[Cite as Sampson v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 418, 2012-Ohio-570.]
SAMPSON, APPELLEE, v. CUYAHOGA METROPOLITAN HOUSING
AUTHORITY ET AL., APPELLANTS.
[Cite as Sampson v. Cuyahoga Metro. Hous. Auth.,
131 Ohio St.3d 418, 2012-Ohio-570.]
R.C. Chapter 2744—Political-subdivision tort liability—Immunity—R.C.
2744.09(B)—Exception to immunity for civil actions by an employee
“relative to any matter that arises out of the employment relationship
between the employee and the political subdivision”—Civil actions
alleging intentional torts may qualify as matters that arise out of the
employment relationship—Political-subdivision employer not immune
from liability merely because employee alleges intentional tort.
(No. 2010-1561—Submitted September 20, 2011—Decided February 16, 2012.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 93441,
188 Ohio App.3d 250, 2010-Ohio-3415.
__________________
SYLLABUS OF THE COURT
1. When an employee of a political subdivision brings a civil action against the
political subdivision alleging an intentional tort, that civil action may
qualify as a “matter that arises out of the employment relationship” within
the meaning of R.C. 2744.09(B).
2. An employee’s action against his or her political-subdivision employer arises
out of the employment relationship between the employee and the political
subdivision within the meaning of R.C. 2744.09(B) if there is a causal
connection or a causal relationship between the claims raised by the
employee and the employment relationship.
__________________
SUPREME COURT OF OHIO
CUPP, J.
{¶ 1} We are asked to determine whether R.C. 2744.09(B), an exception
to political-subdivision immunity from tort liability, applies in a civil action for
damages filed by an employee who alleges that his political-subdivision employer
committed an intentional tort against him and engaged in negligent conduct. We
conclude that R.C. 2744.09(B) may apply in such a circumstance, and we affirm
the judgment of the court of appeals.
I. Background
{¶ 2} Darrell Sampson was employed by the Cuyahoga Metropolitan
Housing Authority (“CMHA”) in its maintenance department as a Serviceman V
plumber. In 2004, CMHA began an investigation into possible employee misuse
of CMHA gasoline credit cards as a result of an anonymous tip that CMHA
employees were using CMHA cards to fuel their personal cars. At the conclusion
of the investigation, the Cuyahoga County prosecutor gave the CMHA police
approval to arrest 13 CMHA maintenance-department employees. After
considering various alternatives, CMHA officials decided to arrest the 13 suspects
at a scheduled meeting of maintenance-department employees at a CMHA
maintenance warehouse.
{¶ 3} Sampson was arrested during the employee meeting after he and
the other 12 employees were called to a separate area out of view of the meeting.
When Sampson was escorted from the warehouse and placed into a police
vehicle, news media were in the parking lot outside. After the arrests, CMHA
issued a press release and held a press conference at its headquarters announcing
the arrests. Sampson was taken to jail and released the next day. CMHA placed
Sampson on paid administrative leave.
{¶ 4} The county prosecutor charged, and the grand jury indicted,
Sampson for the felony of theft in office and felony misuse of credit cards. After
Sampson was indicted on the charges, CMHA terminated Sampson’s
2
January Term, 2012
employment. The day before Sampson’s criminal trial, the company that issued
the gas credit cards, upon being contacted for the first time by the prosecutor,
declined to send a representative to testify about the credit-card records. The
prosecutor had not subpoenaed any company representative to compel the
company’s presence at the trial. The charges against Sampson were then
dismissed with prejudice by the county prosecutor.
{¶ 5} Sampson filed a grievance pursuant to the terms of his union
contract, and an arbitrator sustained the grievance, concluding that CMHA had
failed to present any evidence at the arbitration hearing that Sampson participated
in gasoline theft. Based on his determination that CMHA terminated Sampson
without just cause, the arbitrator ordered that Sampson be reinstated to his former
position with full restitution of his seniority and lost wages and benefits.
Sampson returned to work for CMHA as a Serviceman V, but Sampson
contended that upon his return, the atmosphere was no longer tolerable, and he
later resigned.
