Johnson v. BP Chemicals, Inc.

[This opinion has been published in Ohio Official Reports at 85 Ohio St.3d 298.]

JOHNSON, APPELLEE AND CROSS-APPELLANT, v. BP CHEMICALS, INC.,

APPELLANT AND CROSS-APPELLEE.

[Cite as Johnson v. BP Chemicals, Inc., 1999-Ohio-267.]

Employer and employee—Cause of action brought by employee alleging

intentional tort by employer in workplace—R.C. 2745.01 is unconstitutional

in its entirety—Cross-appeal dismissed as improvidently allowed.

R.C. 2745.01 is unconstitutional in its entirety. (Brady v. Safety-Kleen Corp.

[1991], 61 Ohio St.3d 624, 576 N.E.2d 722, approved and followed.)

(No. 97-2723—Submitted December 15, 1998—Decided April 14, 1999.)

APPEAL and CROSS-APPEAL from the Court of Appeals for Allen County, No.

1-97-32.

__________________

{¶ 1} On January 17, 1997, Norman A. Johnson, appellee and cross-

appellant, filed a complaint in the Court of Common Pleas of Allen County, naming

as defendant BP Chemicals, Inc. (“BP”), appellant and cross-appellee herein. In

the complaint, Johnson alleged that during the course of his employment with BP,

he “suffered burn injuries to his lower extremities, face, right arm, and other parts

of his body,” and that his injuries were a direct and proximate result of BP’s

“intentionally tortious conduct.” Johnson also sought recovery against BP for

products liability. Johnson’s products liability claims were predicated on the

allegation that BP acted “in its dual capacity as the manufacturer of machinery on

which Plaintiff sustained injury at the premises.”

{¶ 2} With respect to his intentional tort claim, Johnson alleged initially that

R.C. 2745.01, the “employment intentional tort” statute, was unconstitutional.

SUPREME COURT OF OHIO

With this assertion as a backdrop, Johnson then based his common-law intentional

tort claim upon the following allegations1:

“(1) Defendant knew of the existence of the dangerousness of a procedure

or condition at the premises which arose in the cleaning of prilling tower spray

heads (hereinafter ‘product’) with steam pressure within its business operation;

“(2) From past experience, Defendant knew that since critical welds had

failed in the product and since inspection of the product for such foreseeable

failures was knowingly inadequate, bodily injury would occur;

“(3) Defendant knew that if Plaintiff was subjected by his employment as

the prill B operator with Defendant to such dangerous procedure or condition, harm

to Plaintiff would be a substantial certainty and not just a high risk; and

“(4) Under such circumstances and with such knowledge, Defendant acted

to require Plaintiff to continue to perform the dangerous task, to wit, cleaning the

product with steam pressure.”

{¶ 3} On February 24, 1997, BP filed a Civ.R. 12(B)(6) motion to dismiss

the complaint. In its memorandum in support of the motion, BP argued that R.C.

2745.01 was a valid exercise of the General Assembly’s police powers and that

Johnson’s intentional tort claim should be dismissed because he failed to allege

facts sufficient to establish the existence of an intentional tort in accordance with

the statutory standards set forth in R.C. 2745.01. BP also asserted that Johnson’s

products liability claims were barred under Ohio law.

{¶ 4} Johnson responded to BP’s motion to dismiss, and he also filed two

motions for partial summary judgment. In his first motion for summary judgment,

Johnson reasserted that R.C. 2745.01 was unconstitutional. In his second motion,

1. In addition to his common-law intentional tort claim, Johnson, in the alternative, also alleged in

his complaint that “as the employer of Plaintiff, Defendant is liable to Plaintiff under the provisions

of Section 2745.01, Ohio Revised Code.”

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January Term, 1999

Johnson set forth reasons why he should be able to proceed with his products

liability claims against BP.

{¶ 5} On April 28, 1997, the trial court granted BP’s motion to dismiss and

denied Johnson’s summary judgment motions. The court concluded that R.C.

2745.01 was constitutional in all respects, that R.C. 2745.01 superseded common-

law intentional tort claims brought by employees against their employers, and that,

in this case, specific facts were not alleged sufficient to establish that BP

“deliberately and intentionally” injured Johnson. The trial court further determined

that Johnson failed to state a viable claim for products liability under the dual

capacity doctrine.

{¶ 6} On appeal, the Third District Court of Appeals reversed the judgment

of the trial court in part and affirmed it in part, and remanded the cause for further

proceedings. The court of appeals held that R.C. 2745.01 was unconstitutional and

that Johnson had properly set forth a claim for common-law intentional tort

sufficient to survive a Civ.R. 12(B)(6) motion to dismiss. The court of appeals,

however, agreed with the trial court that Johnson could not maintain a products

liability action. Based on the holdings of the court of appeals, BP filed an appeal

and Johnson filed a cross-appeal.

{¶ 7} The cause is now before this court upon the allowance of a

discretionary appeal and cross-appeal.

__________________

Ray & Alton, L.L.P., and Frank A. Ray; Janice A. Quatman & Associates

and Janice A. Quatman, for appellee and cross-appellant.

Thompson, Hine & Flory, L.L.P., William C. Wilkinson, Scott A. King and

Christine M. Haaker, for appellant and cross-appellee.

Manley, Burke, Lipton & Cook and Andrew S. Lipton, in support of appellee

and cross-appellant, for amicus curiae, Ohio Academy of Trial Lawyers.

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Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,

in support of appellee and cross-appellant, for amicus curiae, Ohio AFL-CIO.

Jones, Day, Reavis & Pogue, Jeffery D. Ubersax and Dennis A. Devine, in

support of appellant, for amicus curiae, Cold Metal Products, Inc.

Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., and

Kimberly L. Charles, Assistant Attorneys General, in support of appellant, for

amicus curiae, Ohio Attorney General.

Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor and Robin R.

Obetz, in support of appellant and cross-appellee, for amici curiae, Ohio

Manufacturers’ Association and Ohio Self-Insurers’ Association.

Garvin & Hickey, L.L.C., and Preston J. Garvin, in support of appellant and

cross-appellee, for amicus curiae, Ohio Chamber of Commerce.

Bricker & Eckler, L.L.P., Charles D. Smith and Bobbie S. Sprader, in

support of appellant, for amici curiae, Ohio Farm Bureau and National Federation

of Independent Business, Ohio Chapter.

__________________

DOUGLAS, J.

{¶ 8} The central question for our consideration is whether the court of

appeals erred in concluding that R.C. 2745.01 is unconstitutional. Johnson has also

filed a cross-appeal, contending that the trial court and court of appeals erred in

dismissing his products liability claims.

I

R.C. 2745.01

{¶ 9} R.C. 2745.01 became effective November 1, 1995. See Am.H.B. No.

103, 146 Ohio Laws, Part I, 756, 760.2 This legislation represents yet another

2. Section 1, Am.H.B. No. 103, 146 Ohio Laws, Part I, 756-757, states:

“That new sections 2305.112 and 2745.01 of the Revised Code be enacted to read as

follows:

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January Term, 1999

“Sec. 2305.112.(A) AN ACTION FOR AN EMPLOYMENT INTENTIONAL TORT

UNDER SECTION 2745.01 OF THE REVISED CODE SHALL BE BROUGHT WITHIN ONE

YEAR OF THE EMPLOYEE’S DEATH OR THE DATE ON WHICH THE EMPLOYEE KNEW

OR THROUGH THE EXERCISE OF REASONABLE DILIGENCE SHOULD HAVE KNOWN

OF THE INJURY, CONDITION, OR DISEASE.

