Employer Knew Harm Was Substantially Certain

McKinley v. Standby Screw Mach. Products Co. (6/20/02), Cuyahoga No. 80146, 2002-Ohio-3112:

Issue: Was evidence that an employee was electrocuted after a previous employee had suffered a similar injury and the Employer failed to comply with federal safety requirements sufficient to demonstrate the Employer knew of substantial certainty of harm?

Background: McKinley worked as an electrician. The person he replaced had been electrocuted. McKinley told his supervisor when he was hired that federal law required the Employer to have a lockout/tagout system to prevent similar electrocutions.

Subsequently, McKinley suffered injuries as a result of electrocution which he claimed were due to the failure of the Employer to have the required lockout/tagout system.

McKinley filed a complaint for intentional tort against the Employer. The trial court granted summary judgment against the employer on the grounds that McKinley did not satisfy the second prong of the Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, intentional tort test (Employer knowledge that there is a substantial certainty of harm to the employee).

Decision: Court of Appeals reverses and finds that evidence is sufficient to satisfy the Fyffe standard.

Court finds that risk of electrocution, record of prior similar incident, and fact that McKinley informed Employer of need for lockout/tagout system could permit a jury to find that the Employer knew of a substantial certainty of harm.

Editor's Comment: McKinley was fired, and claimed that his firing was in retaliation for his "whistle-blowing" when he complained to OSHA about the Employer's lack of the required lockout/tagout system. The Court of Appeals also found that the evidence was sufficient to support a claim of retaliatory discharge.

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