Houdek v. ThyssenKrupp Materials N.A., Inc.

[Cite as Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685.]

HOUDEK, APPELLEE, v. THYSSENKRUPP

MATERIALS N.A., INC., APPELLANT, ET AL.

[Cite as Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491,

2012-Ohio-5685.]

R.C. 2745.01—Employer intentional tort—Absent a deliberate intent to injure

another, an employer is not liable for a claim alleging an employer

intentional tort, and the injured employee’s exclusive remedy is within the

workers’ compensation system.

(No. 2011-1076—Submitted June 20, 2012—Decided December 6, 2012.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 95399, 2011-Ohio-1694.

_______________

O’DONNELL, J.

{¶ 1} ThyssenKrupp Materials N.A., Inc., appeals from a judgment of the

Eighth District Court of Appeals that reversed a grant of summary judgment in its

favor on claims that one of its supervisors had directed Bruce R. Houdek to work

in an aisle of a warehouse where he sustained injuries when a co-worker operating

a sideloader struck him. We are asked to consider the impact of a recently

enacted statute on our prior case decisions which held employers liable for

intentional torts occurring in the workplace when injuries were substantially

certain to occur.

{¶ 2} R.C. 2745.01(A), effective April 7, 2005, specifies that an employer

is not liable for an intentional tort unless the employee proves that “the employer

committed the tortious act with the intent to injure another or with the belief that

the injury was substantially certain to occur,” defined in Subdivision (B) as acting

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“with deliberate intent to cause an employee to suffer an injury, a disease, a

condition, or death.”

{¶ 3} The Eighth District Court of Appeals ignored this statutory

definition of “substantially certain,” concluding it resulted from a scrivener’s

error, and held that ThyssenKrupp could be held liable for Houdek’s injuries if it

“objectively believed the injury to Houdek was substantially certain to occur,”

notwithstanding the lack of proof of a deliberate intent to injure. Houdek v.

ThyssenKrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694, ¶ 46.

{¶ 4} Based upon our review of this record, no evidence exists that

ThyssenKrupp deliberately intended to injure Houdek by directing him to work in

the warehouse aisle. Accordingly, the judgment of the court of appeals is

reversed and the judgment of the trial court entered in favor of ThyssenKrupp is

reinstated.

Facts and Procedural History

{¶ 5} On October 10, 2008, Houdek injured his back putting pieces of

copper on a pallet while working at ThyssenKrupp’s Cleveland warehouse. He

returned to work on October 14, 2008, with light-duty restrictions, and Joseph

Matras, the plant manager, asked him to assist in relabeling inventory on

warehouse storage racks as part of a transition to a new inventory management

system.

{¶ 6} Replacing the labels on merchandise required Houdek to work in the

same aisles where workers on sideloaders pulled goods from racks 25 feet high.

A sideloader moves up and down the aisles with forks protruding toward the

merchandise but has the operator facing the rack, rather than the direction of

travel. At a shift meeting informing employees about the relabeling process, a

sideloader operator, George Krajacic, asked Matras, the plant manager, whether

he should rearrange his invoices to avoid pulling merchandise in aisles where

relabeling had started, but Matras indicated that this would not be necessary.

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{¶ 7} The record further reveals that ThyssenKrupp did not provide

reflective vests to employees working in dimly lit aisles, did not require the

placement of orange safety cones at the end of aisles in which employees were

working, and did not provide expandable gates to prevent machinery from

entering aisles where employees were working. However, it did direct employees

to alert sideloader operators before they began working in a specific aisle.

{¶ 8} Houdek told Krajacic, the second-shift sideloader operator, that he

would be working in the aisle between racks A and B. After working there for

approximately five hours, Houdek heard the whirring sound of an approaching

sideloader. Forgetting that Houdek had told him that he would be working in that

aisle, Krajacic drove the sideloader down the aisle between racks A and B, a

narrow aisle which dead ends at a wall; thus, Houdek had no means of escape,

and the sideloader pinned him against a scissor lift he had been using, breaking

his leg below the knee and shattering his ankle.

