Supreme Court Considers Intentional Tort Statute
R.C. §2745.01 created a statutory definition of intentional tort which replaced the common law intentional tort. In Kaminski v. Metal and Wire Co., 125 Ohio St.3d 250, 2010-Ohio-1027, and Stetter v. R.G. Corman Derailment Services, L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, the Ohio Supreme Court found the legislature’s replacement of the common law intentional tort with a more restrictive statutory definition constitutional. The Supreme Court has not yet considered what an employee must show to satisfy the statutory requirements to establish an employment intentional tort.
R.C. §2745.01 contains two separate provisions for an employee to establish an employment intentional tort. Under R.C. §2745.01(A) an intentional tort occurs when an employer acts
with the intent to injure another or with the belief that the injury was substantially certain to occur.
R.C. §2745.01(C) establishes an intentional tort for
[d]eliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance.
Houdek v. Thyssenkrupp Materials, Supreme Court Case No. 2011-1076, and Hewitt v. L. E. Myers Co., Supreme Court Case No. 2011-2013, place both possible ways for an employee to establish an employment intentional tort before the Supreme Court.
Houdek brings the R.C. §2745.01(A) “intent” definition before the Court. In Houdek the employer placed its employee in imminent danger by requiring him to work in a poorly lit, confined area where an improperly trained driver operated a sideloader at high speed. According to the Court of Appeals, if these facts “do not present genuine issues of material fact as to the existence of an employer intentional tort, then none shall.” Houdek v. Thyssenkrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694, ¶38.
The Supreme Court’s decision in Houdek will determine what the “intent” or “substantially certain” requirement of R.C. §2745.01(A) means. The Court’s decision will also determine the effect of R.C. §2745.01(B) (which provides that “‘substantially certain’ means that an employer acts with deliberate intent”). The Court’s decision should determine what an employee needs to show to demonstrate that an employer committed an intentional tort under R.C. §2745.01(A).
Hewitt involves the R.C. §2745.01(C) language which provides that “removal of a safety guard” constitutes an intentional tort. In Hewitt, the employer instructed an apprentice electrician to work on high voltage lines without rubber gloves or sleeves.
The Court of Appeals found that personal protective equipment, such as safety gloves and sleeves, satisfied the R.C. §2745.01(C) term “equipment safety guard” and rejected the employer’s argument that this term does not apply to personal protective equipment. Hewitt v. L.E. Myers Co., 8th Dist. No. 96138, 2011-Ohio-5413. The Supreme Court’s decision in this case should resolve the meaning of “equipment safety guard.”