dissenting. The majority’s holding that the receipt of workers’ compensation benefits does not preclude an employee from also pursuing a common-law action for damages against his employer for an intentional tort is not only inconsistent with the legal analysis employed in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St. 2d 608 [23 O.O.3d 504], it is more importantly in direct contravention of the Ohio Constitution. Accordingly, I dissent.
In Blankenship, this court reasoned that an employee is not precluded by the Ohio Constitution or R.C. 4123.74 from enforcing common-law remedies against one’s employer for an intentional tort since such torts are not compensable under the workers’ compensation laws. Intentional torts are not covered under workers’ compensation because the initiating cause of injury is not a hazard of employment and the resulting injury cannot be said to have been received by an employee in the course of or arising out of his employment. Blankenship, supra, at 612-613.
The majority, in reaching its conclusion, ignores this legal basis for the Blankenship decision. One act of an employer cannot logically be within the scope of employment while at the same time not within the scope of employment. Nor can one act simultaneously be both a hazard of employment and not a hazard 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, as the majority so finds.
This court recognized in Blankenship at page 614 that the Workers’ Compensation Act was intended to operate “* * * as a balance of mutual compromise between the interests of the employer and the employee.” The majority’s decision totally and unwarrantedly destroys this balance—the employee retains the benefits of the Act and eschews the burden of relinquishment of possibly greater award at common law, while the employer retains the burden of mandatory payment but has lost the benefit of freedom from potentially unlimited liability. Under the majority’s analysis, there is simply no balance; an employee would indeed be foolhardy not to pursue suits in both forums for every injury sustained. The majority’s rationale encourages every employee to allege intentional tortious conduct upon facts which can only support recovery under a pure negligence theory. Clearly, the majority’s decision undermines the very theory of the workers’ compensation system.
*103Moreover, I would stress that this court just recently, decided Kaiser v. Strall (1983), 5 Ohio St. 3d 91, 94, the legal analysis of which is equally applicable to this case, wherein it was stated as follows:
“* * * What appellants actually seek is this court’s approbation permitting them to assert before an administrative body that the subject injury is within its jurisdiction, argue the opposite to invoke the authority of a common-law tribunal, and then be free to pick the best offer. Our system for legal redress of injuries is not a shopping mart, however. A claimant must frequently make a binding choice between alternative forms of relief. Indeed, by electing to seek a potentially preemptive administrative remedy, appellant herein voluntarily jeopardized her right to have her claim adjudicated in a civil proceeding.”
Even if I were to conclude that there are strong public policy considerations which militate against a finding that an employee, by receiving workers’ compensation benefits, waives his right to institute a tort action when his employer’s conduct amounts to an intentional tort, I would nonetheless be unable, pursuant to my oath of office, to so hold, for such a position is irreconcilable with the plain language of Section 35, Article II of the Ohio Constitution. This section provides as follows:
“* * * [Workers’] 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 * * * shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease.”
Pursuant to this section, and in conjunction with R.C. 4123.74 which provides that “[e]mployers who comply with section 4123.35 of the Revised Code 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,” an employer is immune from two separate litigations for a single injury. The Blankenship decision did not and indeed could not erase these dispositive words from the Ohio Constitution.
For the foregoing reasons, I respectfully dissent.