{¶ 9} Houdek sued ThyssenKrupp, asserting the company had deliberately

intended to injure him by directing him to work in the aisle with knowledge that

injury would be certain or substantially certain to occur. ThyssenKrupp moved

for summary judgment. The trial court granted the motion and entered summary

judgment for ThyssenKrupp, concluding that Houdek failed to show that his

employer had intended to injure him.

{¶ 10} The Eighth District Court of Appeals reversed, stating that the

terms used in R.C. 2745.01(A) are in “harmonic dissonance” with the definition

of “substantially certain” in R.C. 2745.01(B) and that the court preferred to

believe that “paragraph (B) is a scrivener’s error.” Houdek, 2011-Ohio-1694,

¶ 42. As a result, the appellate court held that an injured employee may prove an

employer intentional tort by showing that the employer acted with an intent to

injure the employee or with the belief that the injury was substantially certain to

occur. Id. The court applied an objective test as to what a reasonably prudent

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employer would believe and determined that “there are genuine issues of material

fact, particularly given the specific supervisory directives to both Houdek and the

sideloader operator and the sideloader operator’s warning to the warehouse

manager, that [ThyssenKrupp] objectively believed the injury to Houdek was

substantially certain to occur.” Houdek at ¶ 45-46.

Arguments on Appeal

{¶ 11} ThyssenKrupp relies on this court’s recent decisions in Kaminski v.

Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d

1066, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280,

2010-Ohio-1029, 927 N.E.2d 1092, for the proposition that R.C. 2745.01 permits

recovery for an employer intentional tort only when the employer acts with the

specific intent to cause injury. It maintains that recognizing a scrivener’s error in

R.C. 2745.01 conflicts with our case law and ignores the intent of the General

Assembly to curtail the common law cause of action. Although ThyssenKrupp

concedes that intent may be proven by circumstantial evidence, it argues that the

court of appeals deviated from the intent-to-injure standard by applying an

objective test—what a reasonably prudent employer would believe—rather than a

subjective test—what the employer actually believed. ThyssenKrupp maintains

that there is no evidence of a specific intent to injure Houdek.

{¶ 12} Houdek notes that R.C. 2745.01(C) establishes a presumption that

the employer intended to injure the worker if the employer deliberately removes a

safety guard, and he asserts that this presumption should apply in this case,

because ThyssenKrupp failed to install better lighting, to require the use of safety

cones to alert sideloader operators that Houdek would be working in the aisle, or

to provide other protective gear such as reflective vests or expandable gates.

Houdek argues that because the subjective mental state is impossible to prove

absent a confession, intent to injure may be established through the employer’s

conduct. Thus, he maintains that there is sufficient evidence that ThyssenKrupp

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intended to injure him: the company had been warned of the danger posed to

workers in the aisles only days before the accident, yet it took no action to

safeguard Houdek before directing him to work there.

{¶ 13} Accordingly, we confront the question whether a claimant bringing

an employer intentional tort claim is required to prove that the employer acted

with a deliberate intent to injure.

Employer Intentional Tort

{¶ 14} In Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d

608, 433 N.E.2d 572 (1982), this court recognized a cause of action for an

employer’s intentional tort against its employee, holding that because intentional

tort claims do not arise out of the employment relationship, the workers’

compensation laws do not provide immunity from suit. The court concluded that

“R.C. 4123.74 does not bestow upon employers immunity from civil liability for

their intentional torts and an employee may resort to a civil suit for damages.” Id.

at 613.

{¶ 15} Further, in Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472

N.E.2d 1046 (1984), the court rejected the proposition that an employer's

“specific intent to injure is necessary to a finding of intentional misconduct.”

