finding that a genuine issue of material fact existed where defendant pushed plaintiff to work far above a normal speed on an unfamiliar, unguarded machine because almost half of the employees had failed to report to work
How later courts described this case
- finding that a genuine issue of material fact existed where defendant pushed plaintiff to work far above a normal speed on an unfamiliar, unguarded machine because almost half of the employees had failed to report to work
- reversing summary judgment for employer where injury caused by employer’s removal of guard and employer allegedly knew removal of guard created a substantial risk of harm to employees
- “As part of his job duties, Fyffe was required to clean conveyer belts used in appellee’s production process.”
- "As part of his job duties, Fyffe was required to clean conveyor belts used in appellee's production process."
Written by the judges who cited it.
Later courts went against this
Declined to follow by Owens v. DSM Engineering Plastics, Inc., 1994 Ind. App. LEXIS 1470 (1994)
Because of the Baker decision, primarily, we reject the Owenses' request that we apply the rule set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, which established a lower threshold of proof of employer intent for the employee to overcome than was established by our supreme court in Baker.
The opinion
Douglas, J.,
concurring in judgment only. In my dissenting opinion in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 120 , 522 N.E. 2d 489, 507 , I said, in part, that “* * * [w]ith all due respect, I fear that our opinion [Van Fossen] will accomplish the seemingly impossible feat of leaving this area of the law more confused than we found it.” Through today’s majority opinion, that fact is now being conceded and certainly not a moment too soon.
*121 As is now being recognized by the majority, it is apparent from a number of cases recently coming before us that Van Fossen is being interpreted by many courts in this state in a manner which virtually precludes employees from prosecuting intentional tort claims against their employers. Such an interpretation of Van Fossen is understandable given the language contained in paragraphs five and six of the syllabus which suggests that if an employer knowingly subjects his or her employees to a “high” or “great” risk of harm, such conduct may not be considered intentional. The problem is, however, how “high” or “great” must a risk be before it can be said that the creation of the risk is substantially certain to produce injury? How high is “high”? How great is “great”?
Van Fossen , of course, does not answer these questions but, rather, serves to confuse the distinctions between recklessness on the one hand and intentional conduct on the other hand. In now “modifying” Van Fossen by removing such imprecise terms, the majority has taken an admirable first step in reestablishing that the test for “substantial certainty” is that found in Section 8A of 1 Restatement of the Law 2d, Torts (1965) 15. However, in doing so, the majority makes the following comments:
“Within the framework of the quoted syllabus language, acts of the employer that are termed a ‘high risk’ of harm, or ‘where the risk is great,’ could, in most instances, correctly be viewed as acts of recklessness. However, in a given instance, and within a certain fact pattern, such acts could equate to one that is substantially certain to result in harm to the employee, and reasonably raise a justiciable issue of an intentional tort. Although this is basically a matter of semantics, we do not wish a misreading of our syllabus language to result in an unreasonable application of the law. We conclude that a rational approach to eliminating possible misapplications of the law * * * would be to delete the above-quoted language in paragraphs five and six of the syllabus in Van Fossen. ”
The majority’s above-quoted “explanation” of what this court meant in Van Fossen contains the very same language that today’s majority realizes has caused so many problems in the determination of whether an act is “substantially certain” to produce injury. In this vein, I fear that today’s majority opinion will perpetuate the confusion caused by Van Fossen . Furthermore, if, as conceded by the majority, “semantics” is the problem, then maybe we should resurrect for this purpose that workable, satisfactory and time-honored principle of law — “probability versus possibility.” If an injury is the probable consequence of an act, then the act was substantially certain to have produced the injury. If an injury is not the probable consequence of an act, then the act creates only the possibility of injury and the act is either reckless or negligent — but not intentional.
Finally, I write separately to point out that no matter how vehemently the majority trumpets its belief that today’s opinion does not change the law of “intentional tort” liability, any knowledgeable reader need only compare the facts in the case at bar to, for instance, this court’s opinion in Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St. 3d 124 , 522 N.E. 2d 511 , in order to recognize that today’s majority has substantially changed the position of this court.
Sweeney, J., concurs in the foregoing opinion.