“(B) AS USED IN THIS SECTION, ‘EMPLOYEE’ AND ‘EMPLOYMENT

INTENTIONAL TORT’ HAVE THE SAME MEANINGS AS IN SECTION 2745.01 OF THE

REVISED CODE.

“Sec. 2745.01. (A) EXCEPT AS PROVIDED IN THIS SECTION, AN EMPLOYER

SHALL NOT BE LIABLE TO RESPOND IN DAMAGES AT COMMON LAW OR BY

STATUTE FOR AN INTENTIONAL TORT THAT OCCURS DURING THE COURSE OF

EMPLOYMENT. AN EMPLOYER ONLY SHALL BE SUBJECT TO LIABILITY TO AN

EMPLOYEE OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE IN A CIVIL

ACTION FOR DAMAGES FOR AN EMPLOYMENT INTENTIONAL TORT.

“(B) AN EMPLOYER IS LIABLE UNDER THIS SECTION ONLY IF AN EMPLOYEE

OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE WHO BRING THE

ACTION PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE EMPLOYER

DELIBERATELY COMMITTED ALL OF THE ELEMENTS OF AN EMPLOYMENT

INTENTIONAL TORT.

“(C) IN AN ACTION BROUGHT UNDER THIS SECTION, BOTH OF THE

FOLLOWING APPLY:

“(1) IF THE DEFENDANT EMPLOYER MOVES FOR SUMMARY JUDGMENT, THE

COURT SHALL ENTER JUDGMENT FOR THE DEFENDANT UNLESS THE PLAINTIFF

EMPLOYEE OR DEPENDENT SURVIVORS SET FORTH SPECIFIC FACTS SUPPORTED BY

CLEAR AND CONVINCING EVIDENCE TO ESTABLISH THAT THE EMPLOYER

COMMITTED AN EMPLOYMENT INTENTIONAL TORT AGAINST THE EMPLOYEE;

“(2) NOTWITHSTANDING ANY LAW OR RULE TO THE CONTRARY, EVERY

PLEADING, MOTION, OR OTHER PAPER OF A PARTY REPRESENTED BY AN

ATTORNEY SHALL BE SIGNED BY AT LEAST ONE ATTORNEY OF RECORD IN THE

ATTORNEY’S INDIVIDUAL NAME AND IF THE PARTY IS NOT REPRESENTED BY AN

ATTORNEY, THAT PARTY SHALL SIGN THE PLEADING, MOTION, OR PAPER. FOR THE

PURPOSES OF THIS SECTION, THE SIGNING BY THE ATTORNEY OR PARTY

CONSTITUTES A CERTIFICATION THAT THE SIGNER HAS READ THE PLEADING,

MOTION, OR OTHER PAPER; THAT TO THE BEST OF THE SIGNER’S KNOWLEDGE,

INFORMATION, AND BELIEF FORMED AFTER REASONABLE INQUIRY IT IS WELL

GROUNDED IN FACT OR A GOOD FAITH ARGUMENT FOR THE EXTENSION,

MODIFICATION, OR REVERSAL OF EXISTING LAW; AND THAT IT IS NOT INTERPOSED

FOR ANY IMPROPER PURPOSE, INCLUDING, BUT NOT LIMITED TO, HARASSING OR

CAUSING UNNECESSARY DELAY OR NEEDLESS INCREASE IN THE COST OF THE

ACTION.

“IF THE PLEADING, MOTION, OR OTHER PAPER IS NOT SIGNED AS REQUIRED

IN DIVISION (C)(2) OF THIS SECTION, THE COURT SHALL STRIKE THE PLEADING,

MOTION, OR OTHER PAPER UNLESS THE ATTORNEY OR PARTY PROMPTLY SIGNS IT

AFTER THE OMISSION IS CALLED TO THE ATTORNEY’S OR PARTY’S ATTENTION. IF

A PLEADING, MOTION, OR OTHER PAPER IS SIGNED IN VIOLATION OF DIVISION

(C)(2) OF THIS SECTION, THE COURT, UPON MOTION OR UPON ITS OWN INITIATIVE,

SHALL IMPOSE UPON THE PERSON WHO SIGNED IT, OR THE REPRESENTED PARTY,

OR BOTH, AN APPROPRIATE SANCTION. THE SANCTION MAY INCLUDE, BUT IS NOT

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attempt by the General Assembly to govern when and under what circumstances an

intentional tort claim may be commenced and maintained by an employee against

his or her employer.3 Notably, in Section 3 of Am.H.B. No. 1034, the General

Assembly has declared its intent to supersede the effects of several decisions of this

court and to establish statutory standards, different from the common law, with

respect to intentional torts in the workplace.

LIMITED TO, AN ORDER TO PAY TO THE OTHER PARTY THE AMOUNT OF THE

REASONABLE EXPENSES INCURRED DUE TO THE FILING OF THE PLEADING,

MOTION, OR OTHER PAPER, INCLUDING REASONABLE ATTORNEY’S FEES.

“(D) AS USED IN THIS SECTION:

“(1) ‘EMPLOYMENT INTENTIONAL TORT’ MEANS AN ACT COMMITTED BY

AN EMPLOYER IN WHICH THE EMPLOYER DELIBERATELY AND INTENTIONALLY

INJURES, CAUSES AN OCCUPATIONAL DISEASE OF, OR CAUSES THE DEATH OF AN

EMPLOYEE.

“(2) ‘EMPLOYER’ MEANS ANY PERSON WHO EMPLOYS AN INDIVIDUAL.

“(3) ‘EMPLOYEE’ MEANS ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER.

“(4) ‘EMPLOY’ MEANS TO PERMIT OR SUFFER TO WORK.”

3. For an overview of the history of Ohio workers’ compensation law prior to the enactment of

Am.H.B. No. 103, see Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722.

See, also, Note Blankenship v. Cincinnati Milacron Chemical Co.: Workers’ Compensation and the

Intentional Tort — A New Direction for Ohio (1987), 12 Cap.U.L.Rev. 286; and Claybon, Ohio’s

“Employment Intentional Tort”: A Workers’ Compensation Exception, or the Creation of an

Entirely New Cause of Action? (1996), 44 Clev.St.L.Rev. 381.

4. Section 3, Am.H.B. No. 103, 146 Ohio Laws, Part I, 758, provides:

“The General Assembly hereby declares its intent in enacting sections 2305.112 and

2745.01 of the Revised Code to supersede the effect of the Ohio Supreme Court decisions in

Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608 [23 O.O.3d 504, 433

N.E.2d 572] (decided March 3, 1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 15 Ohio

St.3d 90 [15 OBR 246, 472 N.E.2d 1046] (decided December 31, 1982 [sic, 1984]); Van Fossen v.

Babcock & Wilcox (1988), 36 Ohio St.3d 100 [522 N.E.2d 489] (decided April 14 [sic, 13], 1988);

Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124 [522 N.E.2d 511] (decided April 13,

1988); Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235 [527 N.E.2d 871] (decided

August 24, 1988); and Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115 [570 N.E.2d 1108] (decided

May 1, 1991), to the extent that the provisions of sections 2305.112 and 2745.01 of the Revised

Code are to completely and solely control all causes of actions not governed by Section 35 of Article

II, Ohio Constitution, for physical or psychological conditions, or death, brought by employees or

the survivors of deceased employees against employers.” (Emphasis added.) While the General

Assembly does not say so in this provision, it is our hope and belief that what is meant are causes

of action accruing during the course of employment.

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January Term, 1999

{¶ 10} BP and its supporting amici curiae contend that R.C. 2745.01 is

constitutional in all respects. To that end, BP and its supporting amici curiae argue

that the General Assembly has the authority under its police powers to enact

legislation that establishes standards different from the common law, that other

jurisdictions have upheld legislation similar to R.C. 2745.01, and that R.C. 2745.01

represents a reasonable balance between employee and employer interests.