Relying on Prosser & Keeton, Law of Torts, Section 8, at 35-36 (5th Ed.1984)

and 1 Restatement of the Law 2d, Torts, Section 8A, at 15 (1965), the court

defined “intent” to include not only the specific consequences that an actor

desires, but also those consequences that an actor believes are substantially certain

to result from the conduct. Id. at 94-95. The court therefore held, at paragraph

one of the syllabus: “An intentional tort is an act committed with the intent to

injure another, or committed with the belief that such injury is substantially

certain to occur.”

{¶ 16} In response to the court’s holdings in Blankenship and Jones, the

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

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Ohio Laws, Part I, 718, 733-737, effective Aug. 22, 1986. Although former R.C.

4121.80(G)(1) defined “intentional tort” as an act committed with the intent to

injure another or committed with the belief that the injury was substantially

certain to occur, the statute defined “substantially certain” to mean that the

employer had acted “with deliberate intent to cause an employee to suffer injury,

disease, condition, or death.” 141 Ohio Laws, Part I, at 736. Thus, the legislature

attempted to limit the common law employer intentional tort by eliminating

liability for injuries that were substantially certain to occur but were not intended

by the employer.

{¶ 17} In Brady v. Safety–Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d

722 (1991), however, we held: “R.C. 4121.80 exceeds and conflicts with the

legislative authority granted to the General Assembly pursuant to Sections 34 and

35, Article II of the Ohio Constitution, and is unconstitutional in toto.” Id. at

paragraph two of the syllabus. The common law cause of action therefore

remained intact.

{¶ 18} We then further clarified the elements of the employer intentional

tort in Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115, 570 N.E.2d 1108 (1991):

(1) knowledge by the employer of the existence of a dangerous

process, procedure, instrumentality or condition within its business

operation; (2) knowledge by the employer that if the employee is

subjected by his employment to such dangerous process,

procedure, instrumentality or condition, then harm to the employee

will be a substantial certainty; and (3) that the employer, under

such circumstances, and with such knowledge, did act to require

the employee to continue to perform the dangerous task.

Id., at paragraph one of the syllabus.

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{¶ 19} In response, the General Assembly enacted former R.C. 2745.01, in

Am.H.B. No. 103, 146 Ohio Laws, Part I, 756, 760, effective Nov. 1, 1995, and

declared in uncodified Section 3 of the act its intent to supersede the common law

employer intentional tort with a more limited statutory cause of action. In the

1995 version of R.C. 2745.01, the legislature defined “employment intentional

tort” to mean “ ‘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 sic.) Johnson v. BP Chems., Inc., 85

Ohio St.3d 298, 306, 707 N.E.2d 1107 (1999), quoting former R.C.

2745.01(D)(1).

{¶ 20} In Johnson, this court held the 1995 version of R.C. 2745.01

“unconstitutional in its entirety,” id. at the syllabus, and stated that “any statute

created to provide employers with immunity from liability for their intentional

tortious conduct cannot withstand constitutional scrutiny,” id. at 304.

R.C. 2745.01

{¶ 21} Following that history, the General Assembly enacted the current

version of R.C. 2745.01, which provides:

(A) In an action brought against an employer by an

employee, or by the dependent survivors of a deceased employee,

for damages resulting from an intentional tort committed by the

employer during the course of employment, the employer shall not

be liable unless the plaintiff proves that the employer committed

the tortious act with the intent to injure another or with the belief

that the injury was substantially certain to occur.

(B) As used in this section, “substantially certain” means

that an employer acts with deliberate intent to cause an employee

to suffer an injury, a disease, a condition, or death.

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(C) 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 intent to injure another if an

injury or an occupational disease or condition occurs as a direct

result.

(D) This section does not apply to claims arising during the

course of employment involving discrimination, civil rights,

retaliation, harassment in violation of Chapter 4112. of the Revised

Code, intentional infliction of emotional distress not compensable

under Chapters 4121. and 4123. of the Revised Code, contract,

promissory estoppel, or defamation.

