concurring. I concur in the judgment of the majority because it reaches the proper ultimate result. However, it continues to be my judgment, as expressed in my dissenting opinion in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St. 3d 149, 522 N.E. 2d 464, that R.C. 4121.80 cannot apply in any respect to a relationship which is not employer-employee. If the theory of Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St. 2d 608, 23 O.O. 3d 504, 433 N.E. 2d 572, is accepted, as it must be to reach the majority’s position herein, then, by necessity, the injury caused by the alleged intentional tort happened outside the “employment relationship,” even though the injury did occur during the “course of employment.”
With the foregoing reservation, I agree with the syllabus set forth in the majority opinion. I would go further, however, and decide an additional matter that was extensively discussed at the oral argument of this case. I think for the guidance of the bench and bar in like cases we should indicate that a case is only pending when it is in the trial court or is on appeal as of right. It is my judgment that a case is not pending even when a motion for certiorari, either to this court or the United States Supreme Court, has been filed. If the case, upon motion for review, is accepted by either this court or the United States Supreme Court, then that case would once again be pending.
Subject to the discussion in my dissenting opinion in Taylor, supra, and the foregoing (to the effect that R.C. 4121.80 does not apply in any respect to intentional tort actions filed by an injured person who suffered the injury during the course of employment because the language used in *141each section of R.C. 4121.80 is “employer-employee” language), I agree that R.C. 4121.80(G)(1) may not be retroactively applied. I would go further, however, than the majority opinion and decide whether any part of R.C. 4121.80 is applicable to cases arising prior to August 22, 1986. The bench and bar throughout this state are anxiously awaiting a pronouncement from this court on all the issues raised by R.C. 4121.80 including, but not limited to, the constitutionality of the entire statute, the questions of the statute of limitations and statute of repose in section (A), the question of whether a jury trial may be or is negated by section (D), the cap on damages question in section (D), attorney fees provisions in section (F) and the question of whether the Industrial Commission can even be properly given the authority accorded to it by the legislature pursuant to this enactment. Our decision today will not give the needed answers to these questions. Trial judges and attorneys will still be left with the question whether cases should be tried under the “new law” or the “old law.” The argument can be made that all these issues are not before us in this case. I think they are on the basis that the question of the retroactivity of R.C. 4121.80 has been raised.
I recognize that over the course of the years there has been a distinction made between retroactivity as it applies to laws affecting “substantive” rights and those which concern only “procedural or remedial” aspects of particular litigation. Section 28, Article II of the Ohio Constitution seems, on its face, to be clear that the General Assembly has no power to pass retroactive laws. I fear that our decision today might add to the confusion of that ever-shifting line between what is substantive and what is procedural. I would simply hold that R.C. 4121.80 by its terms makes the law retroactive and is in contravention of Section 28, Article II of the Ohio Constitution.
Finally, I comment on the incisive discussion by Justice Brown concerning Comment b to Section 8A of 1 Restatement of the Law 2d, Torts (1965) 15.1 think Justice Brown has, in his intellectual discourse, struck upon the proper balance to be applied and the test to be used in determining what is an intentional tort. It should be noted that the discussion in the majority opinion concerning the Restatement does not involve workers’ compensation laws or injuries occurring as a result of employment. As we come closer to resolving these often-litigated, highly emotional and ever-controversial areas, I once again reiterate that it is my judgment that since an alleged intentional tort occurs outside the employment relationship, neither R.C. Chapter 4123 nor 4121.80 can apply because by their own terms they deal with employer-employee relationships. Parties to an action alleging an intentional tort occurring during the course of employment are, for purposes of the intentional tort action, no longer employer and employee but are, instead, alleged intentional tortfeasor and victim. An allegation of an intentional tort, which occurs during the course of employment, should be treated as any other intentional tort and should be litigated by the same rules as we use to determine other such actions. Such consideration could include, for the determination of intent, the comment from the Restatement so well-analyzed and explained by Justice Brown.
Accordingly, I concur.