concurring. I concur in the well-reasoned opinion of the majority. Justice Sweeney has, in rapid fashion, gone to the heart of the issue. Clearly, Section 35, Article II of the Ohio Constitution does not permit legislation of the ilk of R.C. 4121.80.
I write separately because in addition to those reasons expressed by the majority, I find R.C. 4121.80, and its various parts, to be unconstitutional as being in violation of equal protection, Section 2, Article I; right to trial by jury, Section 5, Article I; and open courts, Section 16, Article I. My reasoning on each subject can be found in greater detail in Justice Sweeney’s opinion concurring in part and dissenting in part in Morris v. Savoy (1991), 61 Ohio *636St.3d 684, 700, 576 N.E.2d 765, 777, which, where pertinent, I incorporate herein.
R.C. 4121.80(D) places a “cap” on damages that can be recovered by an injured employee from an offending employer. Solely because a victim is an “employee,” such victim is treated differently from other victims of intentional torts. This creates a special category of intentional tort victims within the class of all victims of intentional torts and to meet constitutional muster, such “[legislation must apply alike to all persons within a class, and reasonable grounds must exist for making a distinction between those within and those without a designated class. * * * ” Porter v. Oberlin (1965), 1 Ohio St.2d 143, 30 0.0.2d 491, 205 N.E.2d 363, paragraph two of the syllabus. “ * * * Equal protection of the laws requires the existence of reasonable grounds for making a distinction between those within and those outside a designated class. * * * ” State, ex rel. Nyitray, v. Indus. Comm. (1983), 2 Ohio St.3d 173, 175, 2 OBR 715, 717, 443 N.E.2d 962, 964. It is difficult to see what legitimate interest the state has (and I find none) in treating victims of intentional torts by employers differently from all other intentional tort victims.
Since there are no reasonable grounds for making a distinction, R.C. 4121.80(D) is violative of the right of equal protection as guaranteed in Section 2, Article I of the Ohio Constitution and is, thus, unconstitutional.
While it is arguable that the “directed verdict” language in R.C. 4121.-80(C)(2) can be used to secure a jury trial, notwithstanding the use of the word “court” in R.C. 4121.80(D) (see Miller v. Wikel Mfg. Co. [1989], 46 Ohio St.3d 76, 81, 545 N.E.2d 76, 81 [Douglas, J., concurring in part and dissenting in part]), it is absolutely clear that R.C. 4121.80(D) does abrogate the right to trial by jury as to the assessment of any damages. Damage determination is delegated to the Industrial Commission. Thus, the General Assembly has ignored Section 5, Article I of the Ohio Constitution, which, in part, provides that “[t]he right of trial by jury shall be inviolate. * * * ” It is hard to think of language that is any more absolute — and yet the language and right have been summarily ignored by the damage assessment provision of R.C. 4121.-80(D). If this encroachment is permitted to survive constitutional attack, what is next? The time has come to draw the line. I would do so by saying that R.C. 4121.80, and specifically R.C. 4121.80(D), violate Section 5, Article I of the Ohio Constitution and are, accordingly, unconstitutional. See, also, R.C. 4121.80(B).
It would be well for us to recall the First Inaugural Address, in March 1801, of President Thomas Jefferson, when he said, in part, that “[e]qual and exact justice to all men * * *; freedom of religion; freedom of the press; * * * and *637trial by juries impartially selected — these principles form the bright constellation which has gone before us, and guided our steps through an age of revolution and reformation. The wisdom of our sages and the blood of our heroes have been devoted to their attainment. They should be the creed of our political faith * * *; and should we wander from them in moments of error or alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.” (Emphasis added.) The Writings of Thomas Jefferson (Padover Ed.1967) 274.
Will we be part of dimming that “bright constellation”? Will we, on our watch, permit the sacred right of trial by jury to be tarnished and weakened? I would hope not and, certainly, I could never be part of any such movement.
Time and again in recent years we have been called upon to review and apply Section 16, Article I of the Ohio Constitution. The provision provides that all courts shall be open and every person (not just non-employees) shall have access to the court to seek a remedy for injury to his or her land, goods, person or reputation. Pertinent parts of R.C. 4121.80 take away this right and, therefore, without needing to say anything further, R.C. 4121.80 is also unconstitutional as being in violation of Section 16, Article I of the Ohio Constitution. See, e.g., Mominee v. Scherbarth (1986), 28 Ohio St.3d 270, 28 OBR 346, 503 N.E.2d 717; Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 512 N.E.2d 626; and Gaines v. Pre-Term Cleveland, Inc. (1987), 33 Ohio St.3d 54, 514 N.E.2d 709. (The remedy, as we said in Gaines, must be “meaningful.” If R.C. 4121.80 provides any remedy for victims of intentional torts, that remedy certainly is not meaningful.)
