dissenting.
I
While I agree with the ultimate result reached by the majority opinion in this case, I respectfully dissent because of the supernumerary language of the opinion. With all due respect, I fear that our opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than we found it.
As an example, it is difficult to determine, at least for me, whether the majority opinion seeks a return to the absolute “exclusivity-of-remedy” rule of Section 35, Article II of the Ohio Constitution and R.C. 4123.74, formerly considered applicable to these cases, or is satisfied that 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, are correct results on the law pertaining to intentional torts committed against employees during the course of employment. Likewise, I am genuinely concerned with the statement that “* * * courts have quite consistently refused to stretch the common-law liability of an employer to include accidental injuries resulting from the gross, wanton, reckless, or culpable negligence of the employer.” (Emphasis added.) The term “wanton” used with the word “negligence” would seem to be misplaced if we accept the usual connotation of “wanton” to include an act done with consciousness or wilfulness. Therefore, it is because of these and other concerns that I dissent notwithstanding my general agreement, as detailed infra, with much of the law set forth in the majority opinion.
II
I have expressed, in my dissenting opinion in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St. 3d 149, 155-163, 522 N.E. 2d 464, 470-477, and my concurring opinion in Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St. 3d 135, 140-141, 522 N.E. 2d 477, 482-483, that laws which involve an employer-employee relationship (including R.C. 4121.80) cannot apply in any respect to a relationship which is not employer-employee. The majority herein now, apparently, accepts the theory of Blankenship and Jones. The majority by approving those cases accepts the theory that the within alleged intentional tort occurred outside the “employment relationship” even though the injury did occur during the “course of employment.” On this sub*121ject I continue to adhere to my view as set forth in my dissenting opinion in Taylor.
III
The case at bar comes to us from the Court of Appeals for Summit County upon certification of conflict. See Section 3(B)(4), Article IV of the Ohio Constitution. The question certified to us is “* * * whether the new Workers’ Compensation law, R.C. 4121.80, effective August 22, 1986, is applicable to cases pending in an appellate court by virtue of R.C. 4121.80(H) * * *.”
It would seem, therefore, that the only issue certified to us for determination is the meaning of the words “pending in any court” as they are used in R.C. 4121.80(H). A review of the majority opinion reveals that the opinion goes far afield of this limited issue. That is entirely proper. When a record of a case is certified to this court for a determination of any question because of a conflict between judgments of courts of appeals, the certification brings before this court the entire case for review. Brown v. Borchers Ford, Inc. (1977), 50 Ohio St. 2d 38, 39, 4 O.O. 3d 89, 90, 361 N.E. 2d 1063, 1064; Couk v. Ocean Accident & Guar. Corp., Ltd. (1941), 138 Ohio St. 110, 20 O.O. 65, 33 N.E. 2d 9.
Given this mandate and right of complete review and also the broad language of the certification order of the court of appeals regarding the applicability of all of R.C. 4121.80, I would, for the reasons expressed in my concurring opinion in Kunkler, go further than just deciding the questions of the meaning of “pending” and the retroactivity of R.C. 4121.80(G). Literally hundreds of cases involving alleged intentional torts arising out of employment are pending in both federal and state courts. Our avoidance of the ultimate question of whether all of R.C. 4121.80 is to be retroactively applied to these cases permits the current confusion to continue unnecessarily. The judges, attorneys and litigants who are anxiously awaiting our determination will be sorely disappointed. For this additional reason, I must dissent.
IV
Moving directly to the majority opinion, with regard to the “pending” issue, I adhere to my position as set forth in Kunkler. As to the retroactivity question, I would hold that R.C. 4121.80, by its terms, makes the law retroactive and accordingly is in contravention of Section 28, Article II of the Ohio Constitution. I would apply this analysis to all the provisions of R.C. 4121.80.
The majority opinion purports to explain Blankenship and Jones. By doing so, the majority implicitly accepts the holdings of both cases. This, for at least some of the majority, is a major change of position. In explaining Jones, the majority asserts that “[w]e now interpret Jones to require knowledge on the part of the employer as a vital element of the requisite intent.” The majority then sets forth a three-part test, relying on Section 8(A) of the Restatement of Torts 2d and Section 8 of Prosser & Keeton on Torts as the basis for establishing “intent.” I fail to see how this in any way changes or even explains Jones. Much the same language is contained throughout Jones. As an example, see Jones, at 95, 15 OBR at 250, 472 N.E. 2d at 1051, wherein the Jones court limited those fact situations from which “intent” may properly be inferred, and distinguished intentional torts from negligence and from wanton or reckless misconduct.
Accordingly, if we are going to ap*122ply the Restatement and Jones to alleged intentional torts arising out of employment, then I agree with the majority’s restatement or rewording of Jones, subject, however, to my previous discussion that we should not be applying cases or legislation concerning the employer-employee relationship, but should be applying the principles of common-law intentional tort or, in the alternative, the principles of the Restatement as set forth in Jones, Kunkler and the majority opinion herein.