{¶ 6} Sampson filed a complaint in which he raised various intentional-
tort and negligence claims arising out of his arrest by CMHA.1 CMHA filed a
motion for judgment on the pleadings with respect to all claims, and the trial court
granted that motion in part, dismissing only the claim for negligent infliction of
emotional distress. CMHA later filed a motion for summary judgment on all the
remaining claims, alleging immunity from suit under R.C. Chapter 2744, the
Political Subdivision Tort Liability Act, but the trial court denied the motion,
finding that a genuine issue of material fact still existed as to whether CMHA’s
conduct was wanton or reckless. But the trial court also concluded that the
1. The claims were intentional infliction of emotional distress, negligent infliction of emotional
distress, abuse of process, and negligent misidentification.
3
SUPREME COURT OF OHIO
express exception to immunity contained in R.C. 2744.09(B) did not apply,
because Sampson’s claims did not arise out of the employment relationship.
{¶ 7} CMHA appealed from the trial court’s order under R.C.
2744.02(C). The appellate court concluded that the express exception to
immunity in R.C. 2744.09(B) prevented CMHA from raising immunity pursuant
to R.C. Chapter 2744 and affirmed. Sampson v. Cuyahoga Metro. Hous. Auth.,
8th Dist. No. 93441, 2010-Ohio-1214, 2010 WL 1115797. A divided Eighth
District on rehearing en banc affirmed. 188 Ohio App.3d 250, 2010-Ohio-3415,
935 N.E.2d 98. We accepted CMHA’s discretionary appeal. 127 Ohio St.3d
1460, 2010-Ohio-6008, 938 N.E.2d 362.
II. Political-Subdivision Tort Liability
{¶ 8} In 1985, the General Assembly enacted R.C. Chapter 2744, the
Political Subdivision Tort Liability Act. 141 Ohio Laws, Part I, 1699. This act
sets forth the general rule that political subdivisions are not liable for damages in
civil actions for injury, death, or loss to person or property allegedly caused by
any act or omission of the political subdivision in connection with a governmental
or proprietary function. R.C. 2744.02(A)(1). The act also contains exceptions to
a political subdivision’s immunity, as well as certain defenses to those exceptions.
See, e.g., R.C. 2744.02(B), 2744.03, and 2744.09.
{¶ 9} CMHA argues that it is immune from Sampson’s suit pursuant to
the general rule of immunity contained in R.C. 2744.02. The parties do not
dispute that CMHA is a metropolitan housing authority created pursuant to R.C.
3735.27. As a consequence, CMHA is a “body corporate and politic,” R.C.
3735.31, and therefore a political subdivision entitled to invoke the immunity
provisions of R.C. Chapter 2744. R.C. 2744.01(F).
{¶ 10} In response, Sampson contends that R.C. 2744.09(B) applies to
except his claim from political-subdivision immunity. R.C. 2744.09(B) states:
4
January Term, 2012
This chapter does not apply to, and shall not be construed
to apply to, the following:
***
(B) Civil actions by an employee, or the collective
bargaining representative of an employee, against his political
subdivision relative to any matter that arises out of the employment
relationship between the employee and the political subdivision.
{¶ 11} Sampson argues that his “civil action” against his employer,
CMHA, is “relative to any matter that arises out of the employment relationship
between” him and CMHA.2 Thus, Sampson continues, the plain language of R.C.
2744.09(B) precludes CMHA from invoking political-subdivision immunity.
{¶ 12} CMHA contends that Sampson’s intentional-tort claim is not a
“matter” that “arises out of the employment relationship,” because an employer’s
action in committing an intentional tort against an employee in the workplace
necessarily occurs outside the employment relationship and cannot arise from it.
In making this argument, CMHA relies on a principle from workers’
compensation law first announced by this court in Blankenship v. Cincinnati
Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982). That principle
states that the immunity provided to employers by the Workers’ Compensation
Act, specifically by R.C. 4123.74, applies only to an injury received “in the
course of or arising out of” the injured employee’s employment. Blankenship
addressed the right of an employee to file a private lawsuit against the employer
for tort damages, in addition to claiming workers’ compensation benefits.
