[Cite as Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027.]
KAMINSKI, APPELLEE, v. METAL & WIRE PRODUCTS COMPANY,
APPELLANT, ET AL.
[Cite as Kaminski v. Metal & Wire Prods. Co.,
125 Ohio St.3d 250, 2010-Ohio-1027.]
Torts — Employer intentional torts — R.C. 2745.01 — R.C. 2745.01 does not
violate Section 34 or 35, Article II, Ohio Constitution.
(No. 2008-0857 — Submitted February 18, 2009 — Decided March 23, 2010.)
APPEAL from the Court of Appeals for Columbiana County,
No. 07-CO-15, 175 Ohio App.3d 227, 2008-Ohio-1521.
__________________
SYLLABUS OF THE COURT
R.C. 2745.01 does not violate Section 34 or 35, Article II of the Ohio
Constitution. (Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707
N.E.2d 1107, limited.)
__________________
CUPP, J.
{¶ 1} This appeal and a companion case, Stetter v. R.J. Corman
Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, ___ N.E.2d ___,
challenge the constitutionality of R.C. 2745.01, an employer intentional-tort
statute enacted by Am.H.B. No. 498, effective April 7, 2005. 150 Ohio Laws,
Part IV, 5533. For the reasons that follow, we hold that R.C. 2745.01 violates
neither the plain language nor the plain meaning of Sections 34 or 35, Article II of
the Ohio Constitution. We find the construction of Sections 34 and 35 set forth in
Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707 N.E.2d 1107, to be
inconsistent with other decisions of this court, including decisions subsequent to
Johnson. Moreover, the provisions of the statute we review herein are
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significantly different from those of the statute reviewed in Johnson. Therefore,
while we do not specifically overrule the decision in that case, we limit its reach
to apply only to the statutory provisions that were then at issue. Because the
judgment of the court of appeals in the case sub judice was based on Johnson’s
flawed interpretations of Sections 34 and 35, we must reverse.
{¶ 2} In Stetter, 125 Ohio St.3d 280, 2010-Ohio-1029, ___ N.E.2d ____,
also decided this day, we uphold the constitutionality of R.C. 2745.01 in the face
of challenges on other grounds. The net result of these two decisions is to
confirm the constitutional validity of R.C. 2745.01. We therefore apply the
statute to this case and consider the record in light of the statutory standards for an
employer intentional tort. We agree with the trial court that summary judgment in
favor of the employer is warranted as a matter of law pursuant to R.C. 2745.01.
Accordingly, we reinstate the trial court’s grant of summary judgment.
I. Facts and Procedural History
{¶ 3} On June 30, 2005, plaintiff-appellee, Rose Kaminski, was working
as a press operator at the Salem, Ohio metal fabrication manufacturing facility of
defendant-appellant, Metal & Wire Products Company (“Metal & Wire”). The
automatic press that Kaminski operated used a coil of rolled steel fed into the
press to produce stamped, flat pieces. In operating the press, Kaminski’s job was
to ensure that the coil feed ran smoothly, shut the press down if it jammed, and
verify that the stamped pieces met required specifications. When the coil of steel
was used up, she would summon a supervisor, who would load a new coil into
place with a forklift.
{¶ 4} When Kaminski’s press ran out of steel on June 30, she searched
for her shift’s supervisor to load another coil, but she was unable to find him.
Kaminski enlisted a co-worker who had loaded coils in the past to load the new
coil. The co-worker used the right fork of a forklift to lift a coil, which was about
five feet tall and weighed about 800 pounds.
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{¶ 5} To properly load the coil onto Kaminski’s press, the coil had to be
switched from the right fork to the left fork. To accomplish the switch, the co-
worker had to lower the coil to the floor, back the forklift away from it, and then
pull forward again with the left fork positioned to pick up the coil.
{¶ 6} When the coil is off the fork, it can become unsteady. The co-
worker was at first reluctant to have Kaminski, a small woman who was about the
same height as the coil, steady the coil in an upright position while he backed
away from it and repositioned. However, the two eventually agreed that
Kaminski would hold the coil because the supervisor was not there and because
the co-worker believed that Kaminski wanted to do it.
{¶ 7} With Kaminski steadying the coil, the co-worker backed the
forklift away and then pulled forward. Rather than going cleanly into the coil’s
opening, the fork bumped the coil. Kaminski was unable to control the coil. It
wobbled and then fell onto Kaminski’s legs and feet, injuring her.
{¶ 8} Kaminski applied for and received workers’ compensation benefits
for her injuries. She was unable to return to work at Metal & Wire as a press
operator due to the injuries. After receiving paychecks until March 2006, she was
eventually discharged from employment because no other position was available.
There is nothing in the record to indicate that Kaminski’s workers’ compensation
benefits were ever terminated.
{¶ 9} About two months after the incident, on August 29, 2005,
Kaminski filed a lawsuit in which she alleged that Metal & Wire had committed
an employer intentional tort under R.C. 2745.01. Additionally, Kaminski
specifically asserted that R.C. 2745.01 “in its entirety is unconstitutional” under
this court’s precedent, and she alleged that Metal & Wire had committed a
common-law employer intentional tort. Metal & Wire answered and asserted a
counterclaim for a declaratory judgment that R.C. 2745.01 is constitutional.
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{¶ 10} Metal & Wire moved for summary judgment on its counterclaim.
The trial court granted the motion, declaring the statute constitutional and holding
that it therefore applied to Kaminski’s claim. Metal & Wire then moved for
summary judgment on Kaminski’s complaint. The trial court granted that motion,
determining that Kaminski had failed to raise a genuine issue of material fact that
Metal & Wire’s conduct fell within the statutory criteria necessary to commit an
employer intentional tort.
{¶ 11} On appeal, the Seventh District Court of Appeals agreed with
Kaminski’s first assignment of error and held that R.C. 2745.01 is
unconstitutional in its entirety. It based its decision upon decisions of this court
interpreting prior employer intentional-tort statutes. 175 Ohio App.3d 227, 2008-
Ohio-1521, 886 N.E.2d 262, ¶ 34. The court of appeals declined to consider
Kaminski’s further arguments that the statute is unconstitutional on new grounds
never before addressed, reasoning that “[b]ecause R.C. 2745.01 is
unconstitutional based on Sections 34 and 35, Article II of the Ohio Constitution”
pursuant to those decisions, “further analysis here is unnecessary.” Id. at ¶ 38.
{¶ 12} The trial court had considered Kaminski’s claims only under the
employer intentional-tort statute. However, the court of appeals proceeded to
consider at length whether her claims met the criteria for a common-law employer
intentional tort. It held that Kaminski had presented sufficient evidence under the
common-law test to survive summary judgment, and it remanded the cause to the
trial court for further proceedings. Id. at ¶ 46-85.
{¶ 13} We accepted Metal & Wire’s discretionary appeal for review of
three propositions of law.1 119 Ohio St.3d 1407, 2008-Ohio-3880, 891 N.E.2d
768. The first proposition urges us to overrule the precedent relied upon by the
court of appeals in holding R.C. 2745.01 unconstitutional. The second
1. Some of the issues of this case and of Stetter overlap. In resolving the issues that overlap, we
have considered all of the briefs that have been filed in both cases.
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proposition asserts that R.C. 2745.01 does not violate Sections 34 and 35, Article
II of the Ohio Constitution. The third proposition asserts that the court of appeals
should have remanded the cause to the trial court upon its holding that the statute
is unconstitutional, rather than itself considering whether the facts constituted a
common-law employer intentional tort.
II. History and Development of Employer Intentional-Tort Law in Ohio
{¶ 14} Any analysis of the development of Ohio’s case law regarding
employer intentional torts necessarily centers on Section 35, Article II of the Ohio
Constitution. That section provides:
{¶ 15} “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 state fund to
be created by compulsory contribution thereto by employers, and administered by
the state, determining the terms and conditions upon which payment shall be
made therefrom. 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.”
{¶ 16} Ohio employees injured in the workplace before Section 35,
Article II was adopted were forced to bring a common-law action against their
employer and to prove that the employer was at fault. The employer had a
number of powerful common-law defenses that left many deserving employees
uncompensated. In 1911, in response to calls for reform, the General Assembly,
acting without the benefit of a specific constitutional provision, enacted a statute
governing compensation for industrial injuries. 102 Ohio Laws 524 et seq. The
following year, the initial version of Section 35, Article II of the Ohio
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Constitution was adopted. See Van Fossen v. Babcock & Wilcox Co. (1988), 36
Ohio St.3d 100, 109-110, 522 N.E.2d 489.
{¶ 17} In its initial form, Section 35 empowered the General Assembly to
provide for the compensation of workplace injuries or occupational diseases and
authorized that body to enact legislation requiring compulsory employer
contributions into a statewide fund. Section 35 and its derivative legislation
“were public policy trade-offs” by which the employee achieved “a certain and
speedy recovery in exchange for granting a more limited liability to the
employer.” Id. at 110, 522 N.E.2d 489. As originally enacted, Section 35 did not
speak to the question of whether an employee who collected from the state fund
could also sue the employer in tort for the same injury.
{¶ 18} The 1911 legislation contained a “wilful act” exception that
allowed an employee to bring a common-law action against his employer in
certain situations. The term “wilful act” however, was not originally statutorily
defined, leading to “considerable legal activity against employers.” Id., 36 Ohio
St.3d at 110, 522 N.E.2d 489. In 1914, the General Assembly enacted G.C. 1465-
76 to define “wilful act” as an act done “knowingly and purposely with the direct
object of injuring another.” 104 Ohio Laws 194. This court later held that under
G.C. 1465-76, “ ‘willful act’ * * * imports an act of will and design and of
conscious intention to inflict injury upon some person. Gross negligence or
wantonness can no longer be a willful act under this section * * *.” Gildersleeve
v. Newton Steel Co. (1924), 109 Ohio St. 341, 142 N.E. 678, paragraph one of the
syllabus.