V
I agree with the majority that Jones and some subsequent cases have created confusion in the field of alleged intentional torts occurring in the course of employment. The confusion did not result from the law regarding “substantial certainty” announced in Jones. In my judgment, the problems have arisen because of the misapplication of the law announced in Jones to the facts of the trilogy of cases decided therein. The Jones court should have found that the fact situation involving the presence of a‘ high voltage electrical power line near the area where the employees were working did not rise to the level of “substantial certainty” that the employees would come in contact with and/or be injured by the power line. In my view, knowledge that injury was “substantially certain” to occur cannot be inferred from those facts.
In the second case decided in Jones, the removal of a safety guard by the employer presented a closer question. Reasonable minds, as in all the close cases, can differ as to whether a jury question arises. See, as an example, Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St. 3d 124, 129-132, 522 N.E. 2d 511, 516-519, and the dissents of Justice Locher and myself therein. It is natural that judges and juries from differing backgrounds will disagree on close cases depending on their specific orientation. That does not, necessarily, make either position right or wrong. In a sensitive area such as this, involving issues over which reasonable persons may easily and heatedly differ, there is no reason for any of us to stake out positions which provoke animosity. In a case presenting a close factual question, this court is bound to uphold the verdict returned by the jury. Therefore, the reinstatement of the verdict by the Jones court was completely proper.
The third case decided in Jones involved the apparently deliberate misrepresentation of a toxic or hazardous substance in the workplace, which seems to me to rise to the level of “substantial certainty” or at least presents a jury question of whether injury to employees was substantially certain to occur because of the employer’s actions. Therefore, the Jones court was correct, I believe, in reinstating the jury verdict in favor of the injured workers in that case.
If the foregoing analyses had been made in the first case, and the application of the law discussed in more depth, it is my judgment that we would not have the confusion we have today in this field of law.
VI
I turn now to the facts in the case at bar. R.C. 2503.43 states that “[i]n a civil case or proceeding, * * * the supreme court need not determine as to the weight of the evidence.” While this section and a line of cases decided by this court provide that we ordinarily do not and need not weigh evidence, there is no mandate that prohibits us from doing so — especially when the case before us and the issues to be decided are not “ordinary.” The entire *123question of intentional tort falls into this category and, therefore, I am in agreement with the majority in its decision to weigh the evidence. In addition, the case before us presents an especially good fact pattern to make several additional points.
With one exception,, the facts, as recited in two places in the majority opinion, are complete. The additional fact I would add is that the appellee-employee was fully familiar with the steps in question and had, in fact, gone up and down the steps five or six times on the evening of his fall.
Based upon these facts it does not appear to me to even be a close case concerning whether the employer could have been “substantially certain” that the injury to appellee would occur. Whether we use the common-law intentional tort standard, the Jones standard or the Restatement standard unencumbered by the Jones facts, this case comes out the same. There was no intentional tort committed by appellant Babcock & Wilcox and the trial court was correct in granting summary judgment to this appellant. I agree with the majority in the reinstatement of the summary judgment.
But, I fear, under our judgment today, the confusion will continue. This case and many like it have been filed alleging intentional torts when there is no legal or factual basis to support such claims. Some, obviously, have been filed to prevent future claims of legal malpractice. Some have been filed in the hope that the cost of defense will bring about some settlement. Some have been filed on the theory of “what can it hurt?”
Well, it does hurt! To have a case like this reach this level entails substantial litigation costs — both to the parties and to the courts. This pattern is being followed over and over again. There should be a definitive answer from this court to terminate this practice. I have two suggestions that I would hope a majority of this court would adopt in some future case.
I have often expressed my belief that where an employer commits acts which amount to an intentional tort against an employee and the employee is thereby injured, the law should not immunize the employer from liability solely on the basis that the employer is a contributing member of the workers’ compensation system. To condone such activity under any theory of law would not be a just result.
Conversely, to place an employer in a position of having to extensively defend an “intentional tort” case which is based upon nebulous theories and speculations is likewise not a just result. The cost of defense alone is enough to seriously damage some employers. This is especially so since this court, by a split vote, has decided that employers may not insure themselves against liability for intentional torts. Wedge Products, Inc. v. Hartford Equity Sales Co. (1987), 31 Ohio St. 3d 65, 31 OBR 180, 509 N.E. 2d 74.
To aid our trial and appellate courts in granting and upholding Civ. R. 12(B)(6) and 56 motions, in proper cases, I would hold that a pleading alleging an intentional tort must contain operative facts pled with particularity, much the same as is required by Civ. R. 9(B) for fraud. In the case of intentional tort pleadings, this would require (and permit) the trial court to make a more detailed examination than is required or permitted by O’Brien v. University Community Tenants Union, Inc. (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, syllabus. Those cases that fall short on facts indicating that an inten*124tional tort was committed could be dismissed without loss of further time or expense.
For those cases which survive a Civ. R. 12(B)(6) motion under this standard, I would require a heightened review on summary judgment akin to that which we require in defamation cases. In cases of libel, courts, both trial and appellate, are required to construe all the evidence under a heightened standard of review. Grau v. Kleinschmidt (1987), 31 Ohio St. 3d 84, 31 OBR 250, 509 N.E. 2d 399; Varanese v. Gall (1988), 35 Ohio St. 3d 78, 80-81, 518 N.E. 2d 1177, 1180-1181. This would tend to lend more credence to those cases where an intentional tort has, in fact, been committed and would better assure coherent appellate review.
Finally, if either or both of these proposals were adopted, I would make them prospective only.