recognizing that § 4123.74 does not protect employers against their employees’ intentional tort claims
How later courts described this case
- recognizing that § 4123.74 does not protect employers against their employees’ intentional tort claims
- opining that the syllabus “states broadly what might be considered as accurate law” regarding an employee’s right to bring an intentional tort suit and that the syllabus established a “basic valid premise,” but strongly denying that any intentional or malicious tort had been alleged given the facts of the case, so that dismissal of the complaint was appropriate
- agreeing with the syllabus “as an abstract proposition of law” in that “intentional torts fall outside the workers’ compensation scheme,” but stating that “[w]e should not circumvent the statutory framework for workers’ compensation merely because a known risk existed. We should demand a virtual certainty”
- stating that insurance against intentional torts is against public policy
Written by the judges who cited it.
Distinguished
Distinguished by Vandemark v. Southland Corp., 38 Ohio St. 3d 1 (1988)
In footnote 7 of the Blankenship opinion, it was stated that Greenwatt was factually distinguishable on the basis that Greenwatt involved “omission” on the part of the employer, and not “commission.
The opinion
Locher, J.,
concurring in part and dissenting in part. This cause arises on a motion to dismiss for lack of subject-matter jurisdiction, Civ. R. 12(B)(1), and for failure to state a claim upon which relief can be granted, Civ. R. 12(B)(6). I agree with the syllabus as an abstract proposition of law. That is, intentional torts fall outside the workers’ compensation scheme, and jurisdiction for intentional torts done by employers to their employees lies in the Court of Common Pleas. Therefore, we need not concern ourselves with the hypothetical subject-matter jurisdiction question.
Rather, we should concentrate on the question of whether appellants have failed to state a claim. Civ. R. 12(B)(6). The majority correctly applies the test in O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242 : “ * * * it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” In this case, we examine appellants’ complaint and *621 determine whether they have alleged beyond doubt an intentional tort which will permit recovery by appellants outside the workers’ compensation system.
Appellants allege that appellees knew of the conditions that existed but failed to correct them, to warn appellants or to report these conditions to governmental authorities. Nevertheless, these allegations may not constitute intent. “[T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong.” Prosser on Torts (1971), Section 8, page 32 (footnote omitted). Appellants have not clearly alleged any degree of certainty.
The majority, however, concludes that “[n]o reasonable individual would equate intentional and unintentional conduct in terms of the degree of risk which faces an employee * * * .” I prefer the analysis of Professor Prosser. Every undertaking involves some risk. We should not circumvent the statutory framework for workers’ compensation merely because a known risk existed. We should demand a virtual certainty.
For this reason, the majority is correct in remanding this case to the trial court for a factual determination as to whether appellees committed an intentional tort or whether recovery should occur exclusively under the workers’ compensation system. The extent to which the members of this court disagree demonstrates that a finder of fact should resolve this case. We should make it clear to the trial court, however, that this court makes no decision as to whether appellants’ allegations necessarily constitute an intentional tort.
Accordingly, I concur in the judgment only to the extent that the majority leaves the question of intent to the finder of fact in the trial court. I do not concur in the syllabus as a proper statement of the law of this case, however. The ultimate question, as to whether appellees’ conduct was indeed an intentional tort, remains.