{¶ 19} Effective January 1, 1924, Section 35, Article II was amended to
make the workers’ compensation laws the exclusive remedy. The amendment
added the second sentence to Section 35, which continues in force today and
provides that “[s]uch compensation shall be in lieu of all other rights to
compensation” and that employers who comply with workers’ compensation laws
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“shall not be liable to respond in damages at common law or by statute.” On its
face, this provision was widely believed to grant immunity to complying
employers “from any common-law actions for injuries suffered by employees in
the workplace.” (Emphasis sic.) Van Fossen, 36 Ohio St.3d at 111, 522 N.E.2d
489.
{¶ 20} Fifteen years later, this court decided Triff v. Natl. Bronze &
Aluminum Foundry Co. (1939), 135 Ohio St. 191, 14 O.O. 48, 20 N.E.2d 232,
which held at paragraph two of the syllabus that an employee could file suit,
despite Section 35, for an injury that resulted from a noncompensable
occupational disease. The General Assembly “immediately amended the
workers’ compensation laws to restore the exclusivity of remedy.” Van Fossen,
36 Ohio St.3d at 111, 522 N.E.2d 489. To that end, the General Assembly
modified G.C. 1465-70, see 118 Ohio Laws 422, 426-427, to provide that
employers who comply with workers’ compensation statutory requirements “shall
not be liable to respond to damages at common law or by statute, for any injury,
disease, or bodily condition, whether such * * * is compensable under this act or
not.”2 G.C. 1465-70 was later recodified as R.C. 4123.74. Id.
2. {¶ a} In Van Fossen, 36 Ohio St.3d at 111, 522 N.E.2d 489, fn. 15, this court quoted the
General Assembly’s concluding “declaration” on this amendment to G.C. 1465-70:
{¶ b} “ ‘Emergency.
{¶ c} “ ‘Section 3. This act is hereby declared to be an emergency measure necessary for the
immediate preservation of the public peace, health and safety. The reason for such necessity lies
in the fact that the law of this state relating to the rights and remedies of employers and employes
has recently been so construed by the supreme court as to disturb relations between employers and
employes and to create a basis for litigation contrary to the Ohio workmen’s compensation plan
and it is necessary that the rights and remedies of all employers and employes shall be brought
within the plan for workmen’s compensation in order to allay doubts as to rights and remedies and
preserve industrial peace and progress in this state. Therefore this act shall go into immediate
effect.’ (118 Ohio Laws at 427.)”
{¶ d} “Employe” was at one time a commonly accepted spelling of “employee,” but is no
longer widely used. See Garner, A Dictionary of Modern Legal Usage (2d Ed.1995) 312
(although “employee” is now the standard widespread form, “[e]mploye was once common in
English”); Black’s Law Dictionary (9th Ed.2009) 602 (indicating that “employe” is an alternate
spelling of “employee”).
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A. Modern Case Law Establishing the Elements
of a Common-Law Employer Intentional Tort
{¶ 21} Despite the emergence and development of the concept that
recovery within the workers’ compensation system was to be the exclusive
remedy for employee injury in the workplace, this court in Blankenship v.
Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433
N.E.2d 572, devised an exception. Blankenship’s syllabus held that “[a]n
employee is not precluded by Section 35, Article II of the Ohio Constitution, or
by R.C. 4123.74[3] * * * from enforcing his common law remedies against his
employer for an intentional tort.”
{¶ 22} In Blankenship, the trial court granted the defendants’ motion to
dismiss the plaintiffs’ suit, which alleged that the employer, a manufacturer of
chemicals, had committed an intentional tort by exposing the plaintiffs to
dangerous chemicals. The court of appeals affirmed the dismissal by reasoning
that “the purpose of Section 35, Article II of the Ohio Constitution was to abolish
civil actions by employees against complying employers for work-related
injuries.” Thus, courts lack jurisdiction over such claims. “To hold otherwise
3. {¶ a} R.C. 4123.74 was amended in 1959 to provide that “[e]mployers who comply with
section 4123.35 of the Revised Code [regarding payments into the state insurance fund] shall not
be liable to respond in damages at common law or by statute for any injury, or occupational
disease, or bodily condition, received or contracted by any employee in the course of or arising
out of his employment, or for any death resulting from such injury, occupational disease, or bodily
condition * * * whether or not * * * compensable under sections 4123.01 to 4123.94, inclusive, of
the Revised Code.” (Emphasis added.) 128 Ohio Laws 1334.
{¶ b} The phrase emphasized above, an important underlying basis for the decision in
Blankenship, was inserted into R.C. 4123.74 in apparent response to decisions such as Bevis v.
Armco Steel Corp. (1951), 156 Ohio St. 295, 46 O.O. 172, 102 N.E.2d 444, which had held that
G.C. 1465-70, 118 Ohio Laws 422, 426, foreclosed a common-law action against an employer
even when an injury fell totally outside the purview of the Workers’ Compensation Act. See
Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 630, 576 N.E.2d 722 (remarking that the
addition of the new language “effectively reinstated common-law redress where an injury was
sustained neither in the course of nor arising out of the employment”).
{¶ c} Current R.C. 4123.74 is “substantially similar” to the statutory version in effect when
Blankenship was decided. Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-
937, 885 N.E.2d 204, ¶ 15, fn. 3.
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would clearly frustrate the enabling language of Art. II, Section 35 * * * and the
legislative scheme embodied in R.C. 4123.74 * * *.” Blankenship v. Cincinnati
Milacron Chems., Inc. (Jan. 14, 1981), Hamilton App. No. C-790768, 1981 WL
9561, * 5.
{¶ 23} In reversing the dismissal, this court stated that “where an
employee asserts in his complaint a claim for damages based on an intentional
tort, ‘* * * the substance of the claim is not an “injury * * * received or contracted
by any employee in the course of or arising out of his employment” within the
meaning of R.C. 4123.74.’ ” Blankenship, 69 Ohio St.2d at 613, 23 O.O.3d 504,
433 N.E.2d 572, quoting Delamotte v. Midland Ross Corp. (1978), 64 Ohio
App.2d 159, 161, 18 O.O.3d 117, 411 N.E.2d 814. This court further stated,
“Since an employer’s intentional conduct does not arise out of employment, R.C.
4123.74 does not bestow upon employers immunity from civil liability for their
intentional torts and an employee may resort to a civil suit for damages.” 69 Ohio
St.2d at 613, 23 O.O.3d 504, 433 N.E.2d 572. Thus, the Blankenship court
declared that workers’ compensation is not always the exclusive remedy for
certain intentional torts. It reversed the trial court’s dismissal of the complaint
and remanded the matter to the trial court for further proceedings without
considering the merits of the plaintiffs’ intentional-tort claims. Id. at 615-616, 23
O.O.3d 504, 433 N.E.2d 572.4
4. Two justices who did not join the majority opinion and who wrote separately in Blankenship in
essence did not disagree with the general validity of the court’s syllabus holding. See id. at 620-
621, 23 O.O.3d 504, 433 N.E.2d 572 (Locher, J., concurring in part and dissenting in part)
(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”); id. at 620-621, 23 O.O.3d 504, 433 N.E.2d 572 (Holmes, J., dissenting)
(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).
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{¶ 24} Notably, this court in Blankenship did not consider Section 35,
Article II, beyond observing that it does not “expressly extend the grant of
immunity to actions alleging intentional tortious conduct by employers against
their employees.” Id. at 612, 23 O.O.3d 504, 433 N.E.2d 572. See also id. at the
syllabus.
{¶ 25} In Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 95, 15 OBR
246, 472 N.E.2d 1046, this court followed up on Blankenship by rejecting the
proposition that an employer’s “specific intent to injure is necessary to a finding
of intentional misconduct.” Relying on Prosser & Keeton, Law of Torts (5th
Ed.1984) 35-36, Section 8, and 1 Restatement of the Law 2d, Torts (1965) 15,
Section 8A, the Jones court formulated a broadened definition of “intent.” That
definition focused not just on the specific consequences that an actor desires but
also on those consequences that an actor believes are substantially certain to result
from the actor’s conduct. The court held at paragraph one of the syllabus: “An
intentional tort is an act committed with the intent to injure another, or committed
with the belief that such injury is substantially certain to occur.” The court then
applied this holding to the facts of three different cases accepted for review and
resolved all three in favor of employees pursuing recovery for alleged employer
intentional torts. Id. at 95-98, 15 OBR 246, 472 N.E.2d 1046.
{¶ 26} The Jones court also made two more noteworthy holdings. The
court held at paragraph two of the syllabus that “[t]he receipt of workers’
compensation benefits does not preclude an employee or his representative from
pursuing a common-law action for damages against his employer for an
intentional tort.” The court held at paragraph three of the syllabus that “[a]n
employer who has been held liable for an intentional tort is not entitled to a setoff
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of the award in the amount of workers’ compensation benefits received by the
employee or his representative.”5
{¶ 27} In the wake of Blankenship and Jones, the General Assembly
enacted former R.C. 4121.80 in Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I,
733-737, effective August 22, 1986. Former R.C. 4121.80(G)(1) defined
“substantially certain” as requiring that an employer act “with deliberate intent to
cause an employee to suffer injury, disease, condition, or death.” 141 Ohio Laws,
id., at 736.
