Supreme Court Decisions Limit Intentional Tort Remedy
In Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608 (1982), the Ohio Supreme Court recognized that employees could pursue an intentional tort suit against their employers because
Affording an employer immunity for his intentional behavior certainly would not promote [a safe and injury-free] environment, for an employer could commit intentional acts with impunity with the knowledge that, at the very most, his workers’ compensation premiums may rise slightly.
The legislature decided to limit the employment intentional tort. Although the Supreme Court declared a number of statutes limiting the intentional tort unconstitutional, the Court found the current intentional tort statute constitutional in Kaminski v. Metal and Wire Co., 125 Ohio St.3d 250, 2010-Ohio-1027, stating that the intentional tort statute “constrains rather than abolishes an employee’s cause of action for an employer intentional tort.”
Two recent decisions by the Supreme Court demonstrate how effectively the intentional tort statute constrained the intentional tort remedy. These decisions demonstrate that the intentional tort statute has practically constrained the intentional tort remedy out of existence.
In Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, the Supreme Court considered the basic intentional tort definition. R.C. §2745.01(A) provides that an employer which acts “with the intent to injure another or with the belief that the injury was substantially certain to occur” commits an intentional tort. R.C. §2745.01(B) defines “substantially certain” as an act “with deliberate intent to cause an employee to suffer an injury.”
The Court interpreted this language to require an employee to demonstrate that the employer had a “deliberate intent” to injure them. In making this decision, the Court ignored the language used by the legislature which provided two standards for an intentional tort: (1) intent to injure; or (2) belief that the injury was substantially certain. As the dissenting opinion in Houdek pointed out, requiring evidence of deliberate intent means that an employee attempting to establish an intentional tort “would be dependent on an employer’s confession to make his case.”
The second decision by the Supreme Court, Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, involved an exception to the general intentional tort definition. In R.C. §2745.01(C), the legislature provided that “[d]eliberate removal by an employer of an equipment safety guard” constitutes an intentional tort. The Supreme Court determined to limit both the terms “deliberate removal” and “equipment safety guard” to further limit the availability of the intentional tort remedy. The Court defined “equipment safety guard” as “a protective device on an implement or apparatus to make it safe and to prevent injury or loss.” The Court defined “deliberate removal” to mean “a deliberate decision to . . . eliminate that guard.” The dissenting opinion in this case points out that the Court’s decision “add[s] words to the statute” and fails to consider the “simple meaning” of the term equipment safety guard – “equipment that is used as a safety guard.”
These Supreme Court decisions basically render the statutory intentional tort remedy a meaningless remedy – one which will be unavailable as a realistic matter to employees injured by their employer’s intentional conduct. These results do not promote injury-free and safe workplaces.