{¶ 11} We do not dispute the long-standing principle that the General

Assembly has the authority, within constitutional limitations, to change the

common law by legislation. See Thompson v. Ford (1955), 164 Ohio St. 74, 79, 57

O.O. 96, 99, 128 N.E.2d 111, 115. We are also mindful of the fundamental precepts

that all legislative enactments enjoy a strong presumption of constitutionality,

Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38, 616 N.E.2d 163, 166, and that

the role of a court when considering the constitutionality of an Act is not to judge

the wisdom of the legislation, Austintown Twp. Bd. of Trustees v. Tracy (1996), 76

Ohio St.3d 353, 356, 667 N.E.2d 1174, 1176. However, these general principles

are not absolute. Thus, when the validity of a statute is challenged on constitutional

grounds, it is our duty to determine the meaning and effect of the Constitution vis-

a-vis the challenged legislation. State ex rel. Bishop v. Mt. Orab Village School

Dist. Bd. of Edn. (1942), 139 Ohio St. 427, 438, 22 O.O. 494, 498, 40 N.E.2d 913,

919. Moreover, if the legislation at issue exceeds the limits of legislative power,

we must protect the rights of the citizens effected by the law and, if appropriate,

declare the legislation invalid.

{¶ 12} In response to our holdings in Blankenship v. Cincinnati Milacron

Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and

Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046,

the General Assembly enacted former R.C. 4121.80 (Am.Sub.S.B. No. 307, 141

Ohio Laws, Part I, 733-737). See Brady v. Safety-Kleen Corp. (1991), 61 Ohio

St.3d 624, 631, 576 N.E.2d 722, 727, citing Kunkler v. Goodyear Tire & Rubber

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Co. (1988), 36 Ohio St.3d 135, 136-137, 522 N.E.2d 477, 479. In Brady, the court

invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that

we had made it abundantly clear that any statute created to provide employers with

immunity from liability for their intentional tortious conduct cannot withstand

constitutional scrutiny. See, also, State ex rel. Ohio AFL-CIO v. Voinovich (1994),

69 Ohio St.3d 225, 230, 631 N.E.2d 582, 587.5 Notwithstanding, the General

Assembly has enacted R.C. 2745.01, and, again, seeks to cloak employers with

immunity. In this regard, we can only assume that the General Assembly has either

failed to grasp the import of our holdings in Brady or that the General Assembly

has simply elected to willfully disregard that decision. In any event, we will state

again our holdings in Brady and hopefully put to rest any confusion that seems to

exist with the General Assembly in this area.

{¶ 13} In Brady, the court held that former R.C. 4121.80 exceeded the

power conferred by and conflicted with both Sections 346 and 35,7 Article II of the

5. In State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, 230, 631 N.E.2d 582,

587, this court restated its holding in Brady that “intentional torts are completely unrelated to

workers’ compensation and the employment relationship.” Thus, relying on Brady, we held in

Voinovich that “the intentional tort provision under newly enacted [now former] R.C. 2745.01 [see

Am.H.B. No. 107, 145 Ohio Laws, Part II, 3040-3041] is not and cannot be related to the common

purpose of the bill, and we therefore hold that such provision violates Section 15(D), Article II of

the Ohio Constitution.” Id. Former R.C. 2745.01 (Am.H.B. No. 107, 145 Ohio Laws, Part II, 3040-

3041) was virtually identical to R.C. 2745.01 (Am.H.B. No. 103, 146 Ohio Laws, Part I, 756-757).

Former R.C. 2745.01 has simply been revived and restated in Am.H.B. No. 103.

6. Section 34, Article II of the Ohio Constitution states:

“Laws may be passed fixing and regulating the hours of labor, establishing a minimum

wage, and providing for the comfort, health, safety and general welfare of all employes; and no other

provision of the constitution shall impair or limit this power.”

7. Section 35, Article II of the Ohio Constitution provides:

“For the purpose of providing compensation to workmen and their dependents, for death,

injuries or occupational disease, occasioned in the course of such workmen’s employment, laws

may be passed establishing a state fund to be created by compulsory contribution thereto by

employers, and administered by the state, determining the terms and conditions upon which payment

shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or

damages, for such death, injuries, or occupational disease, and any employer who pays the premium

8

January Term, 1999

Ohio Constitution. Specifically, this court concluded that former R.C. 4121.80 was

“totally repugnant” to Section 34, Article II, because, in enacting the legislation,

the General Assembly eliminated an employee’s right to a common-law cause of

action for an employer intentional tort that would otherwise benefit the employee.

Brady, 61 Ohio St.3d at 633, 576 N.E.2d at 728. Therefore, former R.C. 4121.80

was not a law that furthered the “ ‘comfort, health, safety and general welfare of all

employees.’ “ Id., quoting Section 34, Article II.

{¶ 14} Additionally, the court in Brady adopted the rationale from the

dissent in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 162, 522

N.E.2d 464, 476,8 and concluded that R.C. 4121.80 represented an invalid exercise

of legislative authority. Specifically, the court held that “the legislature cannot,

consistent with Section 35, Article II, enact legislation governing intentional torts

that occur within the employment relationship, because such intentional tortious

conduct will always take place outside that relationship. Blankenship, supra. Since

or compensation provided by law, passed in accordance herewith, shall not be liable to respond in

damages at common law or by statute for such death, injuries or occupational disease.”

8. In Brady, the court adopted the following passage from the dissent in Taylor v. Academy Iron &

Metal Co. (1988), 36 Ohio St.3d 149, 522 N.E.2d 464:

“ ‘Injuries resulting from an employer’s intentional torts, even though committed at the

workplace, are utterly outside the scope of the purposes intended to be achieved by Section 35 and

by the Act. Such injuries are totally unrelated to the fact of employment. When an employer

intentionally harms his employee, that act effects a complete breach of the employment relationship,

and for purposes of the legal remedy for such an injury, the two parties are not employer and

employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against

the tortfeasor, it is a tort action like any other. The employer has forfeited his status as such and all

the attendant protections fall away. The Industrial Commission can have no jurisdiction over such

an action. The lawsuit has no bearing upon any question relating to employment. The jurisdiction

of the commission is limited to the matters delineated in Section 35, Article II. The General

Assembly has no power to confer jurisdiction on the commission except as authorized by that

constitutional provision. See Crawford, supra [110 Ohio St.], at 276, 143 N.E. at 575-576. Section

35 concerns itself solely with compensation for injuries arising from employment. R.C. 4121.80

concerns itself solely with injuries which by their nature have no connection whatsoever with the

fact of employment. In enacting R.C. 4121.80, the General Assembly has exceeded the scope of

the authority granted to it by the constitutional amendment, and the statute is, therefore, void as an

improper exercise of legislative power.’ (Emphasis sic.)” Brady, 61 Ohio St.3d at 634, 576 N.E.2d

at 729, quoting Taylor, 36 Ohio St.3d at 162, 522 N.E.2d at 476 (Douglas, J., dissenting).

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we find that Section 35, Article II authorizes only enactment of laws encompassing

death, injuries or occupational disease occasioned within the employment

relationship, R.C. 4121.80 cannot logically withstand constitutional scrutiny,

inasmuch as it attempts to regulate an area that is beyond the reach of its

constitutional empowerment.” (Emphasis sic.) Brady, 61 Ohio St.3d at 634, 576

N.E.2d at 729.

{¶ 15} Clearly, the constitutional impediments at issue in Brady,

concerning former R.C. 4121.80, also apply with equal force to R.C. 2745.01. Both

statutes were enacted to serve identical purposes. Like former R.C. 4121.80, R.C.