According to the rationale applied by the Blankenship court, an employee could
pursue a common-law action for damages in addition to obtaining workers’
2. In contrast, R.C. 2744.09(C) applies to claims in which the employee challenges the terms of
his or her employment with the political subdivision, including wages, hours, or working
conditions.
5
SUPREME COURT OF OHIO
compensation benefits because when an employer intentionally harms an
employee, that injury does not “aris[e] out of” the employment relationship, and
the immunity provided to employers within the Workers’ Compensation Act falls
away. CMHA’s argument further relies on a statement from a subsequent case in
which the court approved and followed Blankenship:
When an employer intentionally harms his employee, that act
effects a complete breach of the employment relationship, and for
purposes of the legal remedy for such an injury, the two parties are
not employer and employee, but intentional tortfeasor and victim.
* * * The [employee’s] lawsuit has no bearing upon any question
relating to employment.
Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 634, 576 N.E.2d 722 (1991).
For ease of discussion, we will refer to this very specific type of intentional tort in
the workplace as a Blankenship tort, although its definition has been significantly
refined in the years since that case was decided. See R.C. 2745.01 et seq. (current
codification of the Blankenship tort); Kaminski v. Metal & Wire Prods. Co., 125
Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 14-57 (detailing the history
of the evolution of the Blankenship tort).
{¶ 13} We must now consider whether R.C. 2744.09(B) was meant to
incorporate the Blankenship rationale. We hold that it was not. Initially, there is
no hint in the language of the statute of any such intention. The similarity of the
phrase “relative to any matter that arises out of the employment relationship” in
R.C. 2744.09(B) to the language of R.C. 4123.74 does not justify importing
Blankenship’s analysis. R.C. 2744.09(B) is designed to protect employees by
allowing them to recover against their employers, who would otherwise be
entitled to immunity under R.C. Chapter 2744. To undo those protections in cases
6
January Term, 2012
of the worst of employer misconduct would violate the language and frustrate the
purpose of the provision.
{¶ 14} Moreover, we will not presume, without more evidence in the
language of R.C. 2744.09(B), that the legislature meant to invoke the Blankenship
rationale in the context of political-subdivision immunity. This is because the
context of political-subdivision immunity is different from workers’
compensation immunity. In this regard, the foundation for the workers’
compensation framework is the Ohio Constitution, Article II, Section 35. This
constitutional provision was designed to enable the legislature to craft laws that
reflect “ ‘the policy compromises necessary to balance the obligations and rights
of the employer and employee in the workers’ compensation system.’ ”
Kaminski, 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 74-75,
quoting Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-Ohio-6751,
879 N.E.2d 201, ¶ 23-24. The Workers’ Compensation Act that we know today is
the result of that balancing of interests: workers relinquish their common-law
remedies in exchange for a more certain recovery, while employers relinquish
common-law defenses in exchange for a more limited liability. Blankenship, 69
Ohio St.2d at 614, 433 N.E.2d 572; Brady, 61 Ohio St.3d at 633-634, 576 N.E.2d
722. This limitation of liability was achieved by the grant of immunity from
common-law suits contained in R.C. 4123.74.
{¶ 15} In contrast, R.C. 2744.09(B) must be read in light of the entirely
different policies underlying the Political Subdivision Tort Liability Act. “R.C.
Chapter 2744 is the General Assembly’s response to the judicial abrogation of
common-law sovereign immunity. Its manifest purpose is the preservation of the
fiscal integrity of political subdivisions. Wilson v. Stark Cty. Dept. of Human
Servs. (1994), 70 Ohio St.3d 450, 453, 639 N.E.2d 105.” Estate of Graves v.
Circleville, 124 Ohio St.3d 339, 2010-Ohio-168, 922 N.E.2d 201, ¶ 12. Unlike
the Workers’ Compensation Act, R.C. Chapter 2744 is not the result of any
7
SUPREME COURT OF OHIO
bargain between employer and employee, because the employer-employee
relationship is not its subject. Rather, R.C. 2744.09(B) was enacted in the context
of political-subdivision immunity.