{¶ 28} Having held that former R.C. 4121.80 did not apply to the case
before it,6 this court in Van Fossen endeavored to clarify the standards established
in Jones for a common-law intentional tort. The court explained that trial courts
had misconstrued the phrase “substantially certain to occur,” essentially with the
5. {¶ a} Justice William B. Brown, the author of the majority opinion in Blankenship, was one of
the dissenters in Jones. Justice Brown specifically disagreed with the majority’s conclusion that
the receipt of workers’ compensation benefits does not preclude an employee from also pursuing a
common-law employer intentional tort action: “One act of an employer cannot logically be within
the scope of employment while at the same time not within the scope of employment. * * * One
act of an employer, under Blankenship, simply cannot be both negligent and intentional. Hence,
an injury may either be compensable under the workers’ compensation system or be compensable
at common law for an intentional tort. It cannot logically be compensable under both.” Jones, 15
Ohio St.3d at 102, 15 OBR 246, 472 N.E.2d 1046 (William B. Brown, J., dissenting).
{¶ b} Justice Brown believed that the majority’s decision in Jones undermined the balance of
mutual compromise between the interests of the employer and the employee that is “the very
theory of the workers’ compensation system.” Id. He further believed that the majority’s
decision, even if it might be based on strong public-policy considerations, was irreconcilable with
the plain language of the second sentence of Section 35, Article II of the Ohio Constitution,
because “[t]he Blankenship decision did not and indeed could not erase these dispositive words
from the Ohio Constitution.” Jones at 103, 15 OBR 246, 472 N.E.2d 1046.
6. The employee bringing the intentional-tort suit in Van Fossen was injured in 1983, prior to the
effective date of former R.C. 4121.80. This court determined that the new statutory definition of
“substantially certain” removed a potentially viable cause of action that had arisen under the
standard established in Jones by “imposing a new, more difficult statutory restriction upon
appellees’ ability to bring the instant action.” 36 Ohio St.3d at 109, 522 N.E.2d 489. This court
held that under Section 28, Article II of the Ohio Constitution, former R.C. 4121.80(G) could not
be retroactively applied to bar the cause of action, even though former R.C. 4121.80(H) expressly
stated the General Assembly’s intent that former R.C. 4121.80 was to be applied retrospectively.
Id. at 108-109, 522 N.E.2d 489. See also Kunkler v. Goodyear Tire & Rubber Co. (1988), 36
Ohio St.3d 135, 137-138, 522 N.E.2d 477.
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result of “transforming negligence cases into intentional tort cases.” 36 Ohio
St.3d at 115, 522 N.E.2d 489.
{¶ 29} The standards for a common-law employer intentional tort
established in Van Fossen7 were subsequently modified in Fyffe v. Jeno’s, Inc.
(1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraphs one and two of the
syllabus. Paragraph one of the syllabus of Fyffe states:
{¶ 30} “Within the purview of Section 8(A) of the Restatement of the
Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in order
to establish ‘intent’ for the purpose of proving the existence of an intentional tort
committed by an employer against his employee, the following must be
demonstrated: (1) knowledge by the employer of the existence of a dangerous
process, procedure, instrumentality or condition within its business operation; (2)
knowledge by the employer that if the employee is subjected by his employment
to such dangerous process, procedure, instrumentality or condition, then harm to
7. {¶ a} Paragraph five of the syllabus of Van Fossen held:
{¶ b} “Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and
Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in order to establish ‘intent’ for the purpose
of proving the existence of an intentional tort committed by an employer against his employee, the
following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous
process, procedure, instrumentality or condition within its business operation; (2) knowledge by
the employer that if the employee is subjected by his employment to such dangerous process,
procedure, instrumentality or condition, then harm to the employee will be a substantial certainty
and not just a high risk; and (3) that the employer, under such circumstances, and with such
knowledge, did act to require the employee to continue to perform the dangerous task.”
{¶ c} Paragraph six of the syllabus of Van Fossen held:
{¶ d} “To establish an intentional tort of an employer, proof beyond that required to prove
negligence and beyond that to prove recklessness must be established. Where the employer acts
despite his knowledge of some risk, his conduct may be negligence. Where the risk is great and
the probability increases that particular consequences may follow, then the employer’s conduct
may be characterized as recklessness. As the probability that the consequences will follow further
increases, and the employer knows that injuries to employees are certain or substantially certain to
result from the process, procedure or condition and he still proceeds, he is treated by the law as if
he had in fact desired to produce the result. However, the mere knowledge and appreciation of a
risk – something short of substantial certainty – is not intent. (Blankenship v. Cincinnati Milacron
Chemicals, Inc. [1982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572; and Jones v. VIP
Development Co. [1984], 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, explained.)”
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the employee will be a substantial certainty; and (3) that the employer, under such
circumstances, and with such knowledge, did act to require the employee to
continue to perform the dangerous task. (Van Fossen v. Babcock & Wilcox Co.
[1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus,
modified as set forth above and explained.)”
{¶ 31} Paragraph two of the syllabus of Fyffe states:
{¶ 32} “To establish an intentional tort of an employer, proof beyond that
required to prove negligence and beyond that to prove recklessness must be
established. Where the employer acts despite his knowledge of some risk, his
conduct may be negligence. As the probability increases that particular
consequences may follow, then the employer’s conduct may be characterized as
recklessness. As the probability that the consequences will follow further
increases, and the employer knows that injuries to employees are certain or
substantially certain to result from the process, procedure or condition and he still
proceeds, he is treated by the law as if he had in fact desired to produce the result.
However, the mere knowledge and appreciation of a risk – something short of
substantial certainty – is not intent. (Van Fossen v. Babcock & Wilcox Co.
[1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus,
modified as set forth above and explained.)”
{¶ 33} In light of later decisions of this court striking down as
unconstitutional several more enactments governing employer intentional torts
(including former R.C. 4121.80), Fyffe’s common-law test for employer
intentional torts applied until the General Assembly in House Bill 498, effective
April 7, 2005, enacted the version of R.C. 2745.01 whose constitutionality is at
issue in this case and in Stetter. In the case sub judice, the court of appeals, after
it held current R.C. 2745.01 to be unconstitutional, evaluated Kaminski’s claims
under the Fyffe test.
B. Brady v. Safety-Kleen Corp.
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{¶ 34} This court specifically addressed the constitutionality of former
R.C. 4121.808 in Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576
N.E.2d 722. The syllabus holdings that emerged from Brady were:
{¶ 35} “1. A cause of action brought by an employee alleging intentional
tort by the employer in the workplace is not preempted by Section 35, Article II of
the Ohio Constitution, or by R.C. 4123.74 and 4123.741. While such cause of
action contemplates redress of tortious conduct that occurs during the course of
employment, an intentional tort alleged in this context necessarily occurs outside
the employment relationship. (Blankenship v. Cincinnati Milacron Chemicals,
Inc. [1982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, approved and
followed.)
{¶ 36} “2. R.C. 4121.80 exceeds and conflicts with the legislative
authority granted to the General Assembly pursuant to Sections 34 and 35, Article
II of the Ohio Constitution, and is unconstitutional in toto.” Brady, 61 Ohio St.3d
624, 576 N.E.2d 722, at paragraphs one and two of the syllabus.
8. {¶ a} For the full text of former R.C. 4121.80, a lengthy and multifaceted statute regarding
employer intentional torts, see Brady, 61 Ohio St.3d at 627, 576 N.E.2d 722, fn. 1. Highlights of
the statute included requiring that an employee who recovered for an employer intentional tort was
entitled to collect only the amount recovered in excess of workers’ compensation benefits received
(former R.C. 4121.80(A)); declaring that the immunity established in Section 35, Article II, and in
workers’ compensation statutes “is an essential aspect of Ohio’s workers’ compensation system”
(former R.C. 4121.80(B)); providing that a court was to determine that an intentional tort was
committed, that the Industrial Commission was to determine the amount of damages if the court
made such a determination, and that the amount of damages was capped at one million dollars
(former R.C. 4121.80(D)); and establishing an intentional-tort fund from which employee awards
for intentional torts were to be paid, with the fund also paying for legal fees incurred by an
employer in defending an action, as those fees were fixed by the Industrial Commission (former
R.C. 4121.80(D), (E), and (F)).
{¶ b} In particular, former R.C. 4121.80(G)(1) provided:
{¶ c}“ ‘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.
{¶ d} “Deliberate removal by the employer of an equipment safety guard or deliberate
misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may be
rebutted, of an action committed with the intent to injure another if injury or an occupational
disease or condition occurs as a direct result.
{¶ e} “ ‘Substantially certain’ means that an employer acts with deliberate intent to cause an
employee to suffer injury, disease, condition, or death.” 141 Ohio Laws, Part I, 736.
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{¶ 37} The court in Brady divided into a three-one-three result in which a
justice who joined both paragraphs of the syllabus and concurred in the judgment
did not join the plurality opinion. See id. at 635, 576 N.E.2d 722.
{¶ 38} The plurality opinion did not analyze any specific provision of
former R.C. 4121.80, but directed its inquiry “to the threshold question of whether
R.C. 4121.80, as a whole, transcends the limits of legislative power under the
Ohio Constitution.” Id. at 633, 576 N.E.2d 722.
{¶ 39} The plurality opinion then found, with little analysis and no
citation of any authority, that the statute was “totally repugnant to” Section 34,
Article II9 in 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 employes * * *.’ ” Brady, 61 Ohio St.3d at 633, 576 N.E.2d 722.
{¶ 40} The plurality opinion in Brady then considered former R.C.