2745.01 was created to provide immunity for employers from civil liability for

employee injuries, disease, or death caused by the intentional tortious conduct of

employers in the workplace.9

{¶ 16} Specifically, R.C. 2745.01(A) provides that an employer is not

generally subject to liability for damages at common law or by statute for an

intentional tort that occurs during the course of employment, but that an employer

is subject to liability only for an “employment intentional tort” as defined.10

“Employment intentional tort” is defined in R.C. 2745.01(D)(1) as “an act

committed by an employer in which the employer deliberately and intentionally

injures, causes an occupational disease of, or causes the death of an employee.”

(Emphasis added.) Further, R.C. 2745.01(B) states that employees or the

dependent survivors of deceased employees who allege an intentional tort must

demonstrate “by clear and convincing evidence that the employer deliberately

9. Section 35, Article II of the Ohio Constitution provides the basis for legislative enactments in

the area of workers’ compensation. Although R.C. 2745.01 was not made part of the Workers’

Compensation Act (R.C. Chapter 4123), it is abundantly clear, given the nature of R.C. 2745.01,

including the heightened proof standards contained therein, that the overriding purpose of the statute

is to shield employers from civil liability for employee injuries caused by the intentional tortious

conduct of the employer.

10. It appears that R.C. 2745.01(A) is internally inconsistent.

10

January Term, 1999

committed all of the elements of an employment intentional tort.”11 (Emphasis

added.) This standard of clear and convincing evidence also applies to a response

by the employee or the employee’s representative to an employer’s motion for

summary judgment. R.C. 2745.01(C)(1). In addition, the statute requires that

“every pleading, motion, or other paper” be signed by the attorney of record or, if

the party is not represented by an attorney, by the party. R.C. 2745.01(C)(2).12

And, if the requirements of R.C. 2745.01(C)(2) are not complied with, the court

shall impose “an appropriate sanction.” Id. The sanction may include, but is not

limited to, reasonable expenses incurred by the other party, including reasonable

attorney fees. Id.

{¶ 17} By establishing the foregoing standards in R.C. 2745.01, the General

Assembly has created a cause of action that is simply illusory. Under the

definitional requirements contained in the statute, an employer’s conduct, in order

to create civil liability, must be both deliberate and intentional. Therefore, in order

to prove an intentional tort in accordance with R.C. 2745.01(D)(1), the employee,

or his or her survivors, must prove, at a minimum, that the actions of the employer

amount to criminal assault. In fact, given the elements imposed by the statute, it is

even conceivable that an employer might actually be guilty of a criminal assault but

11. In comparing former R.C. 4121.80 with R.C. 2745.01, it is apparent that R.C. 2745.01 contains

standards even more stringent (excessive) than those found in former R.C. 4121.80(G)(1), which

did not require clear and convincing evidence.

12. R.C. 2745.01(C)(2) states, at the onset, “Notwithstanding any law or rule to the contrary.” This

language suggests that the General Assembly has the authority to encroach upon the rule-making

authority of this court. See, however, Section 5(B), Article IV, Ohio Constitution (“The supreme

court shall prescribe rules governing practice and procedure in all courts of the state, which rules

shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such

rules shall be of no further force or effect after such rules have taken effect.”).

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exempt from civil liability under R.C. 2745.01(D)(1). Taylor, 36 Ohio St.3d at

162-163, 522 N.E.2d at 476 (Douglas, J., dissenting).13

{¶ 18} Indeed, the requirements imposed by R.C. 2745.01 are so

unreasonable and excessive that the chance of recovery of damages by employees

for intentional torts committed by employers in the workplace is virtually zero. In

this regard, we agree with the court of appeals that R.C. 2745.01 “creates an

insurmountable obstacle for victims of ‘employment intentional torts.’ ” See, also,

Claybon, Ohio’s “Employment Intentional Tort”: A Workers’ Compensation

Exception, or the Creation of an Entirely New Cause of Action? (1996), 44

Cleve.St.L.Rev. 381, 405-406 (“To impose a clear and convincing standard of

13. The following excerpt from the Taylor dissent dealt with the definition of “intentional tort”

contained in former R.C. 4121.80(G)(1), but the excerpt also exemplifies and adequately

summarizes the absurdity of the elements imposed by the General Assembly in R.C. 2745.01(D)(1):

“Under this definition [former R.C. 4121.80(G)(1)], an employer, in order to be held civilly

liable, must have proceeded deliberately to cause death or injury to an employee. The implications

of this standard are astounding. Legally speaking, an employer is now subject to civil liability only

if his actions amount to criminal assault or murder.

“R.C. 2903.02(A), setting forth the crime of murder, states: ‘No person shall purposely

cause the death of another.’ ‘Purposely’ is defined in R.C. 2901.22(A), which provides that ‘[a]

person acts purposely when it is his specific intention to cause a certain result * * *.’ R.C.

4121.80(G)(1) requires that the employer act with ‘deliberate intent to cause an employee to suffer

* * * death.’ Anything less will not result in civil liability. Thus, an employer is now civilly liable

for an employee’s death only if he commits murder, and even then his liability is substantially

limited by other provisions of R.C. 4121.80.

“The same is true of an employer who acts intentionally to cause injury to an employee.

In fact, the criminal assault statutes require a less culpable mental state than R.C. 4121.80. R.C.

2903.11 sets forth the elements of felonious assault as follows:

“ ‘(A) No person shall knowingly:

“ ‘(1) Cause serious physical harm to another * * *.’ (Emphasis added.)

“ ‘Knowingly’ is defined in R.C. 2901.22(B): ‘A person acts knowingly, regardless of his

purpose, when he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.’

“ ‘Knowingly’ is a less culpable state than ‘purposely.’ R.C. 2901.22(E); State v. Wilkins

(1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303. To act ‘knowingly,’ a person need not

act with deliberate intent. State v. Wenger (1979), 58 Ohio St.2d 336, 339, 12 O.O.3d 309, 311, 390

N.E.2d 801, 803, at fn. 3. Thus, an employer may actually be guilty of criminal assault but exempt

from civil liability under R.C. 4121.80(G)(1)!” (Emphasis sic and footnote omitted.) Taylor, 36

Ohio St.3d at 162-163, 522 N.E.2d. at 476-477 (Douglas, J., dissenting).

12

January Term, 1999

proof, in addition to requiring specific intent, distorts the very balance the

legislature was trying to achieve. Foreseeably, it will be extremely difficult for an

employee to prove a case of intentional tort in anything short of a flagrant battery.

With the threat of sanctions it is also foreseeable that an employee[‘s] attorney will

not want to file employee cases, otherwise risk being punished for what the court

feels was not a ‘good faith’ argument, or for ‘causing unnecessary delay or needless

increase in the cost of the action.’ ”).

{¶ 19} Accordingly, we find that R.C. 2745.01 is unconstitutional in its

entirety. Because R.C. 2745.01 imposes excessive standards (deliberate and

intentional act), with a heightened burden of proof (clear and convincing evidence),

it is clearly not “a law that furthers the ‘ * * * comfort, health, safety and general

welfare of all employes.’ ” Brady, 61 Ohio St.3d at 633, 576 N.E.2d at 728, quoting

Section 34, Article II of the Ohio Constitution. See, also, Blankenship, 69 Ohio

St.2d at 615, 23 O.O.3d at 509, 433 N.E.2d at 577 (“one of the avowed purposes of

the [Workers’ Compensation] Act is to promote a safe and injury-free work

environment. * * * Affording an employer immunity for his intentional behavior

certainly would not promote such an 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.”). Furthermore, because R.C.

