At a presentation I gave last week regarding Ohio House Bill 380 (which allows undocumented workers to pursue an intentional tort against their employer-see my post here) someone said to me, “Yeah, but there’s really no intentional tort in Ohio now anyway”. I must admit, I pretty much agreed.
Then, this case, Seaton v. Willoughby, 2018-Ohio-77 (9th District, January 10, 2018) popped up in my inbox. The case proves, for those doubting workers’ compensation attorneys out there, that just like Santa Claus, if you really believe, cases for intentional tort CAN make it past summary judgment.
A brief history of intentional torts in Ohio
In 1982, in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608 (1982), the Ohio Supreme Court held that workers’ compensation immunity extended only to negligent acts, not intentional conduct. And so, the intentional tort was born. What followed was a long period of back and forth between the Ohio legislature and the courts. The legislature would pass laws attempting to restrict the scope of intentional torts, and the Ohio Supreme Court would strike them down.
In 2005, the legislature enacted R.C. §2745.01. Under that statute, an employer is only liable for an intentional tort if the plaintiff proves that the employer acted with “the intent to injure another or with the belief that the injury was substantially certain to occur.” The legislature defined “substantially certain” to mean that an employer acted with “deliberate intent” to cause an employee to suffer an injury or occupational disease.
The statue provides that “deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with the intent to injure.”
In Kaminski vs. Metal & Wire Products Co, 125 Ohio St.3d 250, 2010-Ohio-1027, the Ohio Supreme Court upheld the 2005 legislation as constitutional. In subsequent cases, the Supreme Court has maintained a very, very high bar to establish an intentional tort.
Seaton v. Willoughby
Seaton involved a tragic accident that occurred when an asphalt roller unexpectedly began to roll down a hill. The worker jumped from the machine, struck his head and eventually died. The Administrator of the Estate filed a complaint against several defendants, including the City of Willoughby, the decedent’s employer. The trial court denied the employer’s motion for summary judgment, on the grounds that there was a question of fact as to whether the city deliberately removed a safety guard from the asphalt roller.
The “safety guard” in question was actually the parking brake on the machine. The court held that the parking brake constituted a safety guard because “its primary purpose was to ensure safety by preventing movement when the roller was not in motion.” The parking brake was never disabled by the city, and was in fact actually repaired several years prior to the accident. However, the appellate court upheld the trial court’s determination, because modifications had been made to the braking system over the years.
The moral of the story
For those of you representing injured workers, the intentional tort is not truly extinct. For those of us representing employers-remind your clients that you act at your own peril when you mess with anything that could potentially be construed as an equipment safety guard.