4121.80 in light of Section 35, Article II. The opinion stated that “the plain
import” of the first sentence of Section 35 “indicates that the purpose of workers’
compensation is to create a source of compensation for workers injured or killed
in the course of employment. * * * As this court explained in Blankenship [69
Ohio St.2d at 614, 23 O.O.3d 504, 433 N.E.2d 572]: ‘* * * the protection
afforded by the [Workers’ Compensation] Act has always been for negligent acts
and not for intentional conduct.’ * * *
{¶ 41} “However, it is readily apparent that R.C. 4121.80 does not further
the purposes of Section 35, Article II, but instead attempts to circumvent them
9. {¶ a} Section 34, Article II of the Ohio Constitution provides in its entirety:
{¶ b} “Laws may be passed fixing and regulating the hours of labor, establishing a minimum
wage, and providing for the comfort, health, safety and general welfare of all employes; and no
other provision of the constitution shall impair or limit this power.”
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completely.” (Emphasis sic.) Brady, 61 Ohio St.3d at 633-634, 576 N.E.2d
722.10
{¶ 42} Although he joined both paragraphs of the syllabus and the
judgment, Justice Herbert R. Brown did not accept some important parts of the
plurality opinion and wrote separately in Brady to fill in “a gap” in the analysis.
Id. at 639, 576 N.E.2d 722 (Herbert R. Brown, J., concurring). Although Justice
Brown agreed that “R.C. 4121.80 is not authorized by Sections 34 and 35, Article
II of the Ohio Constitution,” id., he did not believe that this conclusion ended the
inquiry:
{¶ 43} “This does not mean, however, that the General Assembly has no
power to modify intentional tort law by legislation. The legislature may do so in
the exercise of its police power. Cf. State, ex rel. Yaple, v. Creamer (1912), 85
Ohio St. 349, 97 N.E. 602 (enactment of Workers’ Compensation Act prior to the
adoption of Section 35, Article II was a valid exercise of the police power).
However, while the General Assembly’s exercise of the powers granted by
Sections 34 and 35 of Article II is not limited by any other provision of the Ohio
Constitution, * * * its exercise of the police power is. Thus, it is necessary to go
beyond the analysis in the majority opinion and test the constitutionality of R.C.
4121.80 with reference to provisions of the Constitution other than Sections 34
and 35 of Article II.” (Emphasis sic.) Brady, 61 Ohio St.3d at 640, 576 N.E.2d
722.
{¶ 44} Justice Brown then stated that former R.C. 4121.80(C) and (D)
violated Section 5, Article I of the Ohio Constitution, which guarantees the right
10. In interpreting Section 35, the Brady plurality adopted the position expressed by a dissenting
justice in a previous case, including the view that injuries resulting from an employer’s intentional
torts “ ‘are totally unrelated to the fact of employment’ ” because “ ‘[w]hen 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.’ ” (Emphasis sic.) Brady, 61 Ohio
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to a trial by jury, by requiring the Industrial Commission, and not a civil jury, to
determine damages in an intentional-tort action. Id. He also reasoned that former
R.C. 4121.80(D)’s cap on damages was unconstitutional. Id. at 641, 576 N.E.2d
722.
{¶ 45} The obvious implications of Justice Brown’s separate opinion in
Brady are that (1) although Sections 34 and 35 do not specifically authorize
legislation in the area of employer intentional torts, those sections also do not
limit the General Assembly’s power to legislate in the area, and (2) intentional-
tort legislation should be upheld if it does not violate any other constitutional
provision. Significantly, the provisions Justice Brown objected to in former R.C.
4121.80(C) and (D) have no counterparts in the version of R.C. 2745.01 we
review here.
{¶ 46} This court next had occasion to consider employer intentional-tort
legislation in Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707 N.E.2d
1107, which construed a version of R.C. 2745.01 enacted after Brady invalidated
former R.C. 4121.80. For clarity of analysis, we defer our discussion of Johnson
until later in this opinion.
III. Analysis
{¶ 47} R.C. 2745.01, effective April 7, 2005, provides in its entirety:
{¶ 48} “(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.
St.3d at 634, 576 N.E.2d 722, quoting Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d
149, 162, 522 N.E.2d 464 (Douglas, J., dissenting).
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{¶ 49} “(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.
{¶ 50} “(C) Deliberate removal by an employer of an equipment safety
guard or deliberate misrepresentation of a toxic or hazardous substance creates a
rebuttable presumption that the removal or misrepresentation was committed with
intent to injure another if an injury or an occupational disease or condition occurs
as a direct result.
{¶ 51} “(D) This section does not apply to claims arising during the
course of employment involving discrimination, civil rights, retaliation,
harassment in violation of Chapter 4112 of the Revised Code, intentional
infliction of emotional distress not compensable under Chapters 4121 and 4123 of
the Revised Code, contract, promissory estoppel, or defamation.”
A. The Statutory Intent
{¶ 52} In construing current R.C. 2745.01, the court of appeals in the
instant case reasoned:
{¶ 53} “R.C. 2745.01(A) provides that in an employer intentional tort
action, the employee must prove ‘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.’ (Emphasis added.) * * *
{¶ 54} “ ‘Intent to injure’ is clear and, therefore, is not defined in the
statute. ‘Substantially certain,’ however, is not as clear. Therefore, the legislature
provided a definition. R.C. 2745.01(B) defines ‘substantially certain’ as acting
‘with deliberate intent to cause an employee to suffer an injury, a disease, a
condition, or death.’
{¶ 55} “When we consider the definition of ‘substantial certainty,’ it
becomes apparent that an employee does not have two ways to prove an
intentional tort claim as R.C. 2745.01(A) suggests. The employee’s two options
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of proof become: (1) the employer acted with intent to injure or (2) the employer
acted with deliberate intent to injure. Thus, under R.C. 2745.01, the only way an
employee can recover is if the employer acted with the intent to cause injury.”
Kaminski, 175 Ohio App.3d 227, 2008-Ohio-1521, 886 N.E.2d 262, ¶ 29-31.
{¶ 56} As an initial matter, we agree with the court of appeals that the
General Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in
2745.01(B), is to permit recovery for employer intentional torts only when an
employer acts with specific intent to cause an injury, subject to subsections (C)
and (D). See Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-
Ohio-937, 885 N.E.2d 204, ¶ 17 (the General Assembly in R.C. 2745.01
“modified the common-law definition of an employer intentional tort” by
rejecting “the notion that acting with a belief that injury is substantially certain to
occur is analogous to wanton misconduct”). See also Stetter, 125 Ohio St.3d 280,
2010-Ohio-1029, ____ N.E.2d ____, at paragraph three of the syllabus, in which
we hold that R.C. 2745.01 does not eliminate the common-law cause of action for
an employer intentional tort.
{¶ 57} This view is supported by the history of employer intentional-tort
litigation in Ohio and by a comparison of the current statute to previous statutory
attempts. See, e.g., Van Fossen, 36 Ohio St.3d at 108-109, 522 N.E.2d 489,
holding that former R.C. 4121.80(G) (which bore a marked resemblance to
current R.C. 2745.01(B)) imposed “a new, more difficult statutory restriction
upon” an employee’s ability to bring an employer intentional-tort action; Johnson,
85 Ohio St.3d at 310, 707 N.E.2d 1107 (Cook, J., dissenting) (“By enacting
[former] R.C. 2745.01, the General Assembly sought to statutorily narrow [the]
common-law definition [of employer intentional tort] to ‘direct intent’ torts
only”). Accordingly, our task in this case and in Stetter is to determine whether
the statute, insofar as it intends to significantly restrict actions for employer
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intentional torts, survives scrutiny under certain provisions of the Ohio
Constitution.
B. Sections 34 and 35, Article II of the Ohio Constitution
{¶ 58} Our inquiry into the constitutionality of R.C. 2745.01 is guided by
familiar and well-established standards. First, all statutes enjoy a strong
presumption of constitutionality. “Before a court may declare unconstitutional an
enactment of the legislative branch, ‘it must appear beyond a reasonable doubt
that the legislation and constitutional provisions are clearly incompatible.’ ”
Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d
420, ¶ 25, quoting State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 142,
57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus.
{¶ 59} Second, “a fundamental principle of the constitutional separation
of powers among the three branches of government is that the legislative branch
of government is ‘the ultimate arbiter of public policy.’ ” Arbino at ¶ 21, quoting
State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Information Network v.
Dupuis, 98 Ohio St.3d 126, 2002-Ohio-7041, 781 N.E.2d 163, ¶ 21. In fulfilling
that role, the legislature is entrusted with the power to continually refine Ohio’s
laws to meet the needs of our citizens. Arbino, id.
{¶ 60} It is undisputed that Section 1, Article II of the Ohio Constitution,
which vests all legislative power of the state in the General Assembly, empowers
that body to enact any law that does not conflict with the Ohio or United States
Constitution. See State ex. rel Jackman v. Cuyahoga Cty. Court of Common
Pleas (1967), 9 Ohio St.2d 159, 162, 38 O.O.2d 404, 224 N.E.2d 906. This
authority includes the power to “alter, revise, modify, or abolish the common
law” as the General Assembly may deem necessary to further the common good.
Arbino at ¶ 131 (Cupp, J., concurring). See Thompson v. Ford (1955), 164 Ohio
St. 74, 79, 57 O.O. 96, 128 N.E.2d 111 (within the scope of its police powers, the
General Assembly “may modify or entirely abolish common-law actions and
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January Term, 2010
defenses”); accord Strock v. Pressnell (1988), 38 Ohio St.3d 207, 214, 527 N.E.2d
1235.
{¶ 61} Third, it is not the role of the courts to establish their own
legislative policies or to second-guess the policy choices made by the General
Assembly. “ ‘[T]he General Assembly is responsible for weighing [policy]
concerns and making policy decisions; we are charged with evaluating the
constitutionality of their choices.’ ” Groch v. Gen. Motors Corp., 117 Ohio St.3d
192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212, quoting Arbino, 116 Ohio St.3d 468,
2007-Ohio-6948, 880 N.E.2d 420, at ¶ 113.