{¶ 22} The constitutionality of this statute is not questioned in this case.

We upheld R.C. 2745.01 against various constitutional challenges in Kaminski v.

Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d

1066, and its companion case, Stetter v. R.J. Corman Derailment Servs., L.L.C.,

125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, explaining that “the

General Assembly responded to this court's previous decisions by eliminating

many of the features identified by this court as unreasonable, onerous, and

excessive. Thus, in reviewing R.C. 2745.01, we find a more limited statute than

those previously held to be unconstitutional.” Stetter at ¶ 50.

{¶ 23} Nor is there any question as to the intent of the General Assembly

when it enacted this statute. In Kaminski, we emphasized that “the General

Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in

2745.01(B), is to permit recovery for employer intentional torts only when an

employer acts with specific intent to cause an injury, subject to subsections (C)

and (D).” (Emphasis added.) Id. at ¶ 56. We further indicated:

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R.C. 2745.01 appears to harmonize the law of this state with the

law that governs a clear majority of jurisdictions.

“[T]he common-law liability of the employer cannot, under

the almost unanimous rule, be stretched to include accidental

injuries caused by the gross, wanton, wilful, deliberate, intentional,

reckless, culpable, or malicious negligence, breach of statute, or

other misconduct of the employer short of a conscious and

deliberate intent directed to the purpose of inflicting an injury.”

(Footnote omitted.) 6 Larson’s Workers’ Compensation Law

(2008), Section 103.03.

(Footnote omitted.) Kaminski at ¶ 99-100. Moreover, in Stetter, we observed that

“R.C. 2745.01 embodies the General Assembly's intent to significantly curtail an

employee's access to common-law damages for what we will call a ‘substantially

certain’ employer intentional tort.” Stetter at ¶ 27.

{¶ 24} It is therefore manifest that R.C. 2745.01(B) is not the result of a

scrivener’s error. As we stated in both Kaminski and Stetter, the General

Assembly intended to limit claims for employer intentional torts to situations in

which an employer acts with the “specific intent” to cause an injury to another.

Kaminski at ¶ 56; Stetter at ¶ 26. See also 6 Larson’s Workers’ Compensation

Law, Section 103.03, 103-7 to 103-8 (2001) (explaining that an employer’s

“knowingly permitting a hazardous work condition to exist [and] knowingly

ordering employees to perform an extremely dangerous job * * * falls short of the

kind of actual intention to injure that robs the injury of accidental character”

(footnotes omitted)).

{¶ 25} In accord with this authority, absent a deliberate intent to injure

another, an employer is not liable for a claim alleging an employer intentional

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tort, and the injured employee’s exclusive remedy is within the workers’

compensation system.

{¶ 26} Here, there is no evidence that ThyssenKrupp deliberately intended

to injure Houdek when its management directed him to work in the aisle. In his

deposition, Krajacic asserted that Matras had disregarded his suggestion that he

not pull goods in an aisle while employees worked there and that after the

accident, Matras had said he had known that “something like this could happen

and * * * didn’t do anything about it.” However, Matras denied making this

statement, and Krajacic further testified that neither he nor management at

ThyssenKrupp intended to injure Houdek; rather, Krajacic explained that he had

forgotten that Houdek was working in the aisle. Thus, although the evidence

shows that ThyssenKrupp may have placed Houdek in a potentially dangerous

situation, it does not demonstrate that either management or Krajacic deliberately

intended to injure him.

{¶ 27} Further, R.C. 2745.01(C) is not applicable here. That subdivision

provides,

Deliberate removal by an employer of an equipment safety guard

* * * creates a rebuttable presumption that the removal * * * was

committed with intent to injure another if an injury or an

occupational disease or condition occurs as a direct result.

The plain meaning of the word “remove” is “to move by lifting, pushing aside, or

taking away or off.” Webster’s Third New International Dictionary 1921 (1986).

