Johnson v. BP Chemicals, Inc.

Lundberg Stratton, J.,

dissenting. 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.

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).

In response to the crisis, in 1911, the General Assembly enacted Ohio’s first workers’ compensation law. See 102 Ohio Laws 524 el 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 *315 damages 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.

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.

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.

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’ 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:

*316 “(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.

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 .

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.

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.”

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 *317 for employees despite the clear proof that these injuries were part and parcel of the employment relationship.

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.

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

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 * *

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.

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:

“An employer * * * shall be subject to liability to an employee * * * for damages for an employment intentional tort.” (Emphasis added.)

This language does not remove a right to a remedy. It codifies it. Codification is not removal.

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 *318 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.

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 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 .

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.

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.

*319 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

The majority also finds R.C. 2745.01 unconstitutional because Section 35, Article II of the Ohio Constitution authorizes only legislation pertaining 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.

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.

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 General Assembly specifically stated that R.C. 2745.01 was to control actions not governed by Section 35, Article II of the Ohio Constitution.

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 *320 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.

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 .

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

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.