Ohio Supreme Court Upholds Employer Intentional-Tort Law: What Injured Workers Can Still Do

Published April 27, 2010 · Ohio Supreme Court

A press operator loses part of a hand because the machine's guard was never replaced. A warehouse worker is crushed because management kept a forklift in service after three reports that its brakes were failing. For decades, workers in situations like these could sometimes sue their employers directly, outside the workers' compensation system, by showing the employer knew an injury was "substantially certain" to happen.

On March 23, 2010, the Supreme Court of Ohio upheld a 2005 statute that largely closes that door. The case is Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-1027, decided together with a companion case, Stetter v. R.J. Corman Derailment Services, 2010-Ohio-1029. This is not a good decision for injured workers, and I will not pretend otherwise. But understanding exactly what it holds is the first step toward finding the recovery that remains.

Workers' compensation and the intentional-tort exception

Ohio's workers' compensation system is a trade. Injured workers get medical care and partial wage replacement without having to prove anyone was at fault. In exchange, employers are immune from being sued for workplace injuries, even when they were careless.

Ohio courts long recognized one exception: an employer that intentionally injured a worker could be sued like anyone else. In the 1980s, the Supreme Court expanded that exception to include situations where the employer knew that harm was substantially certain to follow from a dangerous condition and required the employee to face it anyway. Under that court-made test, a worker did not have to prove the employer wanted to hurt anyone, only that the employer knew injury was practically inevitable.

The General Assembly tried twice to narrow the exception by statute, and the Supreme Court struck down both earlier attempts. The third attempt, R.C. 2745.01, took effect in April 2005. Kaminski is the case that decided whether it would survive.

What the statute says

R.C. 2745.01(A) allows an employee to recover from an employer for an intentional tort only if the employer acted "with the intent to injure another or with the belief that the injury was substantially certain to occur." That sounds like the old test. But division (B) defines "substantially certain" to mean that the employer "acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death."

In other words, both routes lead to the same place: the worker must prove the employer actually meant to cause harm. As the Supreme Court acknowledged, the statute permits recovery "only when an employer acts with specific intent to cause an injury."

Division (C) carves out one presumption that favors workers. If the employer deliberately removed an equipment safety guard, or deliberately misrepresented a toxic or hazardous substance, the law presumes intent to injure when an injury results. The employer can try to rebut that presumption, but the burden shifts.

What the Court decided

Rose Kaminski was a press operator at a metal-fabrication plant in Salem, Ohio, when she was injured in June 2005, about three months after the statute took effect. The Seventh District Court of Appeals held the statute unconstitutional and allowed her claim to proceed under the older court-made standard.

The Supreme Court reversed. Its syllabus states: "R.C. 2745.01 does not violate Section 34 or 35, Article II of the Ohio Constitution." Those are the provisions of Ohio's constitution dealing with laws for the welfare of employees and with the workers' compensation system. The Court limited its earlier decision striking down the 1990s version of the statute, found that the current statute is different, and concluded that the General Assembly has the authority to define the employer intentional tort narrowly. The Court then held that nothing in Kaminski's record showed deliberate intent to injure, and it reinstated summary judgment for the employer.

Stetter, decided the same day, answered questions certified by a federal court and reached the same conclusion on the statute's constitutionality.

Who this hurts

The workers hurt most by this decision are those injured by conditions the employer knew were dangerous but did not "intend" to cause harm. The guard that was never replaced, the chemical exposure that was ignored, the lockout procedure that was skipped to keep production moving: under the old test, a jury could find that an employer who tolerated those conditions knew injury was substantially certain. Under R.C. 2745.01 as construed in Kaminski, that knowledge is not enough. The worker must show the employer wanted the injury to happen, or fit within the safety-guard or toxic-substance presumption.

For most of those workers, the direct claim against the employer is now gone, and workers' compensation is the only recovery from the employer.

The paths that remain

A workplace injury is not a dead end. It means the case has to be built differently.

The safety-guard presumption. If an employer deliberately removed a guard from a press, saw, conveyor, or other machine, R.C. 2745.01(C) presumes intent to injure. These cases turn on evidence: maintenance records, photographs of the machine, the manufacturer's original design, and testimony from coworkers about who removed the guard and why. That evidence must be gathered before the machine is repaired or replaced.

Deliberate misrepresentation of a hazardous substance. The same presumption applies when an employer deliberately misrepresents a toxic or hazardous substance and the worker is injured or made ill.

Third-party claims. R.C. 2745.01 limits claims against your employer. It says nothing about claims against anyone else. The manufacturer of a defective machine, the contractor whose crew created the hazard, the property owner who controlled the site, and the driver who hit your company truck are all outside the workers' compensation bargain and can be sued for ordinary negligence. In serious-injury cases, these third-party claims are often where the real recovery lies. We handle them as part of our injury practice, including crashes in work vehicles and commercial truck collisions.

Workers' compensation, done right. Even without a lawsuit, a serious injury claim in the workers' compensation system involves decisions about permanent partial disability, permanent total disability, and additional awards for specific safety-requirement violations. Those are separate matters, but they should be coordinated with any third-party case.

What this means for you

If you were seriously injured at work, do not assume the only option is a workers' compensation check. Ask three questions. Was a safety guard removed or disabled? Did someone other than your employer, such as an equipment maker, a contractor, or another driver, contribute to the injury? And is the evidence being preserved, or has the machine already been "fixed"?

The answers determine whether you have a claim worth far more than workers' compensation pays. Deadlines apply to these claims just as they do to any injury case, as we explained in our post on Ohio's two-year injury deadline, and the evidence in a workplace case disappears faster than in almost any other.