{¶ 62} We first consider Sections 34 and 35, Article II of the Ohio
Constitution by examining the plain meaning of those provisions.
1. Section 34, Article II of the Ohio Constitution
{¶ 63} Section 34, Article II authorizes the General Assembly to enact
laws “providing for the comfort, health, safety and general welfare of all
employes.” Clearly, this section states its grant of authority to the General
Assembly in the affirmative (“Laws may be passed”) and not in the negative or in
the restrictive.
{¶ 64} In Am. Assn. of Univ. Professors, Cent. State Univ. Chapter v.
Cent. State Univ. (1999), 87 Ohio St.3d 55, 717 N.E.2d 286 (“AAUP II”), a case
decided after Johnson, this court considered the constitutionality of R.C. 3345.45,
a statute addressing concerns over the decline in faculty teaching hours at public
universities. The plaintiffs challenged the statute under Section 34, Article II,
contending that Section 34 authorizes only those laws benefiting employees and
arguing that the statute was unconstitutional because it burdened employees rather
than benefiting them. Id. at 60, 717 N.E.2d 286.
{¶ 65} In rejecting these arguments and upholding the statute as “a valid
exercise of legislative authority under Section 34, Article II of the Ohio
Constitution,” id. at paragraph two of the syllabus, we reasoned:
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{¶ 66} “This court has repeatedly interpreted Section 34, Article II as a
broad grant of authority to the General Assembly, not as a limitation on its power
to enact legislation. See, e.g., Rocky River v. State Emp. Relations Bd. (1989), 43
Ohio St.3d 1, 14, 539 N.E.2d 103, 114. [Plaintiffs’] position would require
Section 34 to be read as a limitation, in effect stating: ‘No law shall be passed on
the subject of employee working conditions unless it furthers the comfort, health,
safety and general welfare of all employees.’ Under that approach, however,
Section 34 would prohibit all legislation imposing any burden whatsoever on
employees, regardless of how beneficial to the public that legislation might be.
The invalidity of this position becomes strikingly apparent when viewed in the
context of existing employment-related laws.” (Emphasis sic.) Id. at 61, 717
N.E.2d 286.
{¶ 67} We recently reiterated that Section 34 does not limit the General
Assembly’s authority to legislate. See Lima v. State, 122 Ohio St.3d 155, 2009-
Ohio-2597, 909 N.E.2d 616, ¶ 11, quoting AAUP II, 87 Ohio St.3d at 61, 717
N.E.2d 286.11
{¶ 68} Decisions of this court after Johnson have therefore conclusively
established that Section 34, Article II is not a limitation on the General
Assembly’s authority to legislate.
2. Section 35, Article II of the Ohio Constitution
{¶ 69} Just as Section 34, Article II is phrased as an affirmative grant of
power to the General Assembly (“Laws may be passed”), Section 35, Article II
also is expressed as an affirmative grant of power: “For the purpose of providing
compensation to workmen and their dependents, for death, injuries or
11. This case is distinguishable from Lima v. State and AAUP II in that the legislation at issue in
those cases was specifically enacted pursuant to Section 34, Article II (see Lima v. State at ¶ 14),
but the legislation at issue in this case was not. As noted later in this opinion, at ¶ 102, R.C.
2745.01 was enacted pursuant to Section 1, Article II of the Ohio Constitution. However, the
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January Term, 2010
occupational disease, occasioned in the course of such workmen’s employment,
laws may be passed establishing a state fund * * *.” (Emphasis added.) Section
35 also specifies the effect of the exercise of that power by the General Assembly:
The compensation “shall be in lieu of all other rights to compensation, or
damages, for such death, injuries, or occupational disease,” and employers who
pay the premium or compensation provided by the workers’ compensation laws
“shall not be liable to respond in damages at common law or by statute for such
death, injuries or occupational disease.” (Emphasis added.)
{¶ 70} This court construed Section 35 in Holeton v. Crouse Cartage Co.
(2001), 92 Ohio St.3d 115, 748 N.E.2d 1111. In that case, we considered whether
former R.C. 4123.931, a workers’ compensation subrogation statute enacted in
1995 (Am.Sub.H.B. No. 278, 146 Ohio Laws, Part II, 3596), violated Section 35.
We concluded that it did not.12
{¶ 71} In rejecting the argument that the concept of a workers’
compensation subrogation statute is repugnant to Section 35, this court in Holeton
stated that “Section 35, Article II enables a displacement of the common law only
to the extent necessary to provide the injured worker with an automatic recovery.
Once payment of workers’ compensation benefits is ensured, the employer may,
without any disparagement to the bargained-for rights of the employee, seek to
impose the loss upon the ultimate wrongdoer.” Id. at 120, 748 N.E.2d 1111.
principle of those decisions that Section 34 is not a limitation on the General Assembly’s authority
is fully relevant to our consideration.
12. {¶ a} This court in Holeton, 92 Ohio St.3d at 135, 748 N.E.2d 1111, held that former R.C.
4123.931 did violate Sections 2, 16, and 19, Article I of the Ohio Constitution. We focus solely
on the court’s consideration of Section 35, Article II of the Ohio Constitution as relevant to this
case.
{¶ b} In Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377,
paragraph one of the syllabus, we upheld the facial constitutionality of current R.C. 4123.93 and
4123.931, the subrogation statutes enacted after the former statute was held unconstitutional in
Holeton. Those statutes were enacted in 2002 Sub.S.B. No. 227, 149 Ohio Laws, Part II, 3716,
effective April 9, 2003. See Groch at ¶ 28.
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{¶ 72} We observed that concerns about the statute’s diminishing or
extinguishing the claimant’s tort recovery were not relevant to an analysis under
Section 35 because the statute did not affect the claimant’s workers’
compensation. “After the statute completes its task, * * * the claimant is always
left with the full measure of compensation and benefits to which he or she is
entitled under the Workers’ Compensation Act.” Id. We therefore concluded that
the former statute did not “disrupt any of the rights or obligations of the claimant
and the employer with regard to the payment of statutory workers’ compensation
benefits, and the balance of compromise upon which the viability of the workers’
compensation system depends remains intact” and held that the former statute did
not violate Section 35. Id., 92 Ohio St.3d at 121, 748 N.E.2d 1111.
{¶ 73} Thus, in Holeton, we held that Section 35 does not forbid
legislation that affects employees’ tort recovery without affecting employees’
receipt of workers’ compensation. It follows that Section 35 does not forbid the
legislation before us today, which affects employees’ recovery for intentional
torts, but not receipt of workers’ compensation. Viewed from an employee’s
perspective, Section 35 addresses and authorizes recovery under the Workers’
Compensation Act. Legislation that does not affect that recovery falls outside of
any Section 35 concerns. See Brady, 61 Ohio St.3d at 640, 576 N.E.2d 722
(Herbert R. Brown, J., concurring) (“Intentional torts do not * * * come within the
scope of Section 35, Article II”).
{¶ 74} This court also recognized that Section 35 is a broad grant of
authority to the General Assembly in Bickers v. W. & S. Life Ins. Co., 116 Ohio
St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201: “It is within the prerogative and
authority of the General Assembly to make [choices] when determining policy in
the workers’ compensation arena and in balancing, in that forum, employers’ and
employees’ competing interests. See, e.g., Rambaldo v. Accurate Die Casting
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January Term, 2010
(1992), 65 Ohio St.3d 281, 288, 603 N.E.2d 975. We may not override [those
choices] and [impose our own preferences] on this wholly statutory system. Id.
{¶ 75} “Moreover, it would be inappropriate for the judiciary to presume
the superiority of its policy preference and supplant the policy choice of the
legislature. For it is the legislature, and not the courts, to which the Ohio
Constitution commits the determination of the policy compromises necessary to
balance the obligations and rights of the employer and employee in the workers’
compensation system. Section 35, Article II, Ohio Constitution.” Bickers, 116
Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d 201, ¶ 23-24.
{¶ 76} As illustrated by the above discussion, Section 35, Article II, like
Section 34, Article II, is a grant of authority to the General Assembly, not a
restriction of that body’s authority to legislate.
{¶ 77} This would end our analysis of the constitutionality of the
employer intentional-tort statute before us under Sections 34 and 35, except for
this court's decision in Johnson.
C. Johnson v. BP Chems., Inc.
{¶ 78} The employer intentional-tort legislation construed in Johnson,
former R.C. 2745.01, was enacted in Am.H.B. No. 103, 146 Ohio Laws, Part I,
756, 760, effective November 1, 1995.13
13. {¶ a} In State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, 230, 631 N.E.2d
582, this court invalidated a previous version of R.C. 2745.01, which was enacted by
Am.Sub.H.B. No. 107, 145 Ohio Laws, Part II, 3040-3041, and signed by the governor on July 21,
1993. We held that the inclusion of employer intentional-tort legislation in the bill violated
Section 15(D), Article II of the Ohio Constitution (the one-subject rule). Id. at 230, 631 N.E.2d
582. After that decision, the General Assembly “simply * * * revived and restated” the same
legislation as the version of R.C. 2745.01 that this court reviewed in Johnson. See Johnson, 85
Ohio St.3d at 304, 707 N.E.2d 1107, fn. 5.
{¶ b} For the full text of the version of former R.C. 2745.01 at issue in Johnson, see 85 Ohio
St.3d at 301-302, 707 N.E.2d 1107, fn. 2. This statute was not as comprehensive as former R.C.
4121.80, which was struck down in Brady. However, as will be explained later in this opinion,
former R.C. 2745.01 contained a number of provisions that do not appear in the version of the
statute that we review in the case sub judice.