{¶ 16} Upon consideration of the differences between workers’
compensation policies and political-subdivision-tort-immunity policies, we
decline to incorporate the Blankenship rationale and corresponding line of cases
into a political-subdivision-immunity context and the exception contained in R.C.
2744.09(B). The policies underlying workers’ compensation are simply too
different from political-subdivision-tort-immunity policies. And when R.C.
2744.09(B) is read without the Blankenship gloss, the phrase “relative to any
matter that arises out of the employment relationship” is clear. The phrase
requires only a causal connection between the subject matter of the civil action
and the employment relationship.
{¶ 17} Therefore, in accordance with the foregoing discussion and with
our duty to apply plain statutory language as written, we hold that when an
employee of a political subdivision brings a civil action against the political
subdivision alleging an intentional tort, that civil action may qualify as a “matter
that arises out of the employment relationship” within the meaning of R.C.
2744.09(B). Further, we hold that an employee’s action against his or her
political-subdivision employer arises out of the employment relationship between
the employee and the political subdivision within the meaning of R.C. 2744.09(B)
if there is a causal connection or a causal relationship between the claims raised
by the employee and the employment relationship.
{¶ 18} Having concluded that Blankenship has no relevance to political-
subdivision immunity, we now must determine whether there is any genuine issue
of material fact concerning whether Sampson’s civil action is one that is “relative
to any matter that arises out of the employment relationship” within the meaning
of R.C. 2744.09(B). The trial court found that there was no genuine issue and that
8
January Term, 2012
R.C. 2744.09(B) did not apply. The appellate court disagreed, holding that “all of
Sampson’s claims, including his claim for intentional infliction of emotional
distress, clearly arose out of his employment relationship, thus barring CMHA
from asserting immunity pursuant to R.C. 2744.09(B).” We agree with the court
of appeals.
{¶ 19} Because this case was decided on summary judgment, our review
is de novo. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d
712, ¶ 8. We hold that the evidence presented to the trial court established a
genuine issue of material fact that would allow Sampson’s claims to survive
summary judgment. As set forth below, the facts in this case could lead
reasonable minds to conclude that Sampson’s claims arose out of his employment
relationship with CMHA. See Civ.R. 56(C).
{¶ 20} First, the record contains evidence that the alleged tort arose from
an accusation by the employer that the employee had stolen from the employer by
using the employer-owned gasoline credit cards for personal needs. This was not,
for example, conduct that was alleged to have been committed by the employee
against a third party with no relationship to the employer. Rather, CMHA
accused Sampson of engaging in misconduct in his duties as a plumber, one of
which included responding to CMHA service calls and emergencies throughout
the county in a CMHA-owned vehicle assigned by CMHA to the employees on a
daily basis. CMHA had policy statements pertaining to the employees’ use of the
gas cards, in which possible disciplinary actions for improper use of the cards
were detailed. Moreover, CMHA investigated all the plumbers in the
maintenance department, not just Sampson.
{¶ 21} Second, Sampson presented evidence that the investigation of
CMHA employees was conducted entirely by CMHA police, based on CMHA
documents. Third, Sampson adduced evidence that his arrest occurred at a
CMHA-called mandatory meeting of all CMHA employees as a part of their
9
SUPREME COURT OF OHIO
regular CMHA work day. The employees were told to report to the off-site
CMHA warehouse for work assignments. The arrests were effected by CMHA
police by prearrangement with CMHA administrators at the CMHA warehouse.
The arrested employees were handcuffed, searched, and physically removed by
armed CMHA police in front of their fellow employees to a waiting police van
with cameras recording the scene. Fourth, Sampson presented evidence that his
arrest by CMHA police was publicized by CMHA at the mandatory meeting and
through a subsequent press release and press conference. The timing of the arrest
was intended to send a message of deterrence to other employees of CMHA.
Fifth, Sampson’s evidence shows that he was terminated from his employment by
CMHA, that he grieved the termination through his CMHA and union arbitration
agreement, and that he was reinstated by CMHA.
