request of the mayor of North Ridgeville. Ralston was married to the mayor’s daughter, was the father of two of the mayor’s grandchildren, was unemployed, and was in arrears with his child support. The mayor knew that his daughter had twice called the police on Ralston for domestic violence. The mayor did not know Ralston had a criminal record. Ralston had been convicted of misdemeanor domestic violence, assault, and disorderly conduct.
When Ralston applied for the job, the city asked about felony convictions, but did not conduct background checks for a helper position. On his employment application, Ralston truthfully answered that he did not have a felony record. The interviewer never asked him if he had any criminal record, and Ralston was hired for the helper position. In 2006, Ralston raped Lisa Vacha, a co-worker, while both were working at the wastewater treatment plant. Ralston was convicted of rape and sentenced to prison. Vacha brought a civil action against the city.
Lisa Vacha sued the city on four grounds: negligent hiring and supervision of Ralston, reckless hiring and supervision of Ralston, vicarious liability, and an employer intentional tort. The trial court granted summary judgment to the city on the vicarious liability claim, but denied the city’s motion on the other three claims. The city appealed on these three claims. The Ninth District Court of Appeals reversed on the negligent and reckless hiring and supervision claims, finding them barred by workers’ compensation, but affirmed the denial of summary judgment on the employer intentional tort claim. The employer intentional tort claim is the sole issue before the Supreme Court. Read the oral argument preview of this case here and the analysis of that argument here. .
Syllabus, Sampson v. Cuyahoga Metropolitan Housing Authority, 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.
Certified Conflict Question
This case was originally accepted and held for decision in the Sampson case. Following the decision in Sampson (above) the Court sua sponte had the parties brief the certified-conflict question: Does R.C. 2744.09 create an exception to Political Subdivision Immunity for intentional tort claims alleged by a public employee?”
The city had argued in this case that it was entitled to immunity because intentional torts do not arise out of the employment relationship. The court of appeals decision in the case came out before the Supreme Court’s decision in Sampson, but foreshadowed it in rejecting the city’s immunity defense here. Sampson then expressly refused to engraft the Blankenship rationale–that intentional torts definitionally cannot arise out of the employment relationship–into the political subdivision immunity context.
In Vacha, the Supreme Court noted that Sampson had clarified that some, but not all, employer intentional torts do arise out of the employment relationship. The Court re-affirmed its holding in Sampson and held that Sampson resolved the certified conflict in the case, finding that “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).” But the Court then went on to find that the answer to the certified conflict question did not resolve the discretionary appeal.
Does the exception to immunity apply in this case?
Sampson held that some, but not all intentional torts arise out of the employment relationship. Did this one? Does the exception to immunity codified at R.C. 2744.09(B) apply in this case? To answer these questions, a court must decide if there is a causal connection or relationship between the employee’s claims and the employment relationship. And that is case-specific.
In Sampson it was an easy call to find a causal connection between the employee’s claim and the employment relationship. There, the Housing Authority had Sampson publicly arrested in front of co-workers during work hours, on work grounds, and for alleged misconduct in his job duties. In this case that necessary causal connection is much less clear.
Vacha’s intentional tort claim
The city argued that Ralston’s criminal acts were unrelated to Vacha’s employment relationship with the city. The majority did not necessarily disagree, but made it very clear that Vacha’s claim was not based on the rape itself, but rather on the alleged intentional misconduct by the city in its hiring and supervision of Ralston. The court of appeals in this case simply held that the city had not established its right to immunity as a matter of law, with which the Supreme Court agreed. But in this case whether the requisite causal connection exists to find an exception to immunity has not yet been factually determined. The case must go back for that determination. The Court ventured no guess on whether or not this claim will succeed.
The majority issued several disclaimers so that the narrowness of the holding in this case is clear. It was not saying that merely alleging there is a causal relationship between the employee’s claims and the employment relationship is enough to defeat immunity in any case, or in this one. The Court is not saying that a political subdivision cannot prove its entitlement to immunity after a full presentation of the evidence, even if it is not granted summary judgment on immunity. Nor was it saying that an employee could never lose an employer-intentional-tort claim as a matter of law.
So where are we on the discretionary appeal?
The court of appeals held that the city had not established that it was entitled to immunity on the employer intentional tort claim as a matter of law, and the majority agreed. The case was remanded to determine whether immunity applies. Whether Vacha can factually prove the requisite causal connection here remains to be seen. She was just given the right to try.
While the majority concentrated on the causal connection between Vacha’s claims and the employment relationship, the dissenters concentrated on the proof required for an employer intentional tort. Justice Kennedy, writing for herself and Justice O’Donnell, agreed that it is possible that Vacha could prove a causal connection between her intentional tort claim and her employment relationship with the city (that’s the concurrence part) but even if she did, she simply cannot prove an employer intentional tort as required by R.C. 2745.01, so the remand is “a vain act.” In taking this position, Kennedy slogged into an area that only Justice Lanzinger pressed in oral argument—what it takes to prove an employer intentional tort.
Kennedy criticized the court of appeals for using the definition of employer intentional tort found in Fyffe v. Jeno’s Inc., instead of the statutory definition found in R.C. 2745.01—which now requires that to prevail on this tort, Vacha would have to prove that the city acted with deliberate intent to injure her (as this Court has made abundantly clear in Houdek v. ThyssenKrupp Materials, N.A., Inc., 2012-Ohio-5685.) In viewing the evidence, Kennedy would find that at best it might support a negligent or reckless hiring or supervision claim (barred by workers’ compensation), but was insufficient as a matter of law to support an employer intentional tort claim. She would dismiss Vacha’s intentional tort claim against the city.
I think ultimately this will be a difficult case for Vacha to win, although I correctly predicted a majority would give her the chance to try. To me, other than to uncouple immunity in the political subdivision context from the “Blankenship” gloss, Sampson wasn’t all that clear about what was required to show the causal connection between the tort and the employment relationship. Sampson clearly was an easier case to see the connection than this one is. At oral argument it was Justice French who noted there is a difference between proceeding with an intentional tort claim and proving it. The majority focused on the immunity issue, and establishing the causal relationship here, while the dissent pounded away on the very high bar necessary to prove a workplace intentional tort. Interestingly, while it was Justice Lanzinger who emphasized that aspect of the case at oral argument, she did not join the dissent when it chose to focus on this.