I respectfully dissent.
The majority has based its opinion in part on evidence from 1982 that the isolation room of the autopsy suite functioned at six air changes per hour. This evidence, however, does not support the conclusion that the same rate of air exchange existed ten years later, in 1992, when Edward Padney assisted in the autopsy of Elba Ramos.
At trial, Padney's expert witness, Dr. Edward Nardell, an associate professor of medicine at the Harvard Medical School, testified based on six changes of air per hour, and the majority has cited, relied upon, and utilized his opinion regarding the likelihood of infection based on the assumption that the ventilation system functioned at that rate on September 25, 1992, when Padney participated in the autopsy of Elba Ramos.
However, the transcript contains evidence that Dr. Nardell had no idea what the actual air changes were in the autopsy isolation room on September 25, 1992 but that, based upon an August 6, 1982, office memorandum from Lawrence S. Toth to Maxine Hampson, he assumed that it was six; that memo, however, predated the Ramos autopsy by ten years.
The transcript of the trial of this matter reveals the following:
Q. (by Mr. Sutton) And in 1970 when it went on line, it was tested at 18.5?
A. (by Dr. Nardell) Yes.
Q. Now, somewhere along the line, we get to 1992, right?
A. Yes.
Q. And you'll admit that you have no idea what the actual air changes were on September 25, 1992? You don't know.
A. True.
*Page 771Q. And are you going to tell us that you think it was 6?
A. Yes.
Q. All right. And the reason that you say it was 6 is based solely upon that 1982 memo, right?
A. Yes.
Q. And that 1982 memo, that's a decade before this, would you agree with that?
A. Yes.
(Tr. 349-350.)
In addition, the transcript reveals that Dr. Nardell admitted that a 1986 hospital memo indicated that the plant engineering department had investigated the ventilation system in the autopsy suite and verified the system to be within designed parameters of 16 air changes per hour.
This, however, is not only a case about factual distinctions but also concerns application of the doctrine of intentional tort.
In Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, the court stated in the first paragraph of its syllabus:
1. 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 (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.)
More significant in this case, in my view, is the second paragraph of that syllabus, which states:
2. 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 *Page 772 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.)
My differences with the majority are based upon its misapplication of the facts and my view of the law. The majority concludes, for example, "A reasonable jury could find [MetroHealth] was substantially certain that Padney would contact this disease. The majority also concludes, It was also aware that the CDC standards required ventilation equal to twelve total air changes per hour, but this isolation room only had six air changes per hour."
Not only does the majority skew the facts to reach its conclusions, but it misapplies Fyffe. As indicated earlier, the reference to six air changes per hour occurred ten years before the Ramos autopsy, and Dr. Nardell testified that he did not know the number of air changes per hour at the time of the autopsy. The majority has erroneously adopted the 1982 data and applied it to the 1992 facts in this case.
Further, Fyffe requires more. Proof beyond negligence or recklessness must be established. There is no evidence in this record to meet the Fyffe standard:
"* * * [T]he employer knows that injuries to employees are certain or substantially certain to result from the * * * procedure * * * and he still proceeds, he is treated by the law as if he had in fact desired to produce the result.
There is evidence to suggest that MetroHealth had an appreciation of the risk of harm in performing this autopsy. However, as stated in Fyffe, paragraph six of Van Fossen v. Babcock Wilcox Co. (1988),36 Ohio St.3d 100, has now been amended to read in part:
* * * [T]he mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent.
In its opinion, the majority suggests that evidence existed from which a jury could find that MetroHealth knew that harm to its employees was substantially certain to occur if subjected to this danger, citing a 25-30% chance of contracting tuberculosis from a one-hour exposure. The facts of this case plainly do not reach the level of substantial certainty on three bases: one, per the analysis offered in Fyffe and Van Fossen, mere knowledge of a risk is not equivalent to intent; two, the uncontroverted evidence in this case establishes that for twenty years, no other MetroHealth employee had ever been infected with tuberculosis; and three, while the majority asserts a 25-30% chance of contracting tuberculosis, the transcript reveals the following colloquy from the cross-examination of Dr. Nardell: *Page 773
Q. But you're sitting here on the stand. You have to give us your opinion. What is the percentage chance that he was going to get sick on that day?
A. That he was going to get infected.
Q. Infected, I'm sorry.
A. Okay. Looks like somewhere around 25 to 30 percent.Q. Twenty-five to 30 percent chance that he is going to get infected?
A. Yes.
Q. And when you say infected, you mean being a converter?
A. That's correct.
Q. And could you tell us what the chances are of any converter, that that person would come down with the sickness?
A. It's five to ten percent.
Q. Five to ten percent. Let's go with the highest one. So, if he had a 30 percent chance of getting sick or being a converter, he then had a three percent chance of actually getting sick?
A. Yes.
Q. All right. And how many of the people who get sick with multi drug resistant tuberculosis actually pass away, around 50 percent?
A. I would say fewer than that.
Q. Less than —
A. Fifty percent is an okay number.
Q. So, at the time that Mr. Padney went into that room, he had a 1.5 percent chance of becoming fatally ill?
A. By these assumptions, yes.
(Tr. 380-381.)
The significance of that testimony becomes relevant when compared with the analysis offered in Pratta v. E.I. du Pont de Nemours and Co. (D.N.J. Aug. 7, 1992), 1992 U.S. Dist. LEXIS 12105, unreported, where Pratta claimed he developed bladder cancer from exposure to chemicals from 1961 to 1973. He produced evidence that between 1954 and 1981, 8.3% of du Pont workers developed bladder cancer and argued that because historically a percentage of the workforce had developed cancer, it was substantially certain other cases would occur and therefore du Pont committed an intentional tort. The court there concluded that a 8.3% risk did not rise to the level of substantial certainty; similarly, neither does a 3% chance of getting sick or a 1.5% chance of becoming fatally ill. *Page 774
In my view, the evidence presented fails to establish a prima facie case of intentional tort, and, therefore, I believe that the trial court properly granted a directed verdict in favor of MetroHealth on this claim. Accordingly, I dissent.