There is no evidence that adequate lighting conditions and safety devices such as

orange cones, reflective vests, and retractable gates can be considered “an

equipment safety guard” as that term is used in the statute. And even if such

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evidence existed, there is no evidence in the record that ThyssenKrupp

deliberately removed any of these items.

{¶ 28} Here, Houdek’s injuries are the result of a tragic accident, and at

most, the evidence shows that this accident may have been avoided had certain

precautions been taken. However, because this evidence does not show that

ThyssenKrupp deliberately intended to injure Houdek, pursuant to R.C. 2745.01,

ThyssenKrupp is not liable for damages resulting from an intentional tort.

Conclusion

{¶ 29} The Ohio Constitution vests the General Assembly, not the courts,

with the legislative powers of government. Our role, in exercise of the judicial

power granted to us by the Constitution, is to interpret and apply the law enacted

by the General Assembly, not to rewrite it. R.C. 2745.01 limits claims against

employers for intentional torts to circumstances demonstrating a deliberate intent

to cause injury to an employee, and because there is no evidence in this record of

a tortious act committed by the employer with a deliberate intent to cause Houdek

to suffer an injury, we reverse the judgment of the court of appeals and reinstate

the judgment of the trial court.

Judgment reversed.

O’CONNOR, C.J., and LUNDBERG STRATTON, LANZINGER, CUPP, and

MCGEE BROWN, JJ., concur.

PFEIFER, J., dissents.

_________________

PFEIFER, J., dissenting.

I

{¶ 30} The majority opinion is wrong. The majority states that “R.C.

2745.01 limits claims against employers for intentional torts to circumstances

demonstrating a deliberate intent to cause injury to an employee,” majority

opinion at ¶ 29, and frames the issue in this case as whether ThyssenKrupp

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Materials N.A., Inc. (“ThyssenKrupp”) deliberately intended to injure Bruce

Houdek. But R.C. 2745.01 does not limit intentional-tort claims against

employers to “circumstances demonstrating a deliberate intent to cause injury to

an employee.” Pursuant to R.C. 2745.01(C), “[d]eliberate removal by an

employer of an equipment safety guard * * * creates a rebuttable presumption

that the removal * * * was committed with intent to injure another if an injury

* * * occurs as a direct result.” Only the removal of the safety equipment needs

to be deliberate under the statute; if the injury flows from the removal of safety

equipment, an injured worker needs to prove nothing further as to the employer’s

intent to successfully prosecute an intentional-tort claim against the employer.

The worker need not prove that the employer was trying to hurt him—intent is

presumed by the removal of safety equipment. That is, the safety equipment must

be deliberately removed but the injury need not be deliberately caused for an

injured worker to recover pursuant to R.C. 2745.01(C). The majority thus

overstates the ruthlessness of R.C. 2745.01.

{¶ 31} R.C. 2745.01(A) presents two ways for an injured worker to

successfully prosecute a workplace intentional-tort claim. An employer can be

held liable for damages if (1) “the plaintiff proves that the employer committed

the tortious act with the intent to injure another” or (2) “the plaintiff proves that

the employer committed the tortious act * * * with the belief that the injury was

substantially certain to occur.” R.C. 2745.01(B) applies only to the “substantially

certain” portion of R.C. 2745.01(A); it uses the term “deliberate intent” as part of

the definition of “substantially certain.” It reads: “As used in this section,

‘substantially certain’ means that an employer acts with deliberate intent to cause

an employee to suffer an injury, a disease, a condition, or death.” R.C.

2745.01(B).

{¶ 32} Thus, when adding the definition of “substantially certain” to the

mix, R.C. 2745.01(A) states that an employer can be held liable for an intentional

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tort if the employer acted with an “intent to injure” or with a “deliberate intent to

cause * * * an injury.”