Pages and pages could be written on the “substantially certain” definition found in R.C. 4121.80(G)(1). Rather than do so, I refer any interested reader to my dissenting opinion in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 155, 522 N.E.2d 464, 470. Suffice it to say that for any civil liability to attach, the statute requires that an employer must have deliberately intended to cause injury or death of an employee. If these words are read slowly and with understanding, their impact becomes obvious — and alarming. I just cannot subscribe to the thought that the General Assembly meant that before an intentional tort in the workplace can be established, the perpetrator has to be guilty of a criminal assault or murder. Yet this is what the words say and there is no room for any other interpretation. Such legislation cannot be in keeping with substantive due process and is, therefore, unconstitutional.
Finally, the rambling dissent of Justice Holmes needs some comment. He describes the majority opinion as “judicial flummery.” Let us analyze the dissent and see what it really says and then we can determine from whence the real flummery flows. *638The dissent, playing a very old tune, once again attacks the case of Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572. This is, of course, the same Blankenship case that Justice Holmes cited as authority in his ever confusing (see Fyffe v. Jeno’s, Inc. [1991], 59 Ohio St.3d 115, 570 N.E.2d 1108) majority opinion in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489. There is much that could be said about his “exclusivity” and Section 35, Article II of the Ohio Constitution and R.C. 4123.74 arguments but that would only be plowing ground previously (and often) plowed. The more interesting point is the complete lack of understanding exhibited by the dissent as to the theory of Blankenship (and even Van Fossen) regarding an intentional tort arising out of the employment context.
Now let us see if we can make any sense at all out of the dissent. Justice Holmes says that if the injury (tort) occurs while the victim is working, then there can be no cause of action or recovery except through workers’ compensation. His authority for this is Section 35, Article II of the Ohio Constitution and R.C. 4123.74. Taking his proposition to its ultimate extreme, that means that if an employee is working in a shop at a machine and his employer comes up to the employee and beats the employee over the head with a two-by-four, thereby rendering the employee senseless and permanently injured, that employee is limited to the workers’ compensation system for redress of his injuries because the attack occurred while he was at work. This is, of course, ludicrous and that is why there is a Blankenship case and a dissent in Taylor v. Academy Iron & Metal Co. (1988), 36 Ohio St.3d 149, 522 N.E.2d 464.
Yet, Justice Holmes in his dissent says that it is flummery to provide the employee with a cause of action for intentional tort on the basis that the employment relationship agreement between the employer and employee never contemplated that an employer would have immunity for the commission of an intentional tort against the employee. In fact, the dissent says, “ *
* * [w]hat absurdities the majority has embraced by relying on the Taylor dissent, and adopting the theory espoused in Blankenship that an intentional tort does not arise out of employment but 'necessarily occurs outside the employment relationship.’ * * * ”
Therein lies the problem. If Justice Holmes is correct that such injuries arise out of the employment relationship, then any recovery outside the workers’ compensation system is barred by Section 35, Article II and R.C. 4123.74. But, if he accepts the Blankenship theory, as he did in Van Fossen, then necessarily the injury must have occurred during the course of employment but outside the agreed-to employment relationship. This is a distinction that he, for some reason, has never been able to grasp — that is, that he cannot *639have it both ways! Thus, when he describes my dissent in Taylor as being “erratically philosophized,” he does so, I submit, on the basis that he must resort to diatribe because his position cannot be rationally or legally supported and is the real mumbo jumbo and mummery in these cases.
For the reasons expressed by the majority and for those expressed above, I concur.
Herbert R. Brown, J.,concurring. I concur in the syllabus, the judgment and much of the reasoning of the majority opinion written by Justice Sweeney. I write separately to fill in what I believe to be a gap, and to clarify the state of Ohio’s employer intentional tort law.
I
R.C. 4-121.80 and the Police Power
As Justice Sweeney correctly states in the majority opinion, R.C. 4121.80 is not authorized by Sections 34 and 35, Article II of the Ohio Constitution.
Section 34, Article II was added to the Ohio Constitution in 1912. This section empowered the General Assembly to regulate the employment relationship without running afoul of the now-obsolete judicial doctrine of “economic substantive due process.” See, generally, 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913) 1331, 1334-1335. As we recognized in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 612-613, 23 O.O.3d 504, 507-508, 433 N.E.2d 572, 576, an employer’s intentional tort against his employee is not an act which takes place within the employment relationship. Thus, this section of the Constitution does not apply to employer intentional torts because they are not part of the employment relationship.
