Can Ohio Employers Still Be Sued For Intentional Workplace Injuries?

by michael on February 21, 2011

In 1982, the Ohio Supreme Court first held in Blankenship v. Cincinnati Milacron Chemicals, Inc. that an employee had the right to sue the employer for damages for intentional infliction of bodily injury.The Court noted that the employer’s legal immunity had always been for negligent acts and not for intentional conduct.In 1984, the Ohio Supreme Court, in the case of Jones v. VIP Dev.Co., defined an intentional tort as an act committed with the intent to injure another, or committed with the belief that injury is substantially certain to occur. Later Ohio court cases expanded the employer intentional tort doctrine. In 2005, the Ohio legislature passed R.C. Sec. 2745.01 which limited intentional torts to those  employer acts which establish deliberate intent to cause an employee to suffer an injury, a disease, a condition or death. In the case of Kaminski v.Metal & Wire Products Co. (2010) the Ohio Supreme Court, in a 6-1 decision, upheld the constitutionality of this statute. In his dissent, Justice Paul Pfeifer wrote that tightening the definition of intentional workplace tort “defines the cause of action into oblivion” as an “employee may recover damages under the statute only if his employer deliberately intends to harm him” .As Justice Pfeifer commented : “are we to believe that criminally psychotic employers are really a problem that requires legislation in Ohio?” Some commentators have sarcastically stated that it may be easier to secure a conviction for first degree murder than to have an employer found liable in damages for an intentional tort in Ohio.

Although it is conceded that an injured Ohio worker now bears an exceptionally high burden of proving that the employer intended to injure him/her, the legislature left open some exceptions to the “deliberate intent” requirement. R.C. Sec. 2745.01(C) states that“deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttal presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or a condition occurs as a direct result”.Thus, if an employer removes a safety wrist pull-back device on a punch press and, as a direct result, the employee has her hand amputated, the employer may be liable in damages for a workplace intentional tort.

There was a recent employer intentional tort case in Cleveland Ohio which may have opened up the door a little further.Larry Hewitt, while working as an apprentice lineman for L.E. Myers Company, suffered a serious electrical shock and burns of his hand and arm which he claimed was directly caused by the employer telling him to wear leather gloves rather than rubberized gloves and sleeves around high voltage electrical lines. The jury returned a verdict for almost $598,000 in compensatory damages against the employer for committing an intentional tort. The case has been appealed to the Eighth District Court of Appeals by the employer. Is there really a difference between removing pull-back devices on a punch press and failing to provide shock-proof insulated safety gloves around high voltage lines? This case appeared in a featured Cleveland Plain Dealer article by Alison Grant on 12-8-10.

 

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