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{¶ 79} This court in Johnson stated: “In Brady, the court invalidated
former R.C. 4121.80 in its entirety, and, in doing so, we thought that we had made
it abundantly clear that any statute created to provide employers with immunity
from liability for their intentional tortious conduct cannot withstand constitutional
scrutiny. * * * Notwithstanding, the General Assembly has enacted R.C.
2745.01, and, again, seeks to cloak employers with immunity. In this regard, we
can only assume that the General Assembly has either failed to grasp the import
of our holdings in Brady or that the General Assembly has simply elected to
willfully disregard that decision. In any event, we will state again our holdings in
Brady and hopefully put to rest any confusion that seems to exist with the General
Assembly in this area.” Johnson, 85 Ohio St.3d at 304, 707 N.E.2d 1107.
{¶ 80} Having thus restated Brady’s “holdings”14 regarding Sections 34
and 35 and similarly deciding that the statute at issue violated those provisions,
the court in Johnson next declared that “the constitutional impediments at issue in
{¶ c} In Section 3 of Am.Sub.H.B. No. 103, 146 Ohio Laws, Part I, 758, the General Assembly
declared its intent “to supersede the effect of the Ohio Supreme Court decisions in” Blankenship;
Jones; Van Fossen; Pariseau v. Wedge Prods., Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511;
Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235, 527 N.E.2d 871; and Fyffe “to the
extent that” the provisions of former R.C. 2745.01 were “to completely and solely control all
causes of action not governed by Section 35 of Article II, Ohio Constitution, for physical or
psychological conditions, or death, brought by employees or the survivors of deceased employees
against employers.” See Johnson, 85 Ohio St.3d at 303, 707 N.E.2d 1107, fn. 4.
14. {¶ a} By calling certain parts of the opinion in Brady “holdings” when they received the
support of only three justices, the plurality in Johnson elevated those parts of Brady to a status that
they did not actually merit. To be precise, the only explicit holdings in Brady were in the syllabus
paragraphs, because that was the only part of that decision that received the support of a majority
of the justices. See Hedrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44, 22 OBR 63,
488 N.E.2d 840, overruled on other grounds, Martin v. Midwestern Group Ins. Co. (1994), 70
Ohio St.3d 478, 639 N.E.2d 438 (when a plurality opinion yields a syllabus that received the votes
of four justices, “the only law emanating from [that decision] is contained in the syllabus”).
{¶ b} The General Assembly eliminated many of the provisions of former R.C. 4121.80 that
had been identified in Brady as problematic when it enacted the version of former R.C. 2745.01
that was at issue in Johnson. Therefore, the Johnson admonishing of the General Assembly for
even enacting former R.C. 2745.01 can be viewed as inappropriate. It was by no means
“abundantly clear” in the wake of this court’s split opinion in Brady that the General Assembly
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January Term, 2010
Brady, concerning former R.C. 4121.80, also apply with equal force to R.C.
2745.01,” in that both statutes were enacted to provide immunity from suits by
employees based on “intentional tortious conduct of employers in the workplace.”
Id. at 305, 707 N.E.2d 1107.
{¶ 81} The court in Johnson then went on to detail some of the specifics
of former R.C. 2745.01 that it viewed as objectionable. For example, former R.C.
2745.01(A) limited an employer’s liability for an “employment intentional tort,”
as defined by former R.C. 2745.01(D)(1) to “ ‘an act committed by an employer
in which the employer deliberately and intentionally injures, causes an
occupational disease of, or causes the death of an employee.’ ” (Emphasis sic.)
Id. at 306, 707 N.E.2d 1107, quoting former R.C. 2745.01(D)(1).
{¶ 82} In addition, the court in Johnson expressed disapproval of other
provisions of the statute, including former R.C. 2745.01(B)’s requirement that an
intentional tort must be demonstrated by clear and convincing evidence, (C)(1)’s
application of a clear-and-convincing-evidence standard to withstand an
employer’s motion for summary judgment, (C)(2)’s requirement that every court
filing be signed by an attorney or by a party, and (C)(2)’s additional requirement
that the court impose sanctions for noncompliance. Id., 85 Ohio St.3d at 306, 707
N.E.2d 1107. The court stated that “[b]y establishing the foregoing standards in
R.C. 2745.01, the General Assembly has created a cause of action that is simply
illusory,” id., and held former R.C. 2745.01 unconstitutional in its entirety. Id. at
syllabus.
{¶ 83} Three members of this court dissented in Johnson. Justice Cook’s
dissenting opinion, joined by two other justices, noted that there are two types of
employer intentional torts. Citing Harasyn v. Normandy Metals, Inc. (1990), 49
Ohio St.3d 173, 175, 551 N.E.2d 962, this dissent observed that “direct intent”
could not legislate in the area of employer intentional torts, Johnson, 85 Ohio St.3d at 304, 707
N.E.2d 1107, particularly in light of Justice Brown’s concurring opinion in that case.
27
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torts are those in which the actor’s action brings about the exact result desired,
while “inferred intent” torts are those in which the actor believes his action is
“substantially certain” to cause a particular result, even if the actor does not desire
to bring that result about. Id., 85 Ohio St.3d at 309-310, 707 N.E.2d 1107. “By
enacting R.C. 2745.01, the General Assembly sought to statutorily narrow that
common-law definition to ‘direct intent’ torts only.” Id. at 310, 707 N.E.2d 1107
(Cook, J., dissenting).
{¶ 84} Justice Cook wrote that Sections 34 and 35 of Article II are both
solely grants of authority and cannot be read as limiting the General Assembly’s
power to enact legislation in the area of employer intentional torts. Id. at 310-
311, 707 N.E.2d 1107. Furthermore, Justice Cook stated that “Section 35, Article
II cannot be both inapplicable to employer intentional torts and, at the same time,
offended by any legislation regulating such torts. Yet those are exactly the
contradictory conclusions reached by Brady and followed here.” (Emphasis
added.) Id. at 311-312, 707 N.E.2d 1107.
{¶ 85} Justice Lundberg Stratton’s dissenting opinion in Johnson
characterized the majority’s holding as striking down “a constitutionally valid
attempt by the General Assembly to restore balance between employees’ and
employers’ rights in the context of workplace injuries.” Id. at 314, 707 N.E.2d
1107 (Lundberg Stratton, J., dissenting). Justice Lundberg Stratton stated that
only injuries caused by truly intentional acts should be recognized as the basis for
an intentional-tort action, and that all other injuries should be compensable only
through the workers’ compensation system. Id. at 316, 707 N.E.2d 1107.
{¶ 86} Justice Lundberg Stratton also took issue with the majority’s
conclusion, based upon Brady, that former R.C. 2745.01 violated Section 34,
Article II because it removed a right to a remedy: “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
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January Term, 2010
definition.” Id. at 318, 707 N.E.2d 1107. She noted that remedies continued to be
available to all injured workers after the enactment of the former statute. Id. at
318, 707 N.E.2d 1107.
{¶ 87} As to Section 35, Article II, Justice Lundberg Stratton stated, “The
General Assembly had authority to enact R.C. 2745.01 under its general grant of
legislative power [under Section 1, Article II of the Ohio Constitution] 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 [in Section 3 of Am.H.B. No.
103] specifically stated that R.C. 2745.01 was to control actions not governed by
Section 35, Article II of the Ohio Constitution.” (Emphasis sic.) Id. at 319, 707
N.E.2d 1107. Justice Lundberg Stratton reasoned that because the General
Assembly through its police power has the authority to modify or abolish
common-law actions and defenses and to codify the common law, former R.C.
2745.01 was a valid exercise of the police power as “a codification and
modification of employer intentional tort case law.” Id. at 320, 707 N.E.2d 1107.
D. Johnson and Stare Decisis
{¶ 88} Metal & Wire asserts that this court in Johnson misconstrued
Sections 34 and 35 and that the decision is severely flawed. Metal & Wire asserts
that we should hold R.C. 2745.01 constitutional as not in violation of Sections 34
and 35 and overrule Johnson, consistent with the three-part test for overruling
precedent established in Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-
Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus (“A prior decision of
the Supreme Court may be overruled where (1) the decision was wrongly decided
at that time, or changes in circumstances no longer justify continued adherence to
the decision, (2) the decision defies practical workability, and (3) abandoning the
precedent would not create an undue hardship for those who have relied upon it”).
{¶ 89} Metal & Wire does not specifically argue that Brady should be
overruled. This position recognizes that Brady was a plurality decision with
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limited stare decisis value for the issues we review in this case. See Hedrick v.
Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 44, 22 OBR 63, 488 N.E.2d
840, overruled on other grounds by Martin v. Midwestern Group Ins. Co. (1994),
70 Ohio St.3d 478, 639 N.E.2d 438 (when a plurality opinion yields a syllabus
that received the votes of four justices, “the only law emanating from [that
decision] is contained in the syllabus”).15
{¶ 90} Metal & Wire’s principal arguments for overruling Johnson are
that the doctrine of stare decisis should be applied with greater flexibility in cases
of constitutional adjudication, which cannot be corrected by the legislature as can
cases involving statutory interpretation. Metal & Wire further argues that the
pragmatic concerns of the second and third Galatis factors have less relevance in
cases involving constitutional interpretation and should be applied with more
flexibility in such cases.
{¶ 91} We recognize a considerable degree of merit in Metal & Wire’s
arguments concerning the Galatis test’s application in constitutional adjudication,
and we accept that there are serious internal flaws in the analysis of Section 34
and 35 set forth in Johnson, as we discuss below. However, because a different
statute was at issue in Johnson, we constrain the interpretation of Section 34 and
35 to the specific context of that case, and we decline to overrule Johnson.