Section 35, Article II created the workers’ compensation system. Its purpose is to compensate employees for their workplace injuries by substituting an administrative proceeding for a negligence action brought in the civil courts — where the doctrines of contributory negligence and assumption of the risk and the fellow-servant rule made it all but impossible for the injured worker to recover. See, generally, Prosser & Keeton, The Law of Torts (5 Ed.1984) 568-577, Section 80. It has been universally recognized, either by statute or judicial interpretation, that an exception to the exclusivity of workers’ compensation exists for the employer’s intentional wrongs. See, e.g., Blankenship, supra; Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 111-112, 522 N.E.2d 489, 500; Serna v. Statewide Contractors, Inc. (1967), 6 Ariz.App. 12, 429 P.2d 504; Mingachos v. CBS, Inc. (1985), 196 Conn. 91, 491 A.2d 368; Sullivan v. Liberty Mut. Ins. Co. (Fla.App.1979), 367 *640So.2d 658, certiorari denied (Fla.1979), 378 So.2d 350; Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198; Hildebrandt v. Whirlpool Corp. (Minn.1985), 364 N.W.2d 394; Noonan v. Spring Creek Forest Products, Inc. (1985), 216 Mont. 221, 700 P.2d 623; Millison v. E.I. duPont de Nemours & Co. (1985), 101 N.J. 161, 501 A.2d 505; Crespi v. Ihrig (1984), 99 App.Div.2d 717, 472 N.Y.Supp.2d 324, affirmed (1984), 63 N.Y.2d 716, 480 N.Y.Supp.2d 205, 469 N.E.2d 526; Kittell v. Vermont Weatherboard, Inc. (1980), 138 Vt. 439, 417 A.2d 926; Mandolidis v. Elkins Industries, Inc. (1978), 161 W.Va. 695, 246 S.E.2d 907; Prosser, supra, at 576-577, Section 80. Intentional torts do not, therefore, come within the scope of Section 35, Article II.
This does not mean, however, that the General Assembly has no power to modify intentional tort law by legislation. The legislature may do so in the exercise of its police power. Cf. State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, 97 N.E. 602 (enactment of Workers’ Compensation Act prior to the adoption of Section 35, Article II was a valid exercise of the police power). However, while the General Assembly’s exercise of the powers granted by Sections 34 and 35 of Article II is not limited by any other provision of the Ohio Constitution, see, e.g., Rocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1, 13, 539 N.E.2d 103, 114 (Section 34); State, ex rel. Boswell, v. Indus. Comm. (1932), 125 Ohio St. 341, 181 N.E. 476, paragraph two of the syllabus (Section 35), its exercise of the police power is. Thus, it is necessary to go beyond the analysis in the majority opinion and test the constitutionality of R.C. 4121.80 with reference to provisions of the Constitution other than Sections 34 and 35 of Article II.
In such an analysis, R.C. 4121.80 fails in two important respects. First, it denies the right to a trial by jury guaranteed by Section 5, Article I of the Ohio Constitution. That provision of our Bill of Rights preserves the civil jury trial in those causes of action where it existed at the time the Constitution of Ohio, 1851 was adopted. Hoops v. United Tel. Co. of Ohio (1990), 50 Ohio St.3d 97, 553 N.E.2d 252; State, ex rel. Kear, v. Court of Common Pleas (1981), 67 Ohio St.2d 189, 21 O.O.3d 118, 423 N.E.2d 427; Pokorny v. Local No. 310 (1974), 38 Ohio St.2d 177, 180, 67 O.O.2d 195, 196, 311 N.E.2d 866, 869; Belding v. State, ex rel. Heifner (1929), 121 Ohio St. 393, 169 N.E. 301. Employer intentional tort actions are nothing but a special case of the common-law tort of battery. Bishop v. Hybud Equip. Corp. (1988), 42 Ohio App.3d 55, 58, 536 N.E.2d 694, 697. The action for battery has, of course, been long recognized in Anglo-American law, see Prosser, supra, at 29-30, Section 6, and has always been tried to a jury on both liability and damage issues. Thus, Section 5, Article I guarantees a trial by jury in employer intentional tort actions.