2745.01 is an attempt by the General Assembly to govern intentional torts that

occur within the employment relationship, R.C. 2745.01 “cannot logically

withstand constitutional scrutiny, inasmuch as it attempts to regulate an area that is

beyond the reach of constitutional empowerment.” Brady, 61 Ohio St.3d at 634,

576 N.E.2d at 729.14

14. In the case at bar, the court of appeals determined that R.C. 2745.01 was unconstitutional on

grounds other than what we have decided here today. In a well-reasoned opinion, the court of

appeals held that R.C. 2745.01 denied employees equal protection of the law in violation of Section

2, Article I of the Ohio Constitution, and that the statute also violated the open courts provision,

Section 16, Article I. We agree with the holdings of the court of appeals in this regard. However,

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{¶ 20} After determining the constitutionality of R.C. 2745.01, and after

reviewing the complaint, the court of appeals concluded that Johnson properly set

forth a claim for common-law intentional tort against BP. We agree. In his

complaint, Johnson alleged that he was exposed to a dangerous situation at the plant

and that BP knew that such exposure would be substantially certain to cause injury.

Accepting these allegations as true, as we are required to do, we hold that the

complaint properly sets forth a claim of intentional tort sufficient to survive a Civ.R.

12(B)(6) motion to dismiss. See Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d

190, 532 N.E.2d 753.

{¶ 21} Therefore, for the foregoing reasons, the judgment of the court of

appeals is affirmed with respect to its holding that R.C. 2745.01 is unconstitutional

and with respect to its ruling that the complaint states a cause of action for common-

law intentional tort sufficient to withstand a Civ.R. 12(B)(6) motion to dismiss.

Thus, Johnson’s common-law intentional tort claim is reinstated.

II

Cross-Appeal

{¶ 22} In his complaint, Johnson also sought recovery against BP based

upon various theories of products liability. The trial court held, and the court of

appeals agreed, that Johnson was precluded from maintaining a products liability

action against BP. Johnson has filed a cross-appeal in this court with respect to this

matter, and we accepted jurisdiction. However, upon further consideration thereof,

we dismiss the cross-appeal, sua sponte, as having been improvidently allowed.

we find it unnecessary to elaborate further on the substantive merits of the court of appeals’ holdings

given our holding in this case that R.C. 2745.01 exceeds the limits of legislative power under the

Ohio Constitution.

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Judgment affirmed in part

and cross-appeal dismissed.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.

__________________

COOK, J., dissenting.

{¶ 23} The majority opinion views the issue presented by this case as a

question of “what is right?” but I believe the true question is “who decides what is

right?”

{¶ 24} The General Assembly passed this legislation as part of its policy-

making function, a function inherent in the legislative power. With this decision,

however, the majority usurps the legislative function; it cloaks judicial legislation

in the guise of constitutional scholarship. Unconstitutionality is a legitimate basis

for overturning democratically enacted legislation, but even gentle scrutiny of the

majority opinion shows that there is no justification for labeling this legislation

unconstitutional.

{¶ 25} We should be concerned by the use of judicial power to advance a

particular social philosophy. When judges declare governmental actions

unconstitutional based upon a personal distaste for the policies adopted through the

legislative process, we cease to be governed by democracy.

{¶ 26} Our Ohio Constitution restrains the powers and discretion of

government—all three branches of it.

I

{¶ 27} This case is about properly defining the term “intentional tort” in the

employment context. In Harasyn v. Normandy Metals, Inc. (1990), 49 Ohio St.3d

173, 551 N.E.2d 962, this court distinguished “direct intent” intentional torts from

other intentional torts. That case defined “direct intent” intentional torts as “where

the actor does something which brings about the exact result desired.” Id. at 175,

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551 N.E.2d at 964. It classified other intentional torts as where “the actor does

something which he believes is substantially certain to cause a particular result,

even if the actor does not desire that result.” Id. Prior decisions of this court have

set forth a broad definition of the term in the employment context, including both

direct intent and inferred intent within the definition of employer intentional tort.

By enacting R.C. 2745.01, the General Assembly sought to statutorily narrow that

common-law definition to “direct intent” torts only. The majority here determines

the General Assembly has no authority to do this, but does not support its position

with legitimate reasoning that R.C. 2745.01 offends both Sections 34 and 35,

Article II of the Ohio Constitution.

II

{¶ 28} The majority, citing Brady v. Safety-Kleen Corp. (1991), 61 Ohio

St.3d 624, 576 N.E.2d 722, concludes that R.C. 2745.01 violates Section 34, Article

II of the Ohio Constitution because it “clearly” does not further the “comfort,

health, safety and general welfare of all employes.” Whether the legislation does

or not, Section 34, Article II does not disqualify it.

{¶ 29} Section 34, Article II resulted from claims that the General

Assembly had no authority under the Constitution to legislate in the area of

minimum wages and the like. The argument against enacting such laws was that

they impaired the constitutional right to contract. So, the citizens approved a

constitutional amendment setting forth that “[l]aws may be passed fixing and

regulating the hours of labor, establishing a minimum wage, and providing for the

comfort, health, safety and general welfare of all employes; and no other provision

of the constitution shall impair or limit this power.” (Emphasis added.) Section

34, Article II, Ohio Constitution. From that, the majority gleans a prohibition

against any legislation that does not “provid[e] for the comfort, health, safety and

general welfare of all employes.” This section does not say that the General

Assembly may pass only laws that provide for the comfort, health, safety, and

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January Term, 1999

general welfare of employees. It also does not say that no law may ever be passed

that does not provide for the comfort, health, safety, and general welfare of

employees. There is nothing in this grant of authority that can properly be read as

a limitation on authority. Yet this is exactly the interpretation given it by a plurality

in Brady and followed today.

{¶ 30} It is interesting to note that in Rocky River v. State Emp. Relations

Bd. (1988), 39 Ohio St.3d 196, 530 N.E.2d 1, and Rocky River v. State Emp.

Relations Bd. (1989), 43 Ohio St.3d 1, 539 N.E.2d 103, this court was deeply

divided on the issue of whether Section 34, Article II applied to anything more than

wage and hour regulation. A mere two years later, the Brady plurality jumped from

the hotly debated conclusion that Section 34, Article II allows broader legislation

for the welfare of employees, to the specious conclusion that it prevents any

legislation that is not specifically enacted for employees’ welfare. There is no

better argument in today’s decision, just a repeat of the Brady rationale.

{¶ 31} Moreover, for the majority to cite Section 34, Article II, a provision

aimed at employee welfare, as a basis for holding R.C. 2745.01 unconstitutional is

inconsistent with its premise that the injuries to Brady and Johnson were not

sustained by them as employees — given that employer intentional torts fall outside

the scope of employment. Justice Brown noted this inconsistency in his Brady

concurrence when he stated, “[Section 34, Article II] does not apply to employer

intentional torts because they are not part of the employment relationship.” Brady,

61 Ohio St.3d at 639, 576 N.E.2d at 733.

{¶ 32} Accordingly, Section 34, Article II offers no basis for finding R.C.

2745.01 unconstitutional.

III

{¶ 33} The other basis the majority cites for finding R.C. 2745.01

unconstitutional is the immunity/exclusivity provision of Section 35, Article II of

the Ohio Constitution. The majority’s argument, resurrected from Brady, is that

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Section 35 grants authority to the General Assembly to enact laws regarding

injuries occasioned within the employment context, and thus, somehow, this

section thereby proscribes the passing of any laws affecting injuries outside the

scope of employment. Like its Section 34 argument, the majority’s Section 35

argument is unconvincing in its efforts to convert a grant of authority into a

restraint. Brady, 61 Ohio St.3d at 634, 576 N.E.2d at 729. Justice Brown also noted

this inconsistency in his Brady concurrence, saying: “Intentional torts do not * * *

come within the scope of Section 35, Article II. This does not mean, however, that

the General Assembly has no power to modify intentional tort law by legislation.