15. Metal & Wire also asserts that there are fundamental differences between the statute at issue
in Brady and the statute we review in this case, based largely on the fact that the Brady statute
created a questionable hybrid system that required that the Industrial Commission determine
damages in an intentional-tort action even though a trial court determined liability. Based on these
differences, Metal & Wire implies that Brady need not be overruled. It suggests that Brady was
correct in holding that these provisions of former R.C. 4121.80 could not withstand scrutiny under
Section 35 in that (1) the former statute purported to transfer jurisdiction to the Industrial
Commission over intentional-tort awards, (2) intentional-tort awards are outside the scope of
Section 35, and (3) as the Brady plurality stated, “The General Assembly has no power to confer
jurisdiction on the commission except as authorized by” Section 35. See 61 Ohio St.3d at 634,
576 N.E.2d 722. In contrast, current R.C. 2745.01, like the version struck down in Johnson,
contains no such provisions.
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January Term, 2010
1. Johnson’s Interpretations of Section 34 and 35, Article II of the Ohio
Constitution
{¶ 92} Notwithstanding the clear text of Section 34, this court in Johnson
interpreted Section 34 as placing substantive limits on the General Assembly’s
authority to enact employer intentional-tort legislation. However, AAUP II, 87
Ohio St.3d 55, 717 N.E.2d 286, and Lima v. State, 122 Ohio St.3d 155, 2009-
Ohio-2597, 909 N.E.2d 616, contradict Johnson’s view that Section 34 limits the
General Assembly’s authority to enact legislation. Because Lima v. State and
AAUP II are the more recent and controlling authorities regarding Section 34,
they have effectively superseded the interpretation given to that section by
Johnson. Consequently, the decision in Johnson has no stare decisis value on this
issue. Because Section 34 is not a limitation on the General Assembly’s
authority, it necessarily follows that R.C. 2745.01 does not violate it.
{¶ 93} Similarly, notwithstanding the clear text of Section 35, this court in
Johnson in effect held that any legislative attempt to govern employer intentional
torts is per se invalid under that section, asserting that this area of law “ ‘is
beyond the reach of constitutional empowerment.’ ” Id., 85 Ohio St.3d at 308,
707 N.E.2d 1107, quoting Brady, 61 Ohio St.3d at 634, 576 N.E.2d 722.
{¶ 94} Such an interpretation of Section 35 cannot be reconciled with the
plain language of the section or with the historical underpinnings of its enactment.
Moreover, Johnson's interpretation is inconsistent with the later, and more
accurate, view of Section 35 expounded in Holeton, 92 Ohio St.3d 115, 748
N.E.2d 1111, and in Bickers, 116 Ohio St.3d 351, 2007-Ohio-6751, 879 N.E.2d
201. Therefore Johnson’s analysis of Section 35 can have no stare decisis value
in our inquiry. Section 35 is simply irrelevant to the constitutionality of R.C.
2745.01. Because Section 35 is not a limitation on the General Assembly’s
authority to legislate in the area of employer intentional torts, it necessarily
follows that R.C. 2745.01 does not violate Section 35.
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2. Johnson’s Reliance on Other Grounds
{¶ 95} In addition to relying on Johnson’s interpretation of Sections 34
and 35 of Article II to assert that current R.C. 2745.01 is unconstitutional,
Kaminski also raises additional aspects of Johnson touching upon other
provisions of the Ohio Constitution. Kaminski specifically invokes the right-to-a-
remedy and due-process provisions of Section 16, Article I, even though Johnson
did not explicitly and independently rely on those provisions in striking down the
statute reviewed in that case. Notably, the court of appeals in this case did not
address the constitutionality of R.C. 2745.01 under Section 16, Article I.
{¶ 96} The Johnson court’s conclusion that former R.C. 2745.01 was
unconstitutional obviously included additional grounds beyond just Section 34
and 35 concerns. The majority believed that former R.C. 2745.01 was
unconstitutional because the burdens it imposed were simply too onerous. The
statute made recovery for an employer intentional tort too difficult, in the
majority’s assessment, rendering the cause of action too “illusory” to be
constitutionally valid. 85 Ohio St.3d at 306-308, 707 N.E.2d 1107. See also
Stetter, 125 Ohio St.3d 280, 2010-Ohio-1029, ___ N.E.2d ___, at ¶ 43-60, in
which we specifically consider the constitutionality of current R.C. 2745.01 under
the right-to-a-remedy and open-court provisions of Section 16, Article I of the
Ohio Constitution.
{¶ 97} The statute we review here differs considerably from the former
version of R.C. 2745.01 at issue in Johnson. The General Assembly did not
simply reenact the same statute that Johnson held unconstitutional. Because we
review here a statute with provisions differing in key aspects from the statute
struck down in Johnson, we need not overrule Johnson to limit its precedential
value. See Arbino, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, at ¶ 24
(“The statutes before us * * * are sufficiently different from the previous
enactments to avoid the blanket application of stare decisis and to warrant a fresh
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January Term, 2010
review of their individual merits”); Groch, 117 Ohio St.3d 192, 2008-Ohio-546,
883 N.E.2d 377, at ¶ 147. This approach is consistent with Arbino and Groch,
which did not overrule previous decisions in similar situations.
E. Additional Considerations
{¶ 98} Because the statute under consideration in this case constrains
rather than abolishes an employee’s cause of action for an employer intentional
tort, we need not, and therefore do not, consider whether a statute abolishing the
common-law tort would be constitutional. Nor do we need to revisit the holding
in Blankenship that employer intentional torts are outside the scope of
employment in order to evaluate the constitutionality of the instant statute. It is
clear from our foregoing analysis herein that the General Assembly is not
constitutionally proscribed from legislating in this area of law under Sections 34
and 35, Article II.
{¶ 99} R.C. 2745.01 by no means places Ohio outside the national
mainstream relative to employer intentional torts and the exclusivity of the
workers’ compensation remedy. Rather, R.C. 2745.01 appears to harmonize the
law of this state with the law that governs a clear majority of jurisdictions.
{¶ 100} “[T]he common-law liability of the employer cannot, under the
almost unanimous rule, be stretched to include accidental injuries caused by the
gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious
negligence, breach of statute, or other misconduct of the employer short of a
conscious and deliberate intent directed to the purpose of inflicting an injury.”16
16. Professor Larson’s treatise reasons that the best legal theory to support an exception to
workers’ compensation exclusivity for intentional torts is that an intentionally committed act
cannot be “accidental.” 6 Larson’s Workers’ Compensation Law (2008), Section 103.01. It
further reasons that “[e]ven if the alleged conduct goes beyond aggravated negligence, and
includes such elements as knowingly permitting a hazardous work condition to exist, knowingly
ordering employees to perform an extremely dangerous job, wilfully failing to furnish a safe place
to work, wilfully violating a safety statute, failing to protect employees from crime, refusing to
respond to an employee’s medical needs and restrictions, or withholding information about
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(Footnote omitted.) 6 Larson’s Workers’ Compensation Law (2008), Section
103.03. Furthermore, “Ohio is one of only eight states that have judicially
adopted a ‘substantial certainty’ standard for employer intentional torts.”
(Footnote omitted.) Talik, 117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204,
¶ 32, citing 6 Larson’s Workers’ Compensation Law (2007) 103-10, Section
103.04[1].
{¶ 101} Reduced to its most basic level, our decision today is grounded
in the recognition that Sections 34 and 35 actually mean what they say.
Accordingly, for all the reasons set forth above, we hold that R.C. 2745.01 does
not violate Section 34 or 35, Article II of the Ohio Constitution. To the extent
that Johnson misconstrued those sections, we limit its reach to the particular
statute that was at issue in that case. We therefore reverse the judgment of the
court of appeals, which was solely based on Johnson’s erroneous interpretations
of Sections 34 and 35.
{¶ 102} That is not the end of our inquiry, however. R.C. 2745.01 was
enacted pursuant to the broad grant of legislative authority under Section 1,
Article II of the Ohio Constitution. Although the statute does not violate Sections
34 or 35, it does not necessarily follow from that alone that the statute is
constitutional, because it might contravene one or more other provisions of the
Ohio Constitution. Having held that Johnson mandated the conclusion that R.C.
2745.01 violated Sections 34 and 35, the appellate court in this case declined to
consider additional arguments challenging the statute’s constitutionality. In
Stetter, we analyze whether R.C. 2745.01 offends other constitutional provisions,
worksite hazards, the conduct still falls short of actual intention to injure that robs the injury of
accidental character.” (Footnotes omitted.) Id. at Section 103.03.
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January Term, 2010
and we determine that it does not. Accordingly, as did the trial court below in this
case, we hold that R.C. 2745.01 is constitutional.17
F. Application of R.C. 2745.01 to this Case
{¶ 103} Because R.C. 2745.01 is constitutional, the standards contained
in the statute govern employer intentional-tort actions, and the statutory standards
apply rather than the common-law standards of Fyffe. We must consider then
whether the trial court properly granted summary judgment to Metal & Wire
based on R.C. 2745.01. Under Civ.R. 56(C), summary judgment is appropriate
when all relevant materials filed in the action reveal that “there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law.” The filed materials must be construed most strongly in the
nonmoving party’s favor, and “summary judgment shall not be rendered” unless
those materials establish that “reasonable minds can come to but one conclusion
and that conclusion is adverse to the party against whom the motion for summary
judgment is made * * *.” Id.; Horton v. Harwick Chem. Corp. (1995), 73 Ohio
St.3d 679, 686-687, 653 N.E.2d 1196; Sinnott v. Aqua-Chem, Inc., 116 Ohio St.3d
158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29. Our consideration of whether
summary judgment is appropriate is de novo. Comer v. Risko, 106 Ohio St.3d
185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.
