Merit Decision. Court “Writs” Its Way Out of Deciding If a Worker Can Sue a Co-Worker for a Workplace Intentional Tort. State ex. rel. Yeaples v. Gall

Update: Read what happened on remand here

On October 28, 2014, the Supreme Court of Ohio handed down a merit decision in State ex rel. Yeaples v. Gall, 2014-Ohio-4724. In a 6-1 opinion written by Chief Justice O’Connor, in which Justice Pfeifer concurred in judgment only and Justice O’Neill dissented, the court resolved a venue dispute, but ducked the major underlying issue in the case, which was whether a substantial certainty workplace intentional tort can be brought against a fellow-employee. Instead, the court held that the relators (the Yeapleses) hadn’t established the right to writs of mandamus or procedendo. The case was argued June 25, 2014.

Case Background

The On-the-Job Injury

Donald Yeaples and Gary Cole both worked for Precision Directional Boring, LLC, a Medina County company.  They were on a job together in Summit County to identify residential connections with storm, sanitary and water pipes in order to bore a path for a new water main. The job site was in front of a private residential driveway. When the owner needed to get out, the owner notified Yeaples, who told Cole, who was operating an excavator.  Yeaples then went to the back of the excavator to direct the homeowner out of the driveway. While he was there, he was hit by the excavator and injured.

The Lawsuit

Yeaples and his wife(relators-appellees) filed a lawsuit against Precision and Cole (respondents-appellants) in Cuyahoga County. While the Yeapleses raised a number of claims, the one pertinent to this appeal is a workplace intentional tort claim against Precision and Cole.

General Rule on Venue

Ordinarily, pursuant to Civ. R. 3(B)(1), venue is proper in the county in which a defendant resides. But not if a defendant is only a nominal party.

The Venue Ping-Pong Game Begins

The Yeapleses filed their suit in Cuyahoga County.  Venue in that county was based on the fact that Cole resided there.

In February of 2012, Precision moved to dismiss the complaint from the Cuyahoga Court of Common Pleas, or to transfer the case for improper venue. Precision argued that Cole wasn’t a proper defendant because there is no cause of action against a fellow employee for an injury received in the course of and arising out of employment. The trial judge granted the motion and in March of 2012 transferred the case to Medina County.

In May of 2012, the Yeapleses asked the Medina County Court of Common Pleas to refuse the transfer. After a hearing, the Medina County court ordered the case returned to Cuyahoga County. The court held the complaint did sufficiently allege a workplace intentional tort against Cole, and Cole, therefore, was more than just a nominal defendant.

In August of 2012, back in Cuyahoga County, Precision and Cole asked the court to refuse venue and reaffirm its prior ruling transferring the action.  Judge Stephen Gall, the respondent, granted the motion and ordered the case sent back to Medina County.

The Yeaples Tire of Ping-Pong and Seek Writs of Mandamus and Procedendo

While the case remained pending before the Medina County Common Pleas Court for a second time, the Yeapleses filed a complaint in the Eighth District Court of Appeals seeking writs of mandamus and procedendo to compel Judge Gall to keep and decide the case. They also asked the judge in Medina County to stay the underlying case. In February of 2013, the Medina County judge refused to keep or reject the case until the writ issue was resolved.

Writs Issued

In May of 2013, the Eighth District Court of Appeals issued the writs of mandamus and procedendo. In doing so, the appellate court found the Yeapleses had properly stated a claim for a workplace intentional tort against fellow employee Cole; because Cole resides in Cuyahoga County, venue was proper there, so the case should not be transferred on the basis of improper venue. The appellate court also determined Cole was not merely a nominal party to the lawsuit.

Precision and Cole filed an appeal to the Supreme Court of Ohio. Judge Gall did not appeal, but filed a brief adopting the position of Precision and Cole. (meaning send the case away!)

Read the oral argument preview of the case here and the analysis of the argument here.

Important Precedent for This Decision

R.C. 4123.741 (Provides immunity from damages to an employee who injures a fellow employee of the same company in the course of and arising out of the injured employee’s employment.)

R.C. 2745.01 (Requires an employee injured at work through an intentional tort committed by the employer to prove the employer commit the act with the intent to injure another or with the belief that the injury was substantially certain to occur.)

Civ. R. 3(E) (“Venue in the forum shall be proper, if the venue is proper as to any one party other than a nominal party.”)

Smith v. Inland Paperboard & Packaging, Inc., 2008-Ohio-6984 (11th Dist.). (A “nominal party” is one whose presence in the action is either: (1) merely formal; or, (2) unnecessary for a just and proper resolution of the claim(s) presented.)

State ex. rel. Lyons v. Zaleski, 75 Ohio St.3d 623 (1996). (Ohio does not recognize the applicability of forum non conveniens as a basis for intrastate transfer of venue.)

State ex. rel. Waters v. Spaeth, 2012-Ohio-69. (To be entitled to a writ of mandamus, relators must establish (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the relevant agency or governmental unit to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. This must be proven by clear and convincing evidence.)

State ex. rel. Weiss v. Hoover, 84 Ohio St.3d 530 (1999). (To be entitled to a writ of procedendo, relators must establish (1) a clear legal right to require respondent to proceed, (2) a clear legal duty by the respondent judge to proceed, and (3) the lack of an adequate remedy in the ordinary course of the law. A writ of procedendo is appropriate when a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment.)