The legislature may do so in the exercise of its police power.” (Emphasis sic.) Id.

at 640, 576 N.E.2d at 733.

{¶ 34} The majority concedes that “the General Assembly has the authority,

within constitutional limitations, to change the common law by legislation.” If, as

Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23

O.O.3d 504, 433 N.E.2d 572, concludes, Section 35, Article II does not preempt

common-law or statutory actions for employer intentional torts, then the General

Assembly has authority to legislate in this area. This includes the authority to

determine the contextual definition for intentional tort. If, as Brady concludes,

Section 35, Article II precludes the legislation now at issue, then it can only be

because such torts do arise within the course of employment. But Section 35,

Article II cannot be both inapplicable to employer intentional torts and, at the same

time, offended by any legislation regulating such torts. Yet those are exactly the

contradictory conclusions reached by Brady and followed here.

IV

{¶ 35} Though unnecessary in this dissent, I wish to take issue with the

“outside the scope of employment” fiction initially employed in Blankenship. In

Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 689 N.E.2d 917, this

court stated that the phrase “in the course of employment” limited compensable

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January Term, 1999

injuries “to those sustained by an employee while performing a required duty in the

employer’s service.” Id. at 120, 689 N.E.2d at 921. “An injury is compensable if

it is sustained by an employee while that employee engages in activity that is

consistent with the contract for hire and logically related to the employer’s

business.” Id.

{¶ 36} Blankenship involved employees who claimed they were rendered

ill by exposure to noxious chemicals while performing assigned duties for their

employer. Nevertheless, the Blankenship majority concluded that employer

intentional torts, although occurring within the course of employment, were

nonetheless excluded from the pervasive immunity provided by Section 35, Article

II. Blankenship, 69 Ohio St.2d at 612-614, 23 O.O.3d at 507-508, 433 N.E.2d at

575-577.

{¶ 37} In Brady, an employee who was on his shift, performing the duties

expected of him, claimed he was injured when he helped clean up an accidental

chemical spill caused by another employee, similarly performing his assigned

duties for the same employer. In Walton v. Springwood Products, Inc. (1995), 105

Ohio App.3d 400, 401, 663 N.E.2d 1365, 1366, an employee was injured “in the

course and scope of his employment” when his hand was caught in the machine he

was operating for his employer. In Cook v. Cleveland Elec. Illum. Co. (1995), 102

Ohio App.3d 417, 419-420, 657 N.E.2d 356, 358, an employee was injured “in the

course and scope of his employment” while performing “a normal part of his

duties.” And in McGee v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236,

239, 659 N.E.2d 317, 319, an employee claimed he suffered liver damage due to

exposure to a chemical solvent “[t]hroughout his employment.” See, also, Richey

v. Johnson & Hardin Co. (July 17, 1998), Hamilton App. No. C-970767,

unreported, 1998 WL 395899 (employee injured while cleaning a printing press for

his employer); Jones v. Gen. Motors Corp. (May 9, 1997), Defiance App. No. 4-

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96-21, unreported, 1997 WL 232730 (employee fatally injured while performing

an ordinary task assigned by his employer).

{¶ 38} Despite what would seem to be an indisputable fact that all of these

injuries arose in the course of employment, and despite the clear language of

Section 35, Article II precluding remedies other than workers’ compensation for

such injuries, the courts in these cases found that the employer could be liable to

respond in damages. The facts in this case are similar. As the majority notes,

Johnson himself concedes in his complaint that he was injured “during the course

of his employment.” But, following Blankenship, the majority concludes that

Johnson was injured outside the scope of his employment, although his injuries

were sustained “while performing a required duty in the employer’s service,”

Ruckman, 81 Ohio St.3d at 120, 689 N.E.2d at 921, and while “engage[d] in activity

that is consistent with the contract for hire and logically related to the employer’s

business.” Id. Our Constitution requires that such injuries be compensated by

workers’ compensation in lieu of any other statutory or common-law remedy.

V

{¶ 39} The morass created by Blankenship and its progeny concerning the

definition of an employer intentional tort is exactly what the General Assembly

attempted to remedy by enacting R.C. 2745.01 — to foreclose the filing of cases in

derogation of the clear language of Section 35, Article II and the exclusivity

intended to be afforded that provision.

VI

{¶ 40} The majority opinion discloses its unfavorable view of the public

policy behind R.C. 2745.01 by characterizing it as the General Assembly’s attempt

“to provide employers with immunity from liability for their intentional tortious

conduct.” The statute, however, codifies a cause of action for employees for injuries

not covered under Section 35, Article II.

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January Term, 1999

{¶ 41} The majority is troubled by the legislative policy of setting a high

bar for tort actions in derogation of Section 35, Article II, calling the resulting cause

of action “simply illusory” and the requirements “unreasonable and excessive.”

But in a constitutional democracy, one is moved to ask, “Says who?” The majority

also complains about the General Assembly’s choice of policy, commenting that

“the chance of recovery of damages by employees for intentional torts committed

by employers in the workplace is virtually zero.” The likelihood of recovery,

however, seems far afield of the two asserted arguments for unconstitutionality.

Instead, it expresses disdain for the General Assembly’s public-policy decision.

{¶ 42} It is true that the statute may rarely be invoked. But that ought to be

the case when claims are permitted in derogation of the constitutional compromise

between employers and employees. And one would hope that an employer

deliberately injuring an employee would be very rare indeed.

VII

{¶ 43} “ ‘The question, whether a law be void for its repugnancy to the

Constitution is, at all times, a question of much delicacy, which ought seldom, if

ever, to be decided in the affirmative in a doubtful case.’ ” State ex rel. Dickman

v. Defenbacher (1955), 164 Ohio St. 142, 154, 57 O.O. 134, 140, 128 N.E.2d 59,

67, quoting Fletcher v. Peck (1810), 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162, 175.

I believe the majority errs today by finding this legislation unconstitutional.

Therefore, I respectfully dissent.

MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing

dissenting opinion.

__________________

LUNDBERG STRATTON, J., dissenting.

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{¶ 44} Today the majority once again strikes down a constitutionally valid

attempt by the General Assembly to restore balance between employees’ and

employers’ rights in the context of workplace injuries.

{¶ 45} My dissent is grounded in the history of the workers’ compensation

system. In Ohio, prior to 1911, an employee attempting to recover damages against

an employer for injuries sustained in the workplace had to file a common-law action

against his or her employer. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d

624, 643, 576 N.E.2d 722, 735 (Holmes, J., dissenting). Injured employees were

required to prove that the employer had a duty of care toward them and that the

employer breached that duty. Keeton, Dobbs, Keeton & Owens, Prosser & Keeton

on the Law of Torts (5 Ed.1984), Section 80, 569, 572-573. Employers could raise

three defenses against such claims: (1) contributory negligence, (2) assumption of

the risk, and (3) the fellow servant rule. Note, Exceptions to the Exclusive Remedy

Requirements of Workers’ Compensation Statutes (1983), 96 Harv.L.Rev. 1641,

1644. But “[t]his system of litigation for obtaining compensation for work-related

injuries became widely recognized as not meeting the needs of injured workers. In

Ohio, a great number of such injuries were reportedly going uncompensated

because of the legal defenses available to the employer.” Brady at 643, 576 N.E.2d

at 735 (Holmes, J., dissenting).