{¶ 104} Nothing in this case implicates R.C. 2745.01(C) or (D).
Furthermore, construing all materials in a light most favorable to Kaminski, we
find nothing in the record demonstrating that Kaminski can prove that her
employer committed a tortious act with the intent to injure her or that the
employer acted with deliberate intent to cause her to suffer an injury for purposes
of R.C. 2745.01(A) and (B). The only conclusion that can be reached on this
17. Due to our conclusions in this case and in Stetter that R.C. 2745.01 does not violate Section
34 or 35 of the Ohio Constitution and that the statute is otherwise constitutional, we decline to
address Metal & Wire’s third proposition of law, which takes issue with the court of appeals’
application of the common-law Fyffe test to the facts of this case. That proposition is now moot.
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record under R.C. 2745.01 is that there is no genuine issue as to any material fact.
Consequently, there is no need to consider remanding this cause to the court of
appeals for further consideration. Metal & Wire is entitled to summary judgment
as a matter of law, and we reinstate the trial court’s grant of summary judgment in
its favor.
IV. Conclusion
{¶ 105} In conclusion, for the reasons discussed above, we reverse the
judgment of the court of appeals, and we hold R.C. 2745.01 constitutional on the
grounds at issue in this case. We accordingly reinstate the trial court’s grant of
summary judgment in favor of Metal & Wire.
Judgment reversed.
MOYER, C.J., and LUNDBERG STRATTON and O’DONNELL, JJ., concur.
O’CONNOR, J., concurs in judgment only.
LANZINGER, J., concurs in part.
PFEIFER, J., dissents.
__________________
LANZINGER, J., concurring in part.
{¶ 106} Although I agree that R.C. 2745.01 does not violate Section 34
or 35, Article II of the Ohio Constitution, I respectfully concur only in part
because I would overrule Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298,
707 N.E.2d 1107, rather than artificially limiting it.
{¶ 107} This case joins a line of decisions that rather than overruling a
prior case, limit or otherwise distinguish that case,18 thereby avoiding an analysis
18. See Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377
(limiting but not overruling our decision in Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460,
639 N.E.2d 425); Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880
N.E.2d 420 (distinguishing but not overruling our decision in State ex rel. Ohio Academy of Trial
Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 715 N.E.2d 1062); State ex rel. Shelly Materials,
Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59 (limiting
but not overruling our decision in State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-
36
January Term, 2010
under Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797
N.E.2d 1256. For the reasons I previously expressed in Groch v. Gen. Motors
Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, I would yield to a
broader system of analysis that would also allow us greater freedom and enable us
to be straightforward about overruling wrongly decided cases when it is
necessary. Here, the court of appeals concluded, based upon Johnson, that R.C.
2745.01 was unconstitutional and in violation of Sections 34 and 35, Article II of
the Ohio Constitution. The majority opinion takes great pains to show how
Johnson’s analysis of these constitutional sections was seriously flawed. Yet
instead of cleanly and honestly overruling the case, the majority merely limits
Johnson “to the specific context of that case.” Majority opinion at ¶ 91. This is
done in spite of our now contrary position that Section 34 is not a limitation on
the General Assembly’s authority to enact legislation in the area of employer
intentional torts.
{¶ 108} “To serve the need for predictability, consistency, and clarity in
the law, we must be forthright about overruling cases when that is our true intent
and is the practical effect of a decision.” Groch, 117 Ohio St.3d 192, 2008-Ohio-
546, 883 N.E.2d 377 at ¶224 (Lanzinger, J., concurring in part). To do otherwise
leads to confusion, leaving parties to struggle to determine what law is
controlling.
__________________
PFEIFER, J., dissenting.
{¶ 109} The court below relied on Johnson v. BP Chems., Inc. (1999), 85
Ohio St.3d 298, 707 N.E.2d 1107, in determining that R.C. 2745.01 is
unconstitutional. That reliance was appropriate. Johnson made it clear in
6716, 780 N.E.2d 998); and Cleveland Mobile Radio Sales, Inc. v. Verizon Wireless, 113 Ohio
St.3d 394, 2007-Ohio-2203, 865 N.E.2d 1275 (distinguishing but not overruling our decision in
Rosette v. Countrywide Home Loans, Inc., 105 Ohio St.3d 296, 2005-Ohio-1736, 825 N.E.2d 599).
37
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decisive terms that the General Assembly could not constitutionally prevent
employees from recovering civil damages for injuries caused by their employers’
intentional tortious conduct. In Johnson, this court noted that the General
Assembly had already attempted to grant employers such immunity in former
R.C. 4121.80 and that that statute had been struck down by this court in Brady v.
Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722. This court wrote
in Johnson:
{¶ 110} “Notwithstanding, the General Assembly has enacted R.C.
2745.01, and, again, seeks to cloak employers with immunity. In this regard, we
can only assume that the General Assembly has either failed to grasp the import
of our holdings in Brady or that the General Assembly has simply elected to
willfully disregard that decision.” Johnson, 85 Ohio St.3d at 304, 707 N.E.2d
1107.
{¶ 111} Déjà vu.
{¶ 112} The court noted in Johnson that although certain aspects of
former R.C. 4121.80 were different from the version of R.C. 2745.01 at issue in
Johnson, the purposes of both were the same:
{¶ 113} “Clearly, the constitutional impediments at issue in Brady,
concerning former R.C. 4121.80, also apply with equal force to R.C. 2745.01.
Both statutes were enacted to serve identical purposes. Like 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.” Johnson, 85 Ohio St.3d at 305, 707 N.E.2d 1107.
{¶ 114} Déjà vu.
{¶ 115} In Johnson, this court held that a statutory scheme that allows an
employee to recover civil damages only if his or her employer acts deliberately
and intentionally creates only an illusory cause of action:
38
January Term, 2010
{¶ 116} “By establishing the foregoing standards in R.C. 2745.01, the
General Assembly has created a cause of action that is simply illusory. Under the
definitional requirements contained in the statute, an employer's conduct, in order
to create civil liability, must be both deliberate and intentional. Therefore, in
order to prove an intentional tort in accordance with R.C. 2745.01(D)(1), the
employee, or his or her survivors, must prove, at a minimum, that the actions of
the employer amount to criminal assault.” (Emphasis sic.) Johnson, 85 Ohio St.3d
at 306, 707 N.E.2d 1107.
{¶ 117} Déjà vu.
{¶ 118} In all pertinent regards, the statute this court addresses today is
the same as the one it addressed in Johnson. Only the result in this case is
different. As the majority decision points out in its discussion of the history of
workplace intentional torts in Ohio, ever since this court recognized an
employee’s right to civil damages for injuries suffered due to his or her
employer’s intentional acts, the General Assembly has sought to squelch that
right. This court’s recognition of the availability of recovery for workplace
intentional torts in Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69
Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and its holding that a specific
intent to injure is not necessary to prove intentional misconduct in Jones v. VIP
Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, begat former
R.C. 4121.80, which begat this court’s response in Brady, which begat another
attempt by the General Assembly to foreclose employer liability in former R.C.
2745.01, which begat this court’s strong contrary response in Johnson, which
begat the General Assembly’s third legislative attempt to end liability for
workplace intentional torts with R.C. 2745.01. In the midst of that tug of war, this
court developed in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d
1108, a workable common-law test to determine the requisite intent to prove a
workplace intentional tort, a test rooted in Section 8(A) of the Restatement of Law
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SUPREME COURT OF OHIO
2d, Torts. But today, the cycle ends, as the General Assembly has found a court
that agrees with it: workers have no constitutionally protected right to seek redress
for injuries suffered from their employer’s intentional torts.
{¶ 119} That this court reaches that decision today is, standing alone, no
sin. The common law does, necessarily, evolve and change. The common law,
however, should not be ignored; its repudiation should at least be acknowledged.
Without overturning years of contrary precedent, this court anoints the General
Assembly’s abolition of workplace intentional torts.
{¶ 120} I disagree with the majority decision. I would follow this court’s
precedent in Johnson, Fyffe, Brady, Jones, and Blankenship and affirm the
judgment of the court of appeals. Accordingly, I dissent.
__________________
Jeffries, Kube, Forrest & Monteleone Co., L.P.A., David A. Forrest, Jarret
J. Northup, and Bradford D. Zelasko; and Dennis A. DiMartino, for appellee.
Tucker, Ellis & West, L.L.P., Irene C. Keyse-Walker, and Benjamin C.
Sassé, for appellant.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J.
Jaffy, urging affirmance for amicus curiae Ohio AFL-CIO.
Paul W. Flowers Co., L.P.A., and Paul W. Flowers, urging affirmance for
amicus curiae Ohio Association for Justice.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A.
Bowman, and Russell Gerney, urging affirmance for amicus curiae UFCW Local
911 and AFSCME Local 2415.
Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Elisabeth A. Long, Deputy Solicitor, and Todd A. Nist, Assistant Solicitor, urging
reversal for amicus curiae Attorney General of Ohio.
40
January Term, 2010
Porter, Wright, Morris & Arthur, L.L.P., Carolyn A. Taggart, and J.H.
Huebert, urging reversal for amicus curiae Ohio Association of Civil Trial
Attorneys.
Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey;
Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor; and Bricker &
Eckler, L.L.P., Anne Marie Sferra, and Thomas R. Sant, urging reversal for amici
curiae Ohio Chamber of Commerce, Ohio Self-Insurers Association, Ohio
Chapter of National Federation of Independent Business, and Ohio Manufacturers
Association.
White, Getgey & Meyer Co., L.P.A., David P. Kamp, and Carl J. Stich Jr.,
supporting neither side for amicus curiae Amantea Nonwovens, L.L.C.
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