{¶ 22} All in all, the facts, supported by the evidence, could lead
reasonable minds to conclude that Sampson’s civil action arose from the
employment relationship and, therefore, is excepted from immunity under R.C.
2744.09(B).
III. Conclusion
{¶ 23} In view of the foregoing analysis, we conclude that the appellate
court properly determined that reasonable minds could conclude that the claims in
Sampson’s civil action, if proven, are matters that arise out of the employment
relationship between Sampson and CMHA and that pursuant to R.C. 2744.09(B),
CMHA is not entitled to the immunity provided by R.C. Chapter 2744.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL, and
MCGEE BROWN, JJ., concur.
LANZINGER, J., concurs in judgment only.
__________________
10
January Term, 2012
LANZINGER, J., concurring in judgment only.
{¶ 24} I concur in the judgment.
{¶ 25} In arguing that a political-subdivision employer is immune from
liability for a workplace intentional tort, appellants rely on decisions by this court
in workers’ compensation cases holding that an employer’s intentional tort against
an employee does not arise out of the employment relationship. Thus, appellants
argue, political subdivisions remain immune from liability for workplace
intentional torts because such torts do not “arise[] out of the employment
relationship” as required by R.C. 2744.09(B).
{¶ 26} Although certain aspects of appellants’ position are persuasive, I
believe that we must read the statute as written and, if a legislative response is
necessary, wait for it to occur. A political subdivision does not have the
protection of R.C. Chapter 2744 immunity if its employee asserts a civil action
“relative to any matter that arises out of the employment relationship between the
employee and the political subdivision.” R.C. 2744.09(B). As it is now defined,
an intentional tort arises out of the employment relationship.
{¶ 27} R.C. 2745.01 defines “intentional tort” as follows:
(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.
11
SUPREME COURT OF OHIO
(Emphasis added.)
{¶ 28} The General Assembly has rejected the artificial theory set forth in
Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d
572 (1982), and its progeny that intentional torts arise outside the employment
relationship and cannot be received in the course of employment. I believe that in
this case we are acknowledging that an intentional tort, as it has been redefined by
statute, may indeed arise in the course of employment. The legal fiction that such
a tort arises outside of the employment relationship should be put to rest, and
language that was invoked initially to broaden workers’ recovery should not now
be used to immunize political subdivisions.
{¶ 29} I agree that there are material issues over whether the facts in this
case set forth a civil action against CMHA “relative to any matter that arises out
of the employment relationship” between Sampson and CMHA. I therefore join
in the judgment. This case must therefore continue to trial, subject to proof of an
intentional tort as redefined by R.C. 2745.01—that is, that the employer acted
with the intent to injure or with belief that the injury was substantially certain to
occur, meaning that the employer acted with deliberate intent to cause the injury.
See R.C. 2745.01(A) and (B).
{¶ 30} Because R.C. 2744.09(B) removes the protection of immunity for a
political-subdivision employer for injuries to its employees that arise out of the
employment relationship, a political subdivision is at risk for liability in
intentional-tort suits that satisfy the terms of R.C. 2745.01. If the General
Assembly wishes to expand immunity to protect the political-subdivision
employer and leave only the individual tortfeasor liable, as appellants argue is the
legislative intent, then the General Assembly must amend the statute to do so.
__________________
12
January Term, 2012
Nancy C. Schuster, for appellee.
Roetzel & Andress, L.P.A., Stephen W. Funk, Aretta K. Bernard, and
Karen D. Adinolfi, for appellants.
Christina M. Royer, Ltd., and Christina M. Royer; Gittes Law Group,
Frederick M. Gittes, and Jeffrey P. Vardaro; Paul L. Cox; and Hunter, Carnahan,
Shoub & Byard and Russell E. Carnahan, urging affirmance for amici curiae
Fraternal Order of Police of Ohio, Inc., Fraternal Order of Police, Capital City
Lodge No. 9, Akron Firefighters IAFF Local 330, and Ohio Employment Lawyers
Association.
Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K.
Schaltenbrand, and Stephen J. Smith; and John Gotherman, urging reversal for
amicus curiae Ohio Municipal League.
______________________
13