{¶ 33} An intent to injure can be inferred from the facts and circumstances

of a particular case; otherwise, an injured worker would be dependent on an

employer’s confession to make his case. Again, R.C. 2745.01(C) states that an

intent to injure can be inferred from the “[d]eliberate removal * * * of an

equipment safety guard.” In this case, the employer’s intent to injure could also

be inferred from its behavior in sending an already injured Houdek into a dimly

lit, narrow, dead-end aisle where a sideloader would be likely to enter, knowing

that it was a dangerous situation. Houdek presented enough evidence that a trier

of fact could determine that ThyssenKrupp intended to injure him.

{¶ 34} Also, the “[d]eliberate removal * * * of an equipment safety guard”

in R.C. 2745.01(C) should include the failure to deploy safety equipment that the

employer has on site. For example, in this case, the employer’s failure to place a

safety cone at the entrance to the aisle in which Houdek was working should

satisfy R.C. 2745.01(C). “ ‘[E]quipment safety guard’ has a simple meaning:

equipment that is used as a safety guard.” Hewitt v. L.E. Myers Co., 134 Ohio

St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 36 (Pfeifer, J., dissenting). Safety

cones fit within that definition.

II

{¶ 35} Houdek raised several arguments that, if adopted by the majority,

would go a long way toward demonstrating that injured workers still have a right

to a remedy for workplace intentional torts. The majority does not, and workers,

for the most part, do not. The appellate court below quoted at length from my

dissent in Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280,

2010-Ohio-1029, 927 N.E.2d 1092, in which I lamented the extinguishment of

injured workers’ right to a remedy for workplace intentional torts. The court

wrote, “The appellant * * * lost his leg, lost his job, and will lose his right to fair

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recompense, if Justice [Pfeifer’s] prediction about the most recent version of R.C.

2745.01 is the correct one.” Houdek v. ThyssenKrupp Materials N.A., Inc., 8th

Dist. No. 95399, 2011-Ohio-1694, ¶ 1. The court below chose to believe that

recovery could still exist for an injured worker like Houdek:

Does [R.C. 2745.01] constrain common law employer tort

as the Kaminski [v. Metal & Wire Prods. Co., 125 Ohio St.3d 250,

2010-Ohio-1027, 927 N.E.2d 1066,] majority holds, or does it, as

Justice Pfeifer predicts, abolish it? Taking the majority at its

written word, we find merit to Houdek’s appeal and reverse the

trial court's judgment granting summary judgment in favor of

Krupp and against both Houdek and the BWC. If the facts and

circumstances of this case do not present genuine issues of material

fact as to the existence of an employer tort, then none shall.

Id. at ¶ 38.

{¶ 36} I suppose that “none shall.” The court below also wrote what the

consequences would be if my dire evaluation of the law was indeed correct:

As a cautionary note, if Justice Pfeifer is correct, Ohio

employees who are sent in harm's way and conduct themselves in

accordance with the specific directives of their employers, if

injured, may be discarded as if they were broken machinery to then

become wards of the Workers' Compensation Fund. Such a policy

would spread the risk of such employer conduct to all of Ohio's

employers, those for whom worker safety is a paramount concern

and those for whom it is not. So much for “personal

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responsibility” in the brave, new world of corporations are real

persons.

Id. at ¶ 39.

{¶ 37} More’s the pity.

____________________

Friedman, Domiano & Smith Co., L.P.A., Stephen S. Vanek, David R.

Grant, and Jeffrey H. Friedman; and Smith & Condeni, L.L.P., Joseph A.

Condeni, and Stacey Walley, for appellee.

Reminger Co., L.P.A., Gregory G. Guice, Clifford C. Masch, and Brian D.

Sullivan, for appellant.

Tucker Ellis, L.L.P., and Benjamin C. Sassé, urging reversal for amicus

curiae Ohio Association of Civil Trial Attorneys.

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

Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.

Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A.

Bowman, and Jonathan M. Ashton, urging affirmance for amici curiae Ohio

Conference of Teamsters and Teamsters Local 20.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for

amicus curiae Ohio Association for Justice.

______________________

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