State ex. rel. Banc One Corp. v. Walker, 86 Ohio St.3d 169 (1999). (Extraordinary relief in mandamus or prohibition generally does not lie to challenge a decision on a motion to change venue because appeal following a final judgment provides an adequate legal remedy.)

Arguments of the Parties

Precision and Cole argue that the writs should have been denied because Ohio doesn’t recognize a cause of action against a co-worker which is analogous to the workplace intentional tort codified in R.C. 2745.01 (and about which the court has written volumes!!) Nor did the complaint allege a traditional common law intentional tort, like assault or battery. So venue could not be based on Cole’s residence.

The Yeapleses argue that notwithstanding the immunity provisions of R.C. 4123.741, Ohio law does allow such a claim under Blankenship and its progeny, and that Cole is therefore more than a nominal defendant, so their choice of forum should control.

Writ of Mandamus or Prohibition

The requirements for each of these writs is set forth in the precedent section above.

In this case the court held that in order for either writ to issue, the Yeapleses had to establish “a clear legal right to the vacation of the Cuyahoga County court’s transfer orders and to an order compelling that court to adjudicate the merits of the case.” And they didn’t.  The reason the court held that was so turned on Cole’s status in the case. The order to vacate the transfer would only be valid if Cole were more than a nominal party. The court found that he wasn’t.

What is a Nominal Party?

That term is not defined in the civil rules, so the court adopted a definition from an Eleventh District appellate decision, Smith v. Inland Paperboard & Packaging, Inc. A nominal party is one whose presence in the action was either simply a formality or unnecessary for a just and proper resolution of the claims presented.

Ohio is, after all, a notice pleading state, (a point emphasized by Justice O’Neill in his dissent) and the Eighth District Court of Appeals made much of the fact that the Yeapleses’ repeated use of the word defendants (plural) showed that they intended to include Cole as a tortfeasor, and not just a nominal party.  There was a certain amount of fussing in the opinion about the singular and the plural use of the word defendant in the original and amended complaint, but cutting through all that, the bottom line is that the gravamen of this action is directed toward Precision, not Cole—that Precision “deliberately required Plaintiff Yeaples to engage in an activity that was known to be ‘substantially certain’ to end in an injury or fatality * * *” The court found there was no showing that Cole’s presence in the case was necessary to a just and proper resolution of the issues presented.

Can An Employee Allege a Workplace Intentional Tort Against a Fellow Employee?

First, the court made clear that Yeaples did not allege a common law intentional tort, like assault or battery, against Cole.  He alleged a “workplace intentional tort.”  Is there such a thing? The court doesn’t decide.

“[W]ithout reaching the question of whether such a cause of action exists, and without determining the sufficiency of the pleadings for the purposes of Civ.R. 8 or a motion to dismiss under Civ.R. 12(B)(6), we conclude that the Yeapleses’ allegations in Count I do not state a claim whose resolution requires Cole’s presence, “ wrote O’Connor.

Taking it One Step Further. More Basics

The court went on to find that even if the Yeapleses had stated a viable claim against Cole and had established a clear legal right to venue in Cuyahoga County (remember, it found they hadn’t—this is just an add on) they also failed to establish that Judge Gall is under a clear legal duty to perform the actions requested, also necessary for a writ of mandamus or procedendo.

Ohio does not recognize the doctrine of forum non conveniens. Venue is always proper in a county in which a defendant, other than a nominal one, resides. If venue is proper, the court must accept it. And a court may transfer an action to an adjoining county if a fair and impartial trial cannot be had where the action is pending.

Bottom Line

Venue was proper in Medina County. The Yeapleses did not establish a clear legal duty for the court to issue the writs.

Disgruntled?  Then File an Appeal

Generally, the extraordinary writs won’t issue if there is an adequate remedy at law. Here, appeal is an adequate legal remedy.


“Because Cole’s status as a nominal party prevents the Yeapleses from establishing a clear legal right to the vacation of the transfer orders in Cuyahoga County or a clear legal duty by Judge Gall to perform that act, and because an appeal would provide an adequate remedy, we hold that the Yeapleses are not entitled to the extraordinary relief provided through the writs of mandamus and procedendo.”

Justice O’Neill’s Dissent

Justice O’Neill would find that the Yeapleses did plead enough, under the Ohio rules of notice pleading, to allege a workplace intentional tort against both Precision and Cole, and that the complaint was enough to make Cole more than a nominal party.  He also thinks that practically speaking, the Yeapleses did not have an adequate remedy at law. His dissent reflected the questions he asked at oral argument.

Case Syllabus


Concluding Observations

As I noted after argument, “the only real issue here is how shallowly or deeply the Court wants to wade into this case.”  Shallowly, it seems, despite Chief Justice O’Connor’s comment during oral argument that “even though the issue before the court was venue, and whether Cole’s actions were sufficient to allow the case to go forward in Cuyahoga, rather than Medina County, the court was ‘still going to have to address the issue of employee to employee intentional tort.’” But it didn’t.

Once the court decided to punt on the question of whether an employee can bring a workplace intentional tort claim against a fellow employee–and it is totally appropriate for an appellate court to decide a case on the narrowest ground–this case wasn’t worth the workout.  It added nothing new to the law, and was again just error correction.

In the end, this question asked at oral argument by Justice O’Donnell carried the day:

“Isn’t the case on appeal just about these writs, and not about the substance of what an employer intentional tort consists of? Don’t we just look at the requisites for mandamus and procedendo?”

In the further prediction department, I don’t think Yeaples has a prayer in a workplace intentional tort case against Precision. We shall see what happens on remand (in Medina county.)

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