{¶ 46} In response to the crisis, in 1911, the General Assembly enacted

Ohio’s first workers’ compensation law. See 102 Ohio Laws 524 et seq. The

Workers’ Compensation Act provided a more equitable system for compensating

employees’ work-related injuries. Both employer and employee could avoid the

burdensome cost of litigation. Claybon, Ohio’s “Employment Intentional Tort”: A

Workers’ Compensation Exception, or the Creation of an Entirely New Cause of

Action? (1996), 44 Cleve.St.L.Rev. 381, 386. The employee received a prompt

recovery for injuries that occurred in the workplace without having to prove

negligence. Id. In return, the employer was no longer subject to uncertain damages

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January Term, 1999

by way of lawsuits, but also could no longer assert any defense. Id. G.C. 1465-57

of the newly enacted workers’ compensation law provided that any employer who

paid the state insurance fund premiums “shall not be liable to respond in damages

at common law or by statute, save as hereinafter provided, for injuries or death of

any such employee.” 102 Ohio Laws 524, 528. However, there were two

exceptions to the exclusivity of the workers’ compensation remedy. If an

employee’s injuries were caused by a “wilful” act of the employer or if an

employee’s injuries were caused by an employer’s violation of a safety ordinance

or statute, the employee could opt for either a common-law action against the

employer or recovery under the workers’ compensation system. G.C. 1465-61, 102

Ohio Laws 524, 529. Employer participation was not compulsory. G.C. 1465-57,

1465-58, id. at 528.

{¶ 47} In 1912, Section 35, Article II of the Ohio Constitution was adopted,

which authorized the General Assembly to establish and regulate a workers’

compensation fund that required employer participation.

{¶ 48} In 1931, the General Assembly repealed the exceptions for willful

acts and for employers’ violations of safety standards. 114 Ohio Laws 26, 39,

repealing G.C. 1465-76 (formerly G.C. 1465-61). Awards for violations of specific

safety requirements were absorbed and codified into the workers’ compensation

system as awards supplemental to the workers’ compensation benefits if an

employer’s violation of a specific safety requirement (“VSSR”) caused the

employee’s injury. See, e.g., State ex rel. Go-Jo Industries v. Indus. Comm. (1998),

83 Ohio St.3d 529, 700 N.E.2d 1264. Subsequent to the repeal of the willful-act

exception, courts interpreted the workers’ compensation system to be the exclusive

remedy for work-related injuries.

{¶ 49} But in 1982, this court in Blankenship v. Cincinnati Milacron

Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, held

that an employee is not precluded by the exclusivity provisions of the workers’

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compensation laws from bringing a common-law intentional tort action against the

employer because workers’ compensation covers only injuries received in the

course of or arising out of employment, whereas an intentional act occurs outside

the scope of employment. Two years later, in Jones v. VIP Dev. Co. (1984), 15

Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, the court defined an intentional tort

in the employment setting as “an act committed with the intent to injure another, or

committed with the belief that such injury is substantially certain to occur.” Id.,

paragraph one of the syllabus. While recognizing that “intent to injure” was a

requirement for intentional tort, the court in Jones also determined that conduct by

an employer that lacks specific intent to injure can also be an “intentional” tort. In

response to Jones, the General Assembly enacted R.C. 4121.80, which defined

“intentional tort” in the employment setting as follows:

“(G) As used in this section:

“(1) ‘Intentional tort’ is an act committed with the intent to injure another

or committed with the belief that the injury is substantially certain to occur.

“***

“ ‘Substantially certain’ means that an employer acts with deliberate intent

to cause an employee to suffer injury, disease, condition, or death.” (Emphasis

added.) 1986 Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 736.

{¶ 50} Despite the General Assembly’s definition in R.C. 4121.80 of

“substantially certain” as requiring “deliberate intent to cause * * * injury,” the

court in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522

N.E.2d 489, held that some acts committed with a culpability greater than

recklessness, but not deliberately done with an intent to injure, should be

recognized as intentional. Id. at paragraph six of the syllabus. This holding was

essentially echoed in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d

1108.

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January Term, 1999

{¶ 51} In a final undoing of the General Assembly’s work, the court in

Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, held that

R.C. 4121.80 was unconstitutional in toto. Id. at paragraph two of the syllabus.

{¶ 52} In these cases, this court has blurred the distinction between conduct

truly outside the scope of employment (an intentional act) and conduct that is part

and parcel of the employment relationship. But I believe that only injuries caused

by truly intentional acts fall outside the coverage of the workers’ compensation

system, as established by Section 35, Article II of the Ohio Constitution, and may

be the basis for an intentional tort action against an employer, while all other

injuries are compensable only through the workers’ compensation system. Section

35, Article II of the Ohio Constitution does not differentiate between types or

causes of injuries. Its language is all-encompassing:

“For the purpose of providing compensation to workmen and their

dependents, for death, injuries or occupational disease, occasioned in the course of

such workmen’s employment, laws may be passed establishing [a workers’

compensation system]. Such compensation shall be in lieu of all other rights to

compensation, or damages, for such death, injuries, or occupational disease, and

any employer who pays the premium or compensation provided by law, passed in

accordance herewith, shall not be liable to respond in damages at common law or

by statute for such death, injuries or occupational disease.”

{¶ 53} The court makes no differentiation between degrees of risk levels of

knowledge and certainty in interpreting the workers’ compensation laws. The fact

patterns in Jones and Van Fossen clearly fall under Section 35, Article II of the

Ohio Constitution as part of the workers’ compensation trade-off. This court, in its

line of decisions since Blankenship, has imposed another level of compensation for

employees despite the clear proof that these injuries were part and parcel of the

employment relationship.

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{¶ 54} It is in light of this history that I disagree with the majority’s holding

that R.C. 2745.01 is unconstitutional pursuant to Sections 34 and 35, Article II of

the Ohio Constitution.

{¶ 55} In supporting its position in this case, the majority reiterates

reasoning from Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722.

In Brady, the court determined that R.C. 4121.80 exceeded the authority granted by

Sections 34 and 35 of Article II of the Ohio Constitution. The majority, therefore,

holds that R.C. 2745.01 likewise violates these sections of the Constitution.

Section 34, Article II of the Ohio Constitution

{¶ 56} I would hold that R.C. 2745.01 does not conflict with Section 34,

Article II of the Ohio Constitution. Section 34, Article II of the Ohio Constitution

states:

“Laws may be passed * * * providing for the comfort, health, safety and

general welfare of all employees * * *.”

{¶ 57} The plurality opinion in Brady stated that “[a] legislative enactment

that attempts to remove a right to a remedy under common law that would otherwise

benefit the employee cannot be held to be a law that furthers the ‘ * * * comfort,

health, safety and general welfare of all employees * * *.’ ” Id., 61 Ohio St.3d at

633, 576 N.E.2d at 728. The majority here makes the same conclusion about R.C.

2745.01.

{¶ 58} In support of its holding that R.C. 2745.01 violates Section 34,

Article II of the Ohio Constitution, the majority states, “[L]ike former R.C.

4121.80, R.C. 2745.01 was created to provide immunity for employers from civil

liability for employee injuries, disease, or death caused by the intentional tortious

conduct of employers in the workplace.” I disagree and believe that the opposite is

true. R.C. 2745.01 does not deny but instead expressly provides employees a

statutory avenue of redress for employee injuries caused by employer intentional

torts. Specifically, R.C. 2745.01(A) states:

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January Term, 1999

“An employer * * * shall be subject to liability to an employee * * * for

damages for an employment intentional tort.” (Emphasis added.)

{¶ 59} This language does not remove a right to a remedy. It codifies it.

Codification is not removal.

