A long, long time ago (January 19, 2010, to be exact) Donald Yeaples was injured while working as a laborer for Precision Directional Boring, a Medina County Company. He was on a job to identify residential connections with storm, sanitary and water pipes in order to bore a path for a new water main. The job site, in Summit County, was in front of a private residential driveway. When the owner needed to get out, the owner notified Yeaples, who told his co-worker, Gary Cole, who was operating an excavator. The excavator was missing several safety features including a rearview mirror and safety alarm. When Yeaples went behind the excavator to direct the homeowner out of his driveway, he was struck and seriously injured by the excavator.
Yeaples and his wife filed a lawsuit against Precision and Cole, raising a number of claims. The one pertinent here is a claim of a substantial certainty intentional tort by one employee against another.
Next, A Game of Ping Pong Over Venue
The Yeapleses filed their suit in Cuyahoga County. That’s where Cole resided. Precision moved to have venue transferred to Medina County, arguing that Cole was only a nominal 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, making venue proper in Cuyahoga County.
Meanwhile, back at the ranch in Cuyahoga County, in August of 2012, Precision and Cole asked the court to refuse venue and reaffirm its prior ruling transferring the action. The judge did exactly that, ordering the case sent back to Medina County.
You all still with me?
While the case remained pending before the Medina County Common Pleas Court for a second time, the Yeapleses went to the Eighth District Court of Appeals, seeking writs of mandamus and procedendo to compel the Cuyahoga County Common Pleas Court judge 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.
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.
You all still, still with me? Because this venue issue went to the Supreme Court of Ohio.
Supreme Court of Ohio Resolves Venue Dispute; Ducks Tort Question
On October 28, 2014, in a 6-1 decision in State ex rel. Yeaples v. Gall, 2014-Ohio-4724, the Supreme Court decided Cole was a nominal party only, the Yeapleses had not established the right to the writs, and venue was proper in Medina County. But the court also determined it did not need to answer the question of whether an employee can bring a workplace intentional tort claim against a fellow employee. That was apparently left to the folks in Medina County (where we now definitively know venue was proper.) You can read an analysis of the merit decision in this case here.
Where We Are Now
In Medina County. On December 2, 2015, the Yeapleses filed an amended complaint alleging a number of tort claims. Once again, pertinent here is the common law workplace intentional tort claim against Donald Yeaples’ co-worker Gary Cole. Yeaples alleged that in operating the excavator that injured him, Cole knowingly acted with deliberate indifference toward Yeaples in a manner that was substantially certain to cause harm, and that Cole was not entitled to co-worker immunity under R.C. 4123.741.
Cole filed a motion to dismiss the action against him on the grounds that Ohio law does not recognize a deliberate indifference/substantial certainty tort by one employee against a fellow employee. That is the issue the Supreme Court of Ohio decided not to decide in this case. Cole also argued that he is immune from liability under R.C. 4123.741.
On March 23, 2016, the trial court denied Cole’s motion to dismiss. The trial judge relied on the 2015 decision in Hunt v. Alderman, in which the Ninth District Court of Appeals (which includes Medina county) held that “the Supreme Court of Ohio has not specifically held that an intentional tort exception exists in the context of fellow employee suits and R.C. 4123.741,” (Citing Yeaples). The appeals court went on to find that “[N]onetheless, in light of other precedent and dicta, it is reasonable to conclude such an exception does exist,” and that “it is reasonable to conclude that fellow employees are likewise not immune from civil liability for intentional torts.” Cole appealed.
On September 25, 2017, the Ninth District Court of Appeals unanimously dismissed Cole’s appeal as not being a final appealable order, under either R.C. 2505.02(B)(1) or (B)(4). Therefore, finding it lacked jurisdiction, the appeals court did not answer the question of whether an employee can bring a workplace intentional tort claim against a fellow employee.
Despite the finding of the trial court and the Ninth District in Huntsman, I’d say the recognition of this tort by the Supreme Court of Ohio is a long shot. I also suspect the Supreme Court of Ohio is not eager to wade back into what it referred to in Yeaples as “the complex workers’ compensation milieu.”