*641R.C. 4121.80 contains two provisions which violate Section 5, Article I of the Constitution. Division (D) provides that damages shall be determined by the Industrial Commission rather than a civil jury. By its use of the term “court,” Division (C) appears to also remove the liability determination from the jury. See Comment, Intentional Torts by Employers in Ohio, the General Assembly’s Solution: Ohio Revised Code Section 4121.80 (1987), 56 U.Cin. L.Rev. 247, 265. As this court and at least three of our lower courts have noted, these provisions impair the right to trial by jury. Kneisley v. Lattimer-Stevens Co. (1988), 40 Ohio St.3d 354, 356-357, 533 N.E.2d 743, 746 (R.C. 4121.80[D] may not be applied retroactively because it destroys the right to a jury trial); Bishop, supra, 42 Ohio App.3d at 57-59, 536 N.E.2d at 696-698 (avoiding unconstitutionality by construing R.C. 4121.80[C] to require a jury determination of liability); Schneider v. Jefferson Smurfit Corp. (1988), 42 Ohio App.3d 53, 55, 536 N.E.2d 691, 694 (R.C. 4121.80[D] may not be applied retroactively because it eliminates the substantive right to a trial by jury); Palcich v. Mar-Bal, Inc. (Dec. 24, 1987), Geauga App. No. 1394, unreported, 1987 WL 31715 (R.C. 4121.80[D] unconstitutionally denies right to trial by jury on damage issue). Therefore, they are unconstitutional.
R.C. 4121.80(D) also contains a $1 million cap on damages. Today we also invalidate a cap on noneconomic damages for medical negligence on the ground that it lacked a rational basis. Morris v. Savoy (1991), 61 Ohio St.3d 684, 576 N.E.2d 765. A cap on compensatory damages resulting from intentional conduct needs at least as strict a scrutiny as a cap on damages resulting from negligent conduct.9 The intentional tort cap would limit liability for wrongful conduct over which the tortfeasor has control.
Accordingly, and for these additional reasons, I join in the syllabus and judgment.
II
The Current Status of Ohio’s Employer Intentional Tort Law
R.C. 4121.80 was a legislative reaction to our opinion in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. As we later recognized, some of the expansive language used in Jones led to negligence actions being filed and litigated as “intentional torts.” Van *642Fossen, supra, 36 Ohio St.3d at 115, 522 N.E.2d at 502-503 (describing difficulties resulting from the Jones definition); id. at 122-123, 522 N.E.2d at 509-510 (Douglas, J., dissenting) (same). This trend reached the limit of absurdity in Van Fossen, where we were presented with an employer “intentional” tort claim based on a simple slip and fall. Id. at 118, 522 N.E.2d at 506 (H. Brown, J., concurring).
In response, this court, in a series of cases beginning with Van Fossen and culminating in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, has resolved the difficulties caused by Jones and returned the intentional tort exception to its proper scope. Under these cases, workers’ compensation is the exclusive remedy for the vast majority of workplace injuries. Employers are liable at common law only when they either intend to harm their employees or require employees to work under conditions which the employer knows are substantially certain to cause injury. Fyffe, supra, paragraph one of the syllabus.
Given this body of case law, the fears of some (apparently shared by some of the dissenting justices) that today’s decision will destroy Ohio’s business climate and subject employers to unlimited and unpredictable exposure to liability are not well founded.10 It is time to put an end to the posturing that has accompanied, and continues to accompany, the judicial review of intentional torts in the workplace.
. It should also be noted that courts in several of our sister states have held that malpractice damage caps violate equal protection guarantees. See, e.g., Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825; Ameson v. Olson (N.D.1978), 270 N.W.2d 125; Wright v. Cent. DuPage Hosp. Assn. (1976), 63 Ill.2d 313, 347 N.E.2d 736 (damage cap violates constitutional prohibition against special privileges). These cases suggest that even if R.C. 4121.80(D) could survive the rational basis test, it would probably fail on equal protection grounds.
. There always will be the danger that an employer may incur expenses defending against a frivolous and unfounded “intentional tort” claim. However, the risk that one could be named as the defendant in a frivolous lawsuit is not unique to the employment relationship. See, e.g., Border City S & L Assn. v. Moan (1984), 15 Ohio St.3d 65, 15 OBR 159, 472 N.E.2d 350 (bank sued by corporations); Newman v. Al Castrucci Ford Sales, Inc. (1988), 54 Ohio App.3d 166, 561 N.E.2d 1001 (auto dealer sued by customer); Strauch v. Gross (1983), 10 Ohio App.3d 303, 10 OBR 507, 462 N.E.2d 433 (attorney sued by opponent of former client). Further, I suspect that the only way to ensure that no one will be forced to defend a frivolous lawsuit would be to eliminate the Ohio civil law system entirely.
When frivolous intentional tort claims are brought, they can be quickly disposed of by the trial court, using the substantive law established by Fyffe, supra, and the summary judgment standards we most recently discussed in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 111, 570 N.E.2d 1095, 1099. Like any other civil defendant, the employer has redress, where applicable, under Civ.R. 11 and the court's inherent power to impose sanctions.