I concur in the judgment and opinion sustaining appellant's assignment of error and reversing the entry of summary judgment in favor of the employer in this pre-August 22, 19861 employer intentional tort action, but would add the following.
In order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against an 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 *Page 538 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; Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190,532 N.E.2d 753, syllabus.
In the case at bar, the trial court determined in its October 13, 1989 decision the following:
"In the subject case: (1) the employer had Knowledge of a dangerous condition or instrumentality within its business operation; (2) the employer had Knowledge that the employee was subject to the dangerous condition or instrumentality and that harm could be caused to the employee thereby; and (3) that with such Knowledge and under such circumstances, the employer required the employee to perform the dangerous task."
However, the court below further held, as a matter of law, that appellee's knowledge of harm was insufficient as a matter of law to constitute a substantial certainty rather than just a high risk.
The summary judgment evidence before the lower court included an affidavit of employee, Diana Dille, wherein she stated that on June 17, 1985, she received a call from another employee of appellee that he needed three fifty-five-gallon drums with their tops cut off to use at an oil spill; that appellee's head mechanic, Craig Lovett, ordered appellant's decedent to get the drums and cut the tops from them; that this was a "hurry up job"; and that the "only way this could be done hurriedly * * * would have been with a cutting torch and Doug Clark was employed as a welder." Lovett stated in an affidavit that on June 17, 1985, he instructed appellant's decedent to get the barrels, that he knew the barrels originally contained antifreeze, and that he further knew the barrels had not been commercially cleaned. Moreover, the warning label on the barrels indicated that the containers should not be cut, punctured, or welded and that they should not be reused for any purpose until commercially cleaned.
As this writer noted in a concurring opinion to this court's latest pronouncement on these cases, Hamilton v. Mitchellace (Feb. 5, 1990), Scioto App. No. 1783, unreported, 1990 WL 9941:2
"[T]he applicable test to establish `intent' for the purpose of proving the existence of an intentional tort committed by an employer against his/her employee is that set forth in VanFossen, supra. *Page 539
"Although the Van Fossen intent test was an attempt to resolve some of the confusion engendered by Jones [v. VIPDevelopment Co. (1984), 15 Ohio St.3d 90, 15 OBR 246,472 N.E.2d 1046], which had compelled courts, counsel, and legal authorities to `apply their own often contradictory interpretations of this standard upon a wide variety of fact patterns,' Van Fossen, supra [36 Ohio St.3d] at p. 109 [522 N.E.2d at p. 498], it is equally apparent that application of the Van Fossen intent test has yet to have the desired result of diminished confusion and difficulty in its application. This difficulty in application, while existing after trials on the merits, seems to be even more apparent in resolving Civ.R. 12(B)(6) motions to dismiss for failure to state a claim,Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190 [532 N.E.2d 753], syllabus, motions for summary judgment, Van Fossen,supra, motions for directed verdict, and motions for judgment notwithstanding the verdict. Sanek [v. Duracote Corp. (1989),43 Ohio St.3d 169, 539 N.E.2d 1114] supra."
While our task in these cases is difficult, I would note that in Hamilton, supra, a majority of this court held that the employer's knowledge of the potential danger presented by a machine's unguarded nip point and the employer's possession of requisite skill, technology, and equipment to design and install an effective guard created a genuine issue of material fact precluding summary judgment in the employer's favor on an intentional tort claim. Furthermore, in Courtad v. WhirlpoolCorp. (1989), 48 Ohio App.3d 200, 549 N.E.2d 566,3 the Hancock County Court of Appeals reversed the entry of summary judgment in favor of the employer therein in an employee's intentional tort action against his employer, where there was evidence of certain incidents tending to show that the press on which the employee was working, and which injured him, was known to the employer and its agent to have malfunctioned, thus creating genuine issues of material fact. Analogously, I am persuaded that the summary judgment evidence in the case at bar, when construed most strongly in appellant's favor, would preclude summary judgment in appellee's favor. For the foregoing reasons, I concur in the judgment and opinion reversing the judgment of the court below and remanding the cause for further proceedings.
1 On August 22, 1986, the General Assembly enacted Am.Sub.S.B. No. 307, which amended the Workers' Compensation Act to include a strict definition of "[s]ubstantially certain" so that such term would mean that an employer acts with "deliberate intent" to cause an employee to suffer injury, disease, condition, or death. R.C. 4121.80(G)(1). If this standard were applicable in the instant case, summary judgment in favor of appellee would have been properly granted. However, since the cause of action in the case at bar arose prior to August 22, 1986, the amendment to R.C. 4121.80(G)(1) may not be retroactively applied to bar appellant's action. Van Fossen,supra.
2 The Ohio Supreme Court, on June 13, 1990, overruled a motion of Mitchellace to certify the record in that case. See52 Ohio St.3d 704, 556 N.E.2d 529.
3 The Ohio Supreme Court overruled a motion to certify the case in 45 Ohio St.3d 710, 545 N.E.2d 905.