Employer Knew Harm Was Substantially Certain

Employer Knew Harm Was Substantially Certain

Posted: July, 2002

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

Issue: Does evidence that an employee suffered electrocution after a previous employee suffered a similar injury and the employer failed to comply with federal safety requirements provide sufficient evidence 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 occurred as a result of the employer’s failure to have the required lockout/tagout system.

McKinley filed a complaint for intentional tort against the employer. The trial court granted summary judgment 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 of a substantial certainty of harm to the employee).

Decision: Court of Appeals reverses and finds sufficient evidence 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 the evidence sufficient to support a claim of retaliatory discharge.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.