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Employer Law Report

Ohio’s Sixth District Court of Appeals Finds a New Way to Expand Scope of the Employer Intentional Tort Statute

Posted in Workers' Compensation

Until the Ohio legislature enacted R.C. 2745.01 in 2005, the employer intentional tort exception to workers’ compensation immunity exasperated Ohio employers. Under the exception as interpreted by the Ohio Supreme Court, employers could be held liable for an intentional tort (with the accompanying tort damages such as punitive damages) so long as they had knowledge of a dangerous condition in its workplace that was substantially certain to cause injury and nevertheless required its employee to work under that condition. This was a very relaxed standard for an “intentional” tort and one that was made even more relaxed by increasingly liberal interpretations from Ohio appellate courts.

R.C. 2745.01 was designed to raise the standard by requiring employees to prove that the employer acted with “deliberate intent” to cause an employee to suffer an injury, a disease, a condition, or death. The statute created only two presumptions of a deliberate intent to injure: (a) if an employer deliberately lied to an employee about whether a substance was toxic or hazardous and as a result that substance injured the employee, or (b) if an employer deliberately removed an “equipment safety guard” and as a result of the removal the employee was injured. In those two circumstances, specific intent would be presumed.

Once the Ohio Supreme Court upheld the constitutionality of R.C. 2745.01 the plaintiffs’ bar attempted to find ways around the statute to once again open up the lucrative business of employer intentional torts. However, one-by-one early successes by the plaintiffs’ bar in the appellate courts have been overturned in the Ohio Supreme Court.

For example, in Houdek v. ThyssenKrupp Materials N.A., Inc., the Ohio Supreme Court rejected the Eighth Appellate District’s finding that R.C. 2745.01 did not really require deliberate intent to injure in order to establish an employer intentional tort. Similarly, in Hewitt v. L.E. Myers Co., the Ohio Supreme Court rejected the Sixth Appellate District’s broad interpretation of an “equipment safety guard” to include personal protective equipment (rather than a guard attached to a piece of a equipment) Had it been upheld, the lower court decision in Hewitt in effect would have imposed an affirmative duty on employers to make available personal protective equipment at the risk of being found liable for an employer intentional tort. In reaching its decision, the Ohio Supreme Court in Hewitt defined an equipment safety guard as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.”

Despite the Ohio Supreme Court’s rejection of expansive interpretations of employer intentional torts from the intermediate courts of appeal, the Sixth Appellate District again has attempted to find a way around the statute. Specifically, in Pixley v. Pro-Pak Industries, Inc., the Sixth District concluded, contrary to the Supreme Court’s Hewitt decision, that for purposes of interpreting R.C. 2745 an equipment safety guard need not be a device “designed to shield the operator [of the equipment] from injury.” Therefore, according to the Sixth District non-operators injured by removal of such a device from a piece of equipment could obtain a presumption of specific intent and proceed to a jury on an employer intentional tort claim. This interpretation by the Sixth District, if upheld by the Ohio Supreme Court, would substantially expand the scope of the intentional tort exception by expanding the types of devices that can constitute equipment safety guards as well as expanding the types of employees who could argue for the exception.

Attempting to find a way to square its conclusion with the Ohio Supreme Court’s holding in Hewitt, the Sixth District in Pixley engaged in an analysis consisting of three main arguments. First, the Sixth District stated that the portion of the high court’s decision in Hewitt that defined equipment safety guard as one “designed to shield the operator” was merely dicta because whether the plaintiff was an “operator” of the equipment at issue was not before the Ohio Supreme Court in Hewitt. Second, the Sixth District relied upon a one-sentence summary opinion by the Ohio Supreme Court reversing a different court of appeals and instructing it to apply the new standard for removal of equipment safety guards outlined in the high court’s Hewitt decision. According to the Sixth District, this one-sentence summary opinion was instructive because the reversal allegedly would not have been necessary if the Ohio Supreme Court had intended to limit the definition of equipment safety guards to those “designed to shield the operator.” Finally, the Sixth District analogized the scenario before it to the other exception in R.C. 2745.01 regarding deliberate lies to employees on toxic or hazardous substances. According to the Sixth District, this other exception does not limit itself to those employees who actually handle the toxic or hazardous substance and, likewise, the equipment safety guard exception should not be so limited.

The reasoning of the Sixth District described above is unconvincing to say the least. For example, at the same time the Sixth District convinces itself to deviate from the Ohio Supreme Court’s definition of equipment safety guard as “a device designed to shield the operator” because this portion of the definition is allegedly dicta from the Hewitt case, the Sixth District relies upon the one-sentence summary reversal by the Ohio Supreme Court in another case as somehow persuasive when that one-sentence summary reversal is itself is no better than dicta for the point the Sixth District wants to make. This appears to be selective reliance on and rejection of dicta. In fact, it is not even clear that the one-sentence summary reversal at all stands for the proposition advocated by the Sixth District; simply reversing a court of appeals decision in one sentence because a new standard is announced does not create persuasive authority and it is very likely the Ohio Supreme Court simply wanted the lower court to re-analyze the case using the current standard. As another example, the Sixth District’s third argument analogizing to the exception on deliberate lies about toxic or hazardous substances ignores the basic fact that this exception and the equipment safety guard exception are different exceptions. There is nothing in the statute, or in the principles of statutory interpretation, that says these two exceptions must be interpreted as being analogous in their scope.

At a more basic level, the Sixth’s District reasoning is not convincing from a practical perspective. The purpose of the exceptions in R.C. 2745.01 is to provide rebuttable presumptions of specific intent in circumstances where the employer’s action clearly demonstrates specific intent. If an employer deliberately removes an equipment safety guard and the operator of the equipment from which the guard was removed is injured, then it is reasonable to conclude the employer was specifically intending to hurt that operator. This presumption makes sense because the employer knows that the operator will use the machine, and it is presumed the employer knows that removing an equipment safety guard for that machine will cause injury. Those two presumptions lead to a presumption of specific intent; that is, a deliberate targeting of the employee for injury. The same presumptions do not exist if, for example, a bystander employee is somehow injured in addition to the operator when the operator uses the machine without the equipment safety guard. The injury of the bystander is not necessarily foreseeable and, if it is not foreseeable, it is difficult to see how there should be an automatic rebuttable presumption of specific intent for the injured bystander. Perhaps the bystander employee can prove the employer knew he or she would be in proximity to the machine, but that is proof independent of what would be required under the equipment safety guard exception and, therefore, the exception alone should be insufficient for that bystander employee. And, quite frankly, the actions of the employer toward the bystander employee look more akin to a lesser mental state such as recklessness or knowledge rather than specific intent.

It remains to be seen whether the employer will appeal the Sixth District’s decision to the Ohio Supreme Court and we have yet another case before the high court reversing an Ohio court of appeals on the scope of employer intentional tort liability. For employers, this case demonstrates that the battle by the plaintiffs’ bar to keep employer intentional torts alive is far from resolved.