{¶ 60} Without question the General Assembly’s definition of intentional

tort sets a higher threshold in defining intentional tort than the court-fashioned

definition. However, it was the court that resurrected the intentional tort exception

to workers’ compensation laws in Blankenship and then diluted its definition in

Jones and its progeny to an act done with knowledge that it is substantially certain

to cause harm, as opposed to an act done with the intent to cause harm. See Bishop

v. Hybud Equip. Corp. (1988), 42 Ohio App.3d 55, 58, 536 N.E.2d 694, 697.

Further, in the original workers’ compensation laws, there was a willful-act

exception to the exclusivity of the workers’ compensation coverage. See G.C.

1465-76, 104 Ohio Laws 193, 194 (which defined “wilful act” as “an act done

knowingly and purposely with the direct object of injuring another”). Thus, in

effect, R.C. 2745.01, which requires “deliberate intent” to cause injury, does not

remove a right to a remedy; it merely restores the definition of intentional tort to its

proper and original, bargained-for definition. But even this definition was part of

the Jones holding: “An intentional tort is an act committed with the intent to injure

another * * *.” Jones, 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, at

paragraph one of the syllabus, and, therefore, has already been approved by this

court.

{¶ 61} The majority also complains that the definitional restrictions in

requiring an employment intentional tort to be deliberate and intentional render the

cause of action illusory. Yet the original definition of “intentional tort” is an act

done with intent to cause harm, not an act done with knowledge that it is

substantially certain to cause harm. Bishop, 42 Ohio App.3d at 58, 536 N.E.2d at

697. The mere fact the evidence will seldom dictate that an employee has a

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legitimate intentional tort case does not render R.C. 2745.01 unconstitutional. I

believe we must uphold the true definition of intentional tort to prevent an

“expansive interpretation of the intentional tort exception [which] would thwart the

[workers’ compensation] scheme by eroding the exclusivity of both the liability and

the recovery provided by workers’ compensation.” Van Fossen, 36 Ohio St.3d at

113, 522 N.E.2d at 501.

{¶ 62} It is important to remember, in contrast to the bleak picture the

majority depicts, that there is an avenue of redress for these particularly egregious,

but not quite intentional, acts perpetrated by the employer that cause injury to an

employee. Where an employer violates a specific safety requirement and that

violation causes the employee injury, the employee can recover workers’

compensation benefits and a VSSR award, which works not only to provide

additional compensation to the employee but also to punish the employer for that

conduct.

{¶ 63} Thus, R.C. 2745.01 does not remove a right to remedy, because

employees have remedies available to them, as they had prior to the enactment of

R.C. 2745.01. For injuries caused by no fault at all or by the negligence or

recklessness of an employer, an employee may recover workers’ compensation

benefits. For injuries caused by more egregious acts of recklessness, an employer

may be fined and employees may receive additional compensation by way of a

VSSR award. Finally, where the employer commits a truly intentional act, the

employee may bring an intentional tort action against the employer pursuant to R.C.

2745.01.

{¶ 64} Accordingly, I would hold that R.C. 2745.01 does not conflict with

Section 34, Article II of the Ohio Constitution.

Section 35, Article II of the Ohio Constitution

{¶ 65} The majority also finds R.C. 2745.01 unconstitutional because

Section 35, Article II of the Ohio Constitution authorizes only legislation pertaining

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to acts that occur within the employment relationship. Therefore, the majority

holds, the General Assembly went beyond the authority of Section 35, Article II of

the Ohio Constitution because R.C. 2745.01 attempts to regulate conduct,

intentional torts, that necessarily occurs outside the employment relationship. I

would hold that the General Assembly has authority beyond Section 35, Article II

of the Ohio Constitution to enact R.C. 2745.01.

{¶ 66} I believe that the General Assembly never intended to rely on

Section 35, Article II of the Ohio Constitution as authority for enacting R.C.

2745.01. Am.H.B. No. 103, which enacted R.C. 2745.01, states:

“The General Assembly hereby declares its intent in enacting sections

2305.112 and 2745.01 of the Revised Code to supersede the effect of the Ohio

Supreme Court decisions in Blankenship v. Cincinnati Milacron Chemicals, Inc.

(1982), 69 Ohio St.2d 608 [23 O.O.3d 504, 433 N.E.2d 572] (decided March 3,

1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 15 Ohio St.3d 90 [15 OBR

246, 472 N.E.2d 1046] (decided December 31, 1982 [sic, 1984]); Van Fossen v.

Babcock & Wilcox (1988), 36 Ohio St.3d 100 [522 N.E.2d 489] (decided April 14

[sic, 13], 1988); Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124 [522

N.E.2d 511] (decided April 13, 1988); Hunter v. Shenango Furnace Co. (1988), 38

Ohio St.3d 235 [527 N.E.2d 871] (decided August 24, 1988); and Fyffe v. Jeno’s,

Inc. (1991), 59 Ohio St.3d 115 [570 N.E.2d 1108] (decided May 1, 1991), to the

extent that the provisions of sections 2305.112 and 2745.01 of the Revised Code

are to completely and solely control all causes of action not governed by Section

35, Article II, Ohio Constitution * * *.” (Emphasis added.) Id. at Section 3, 146

Ohio Laws, Part I, 758.

{¶ 67} The General Assembly had authority to enact R.C. 2745.01 under its

general grant of legislative power and did not need to rely on the specific grant of

authority in Section 35, Article II of the Ohio Constitution. And, in fact, the

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General Assembly specifically stated that R.C. 2745.01 was to control actions not

governed by Section 35, Article II of the Ohio Constitution.

{¶ 68} Section 1, Article II of the Ohio Constitution provides that “[t]he

legislative power of the state shall be vested in a General Assembly.” Within this

general grant of authority is the General Assembly’s police power. See Marmet v.

State (1887), 45 Ohio St. 63, 70, 12 N.E. 463, 468. The General Assembly’s ability

to legislate under the police power “is plenary, except as it may be specifically and

clearly limited in the constitution.” Champaign Cty. Bd. of Commrs. v. Church

(1900), 62 Ohio St. 318, 344, 57 N.E. 50, 52. Within the scope of these police

powers, the General Assembly “may modify or entirely abolish common-law

actions and defenses.” Thompson v. Ford (1955), 164 Ohio St. 74, 79, 57 O.O. 96,

99, 128 N.E.2d 111, 115. The General Assembly has authority to codify the

common law. See, e.g., Long v. Tokai Bank of California (1996), 114 Ohio App.3d

116, 123, 682 N.E.2d 1052, 1057 (recognizing the General Assembly’s power to

codify products liability law). Thus, R.C. 2745.01 is a valid exercise of the General

Assembly’s police power because R.C. 2745.01 is a codification and modification

of employer intentional tort case law.

{¶ 69} While the majority may prefer its own definition of “intentional

tort,” it does not have the right to usurp the General Assembly’s role in this regard

because “[j]udicial policy preferences may not be used to override valid legislative

enactments, for the General Assembly should be the final arbiter of public policy.”

State v. Smorgala (1990), 50 Ohio St.3d 222, 223, 553 N.E.2d 672, 674.

{¶ 70} Therefore, I would hold that pursuant to its police power, the General

Assembly had the authority to change and codify the law of employment intentional

torts pursuant to R.C. 2745.01. I would also hold that R.C. 2745.01 addresses acts

that occur outside the scope of employment; therefore, Section 35, Article II of the

Ohio Constitution is no impediment to its enactment.

Conclusion

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January Term, 1999

{¶ 71} In conclusion, I would find that R.C. 2745.01 does not violate

Section 34, Article II of the Ohio Constitution because it does not deprive

employees of a right to a remedy, but in fact provides an action for an employment

intentional tort. I would further find that R.C. 2745.01 does not violate Section 35,

Article II of the Ohio Constitution because the General Assembly derived the

authority to enact R.C. 2745.01 from its police power. Therefore, I dissent.

__________________

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