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.


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

n Hewitt v. L.E. Myers Co., 2012-Ohio-5317, the Ohio Supreme Court held last week that protective gloves and sleeves are “personal protective items” that an employee controls and not equipment safety guards for purposes of stating a cause of action under Ohio’s intentional tort statute, which provides an exception to an employer’s workers’ compensation immunity.
Continue Reading Ohio Supreme Court Holds that Employee Not Wearing PPE Did Not Amount to a Deliberate Removal of an Equipment Safety Guard and Could Not Establish an Intentional Tort Claim

Under Ohio law, employees may sue their employer to recover damages for an employer intentional tort – even when the injuries are otherwise covered by workers’ compensation.  Because these cases can be costly to defend, employers historically have purchased commercial general liability policies with “stop-gap” insurance endorsements for years, believing these provisions imposed a duty to defend the employer against an employer intentional tort lawsuit.

On July 6, however, the Ohio Supreme Court decided Ward v. United Foundries, Inc., determining that Gulf Underwriters Insurance Company did not have a duty to defend United Foundries, Inc. under such a stop-gap endorsement in an employer intentional tort action.


Continue Reading Supreme Court Says No Duty To Defend Employer Intentional Tort Claims Under Stop Gap Insurance Endorsements

On Tuesday, in two separate decisions, the Ohio Supreme Court finally resolved the lingering question as to the constitutionality of a state law that limits the ability of workers who are injured on the job to sue their employers for a “workplace intentional tort” in addition to receiving workers’ compensation benefits.
Continue Reading Ohio Employer Intentional Tort Statute Survives Challenge

On March 18, 2008, the Court of Appeals for the Seventh Appellate District struck down the portion of Ohio’s Tort Reform Act that created a heightened standard for employees bringing intentional tort claims against their employers. Specifically, Kaminski v. Metal & Wire Prods. Co., Case No. 07-CO-15 (7th Dist. March 18, 2008), was the first appellate decision addressing the constitutionality of this heightened standard, and it found the standard improper.

Normally, an employee who suffers a workplace injury cannot file a lawsuit but must, instead, seek compensation under Ohio’s workers’ compensation system. Proof that the employer’s conduct was intentional, however, allows the employee to go around the workers’ compensation system and file a lawsuit for damages. 


Continue Reading Intentional Tort Amendment Found Unconstitutional