By: Mark Barnes
Under R.C. 4123.74, the benefits provided by Ohio’s workers’ compensation law are an employee’s exclusive remedy for injuries sustained in the course of and arising out of employment. An employer is immune from civil suits for work-related injuries if the employer has complied with the law by paying worker’s compensation premiums or is self-insured. However, employers remain liable for injuries resulting from intentional acts of an employer to harm an employee. These are known as intentional torts and are codified in R.C. 2745.01.
In 2004, the Ohio General Assembly enacted the intentional tort statute with the intent to significantly restrict recovery for employer intentional torts to circumstances where the employer acts with the specific intent to cause an injury. Before the enactment of R.C. 2745.01, employers had liability for injuries they knew or should have known were substantially certain to occur. Over the last two decades, R.C. 2745.01 has survived numerous challenges by plaintiffs attempting to subvert the will of the General Assembly. Recently, Bugbee & Conkle successfully defended one of these challenges in the Sixth District Court of Appeals in Bliss v. Johns Manville, 2021-Ohio-1673 (May 14, 2021).
In Bliss, the plaintiff alleged the employer committed an intentional tort after he was injured after placing his hand inside a piece of machinery called a lift apron. The lift apron was part of a conveyor system designed to transport fiberglass, which would be formed into insulation. Because the lift apron had one inch metal spikes on its surface, the device was dangerous if touched. The lift apron also contained an access window, which allowed operators to see inside the operation of the lift apron, and which could be opened to dislodge excessive accumulation of fibers. In this case, the plaintiff opened the access window and reached into the machinery to dislodge excessive fibers impeding the operation of the lift apron. Upon reaching into the lift apron, the plaintiff suffered serious injuries to his hand. After receiving workers’ compensation benefits, the plaintiff filed an intentional tort lawsuit against the employer.
The employer moved the trial court for summary judgment on the ground there was no evidence the company intended to injure the plaintiff. The plaintiff defended against the summary judgment motion by arguing the company deliberately removed an equipment safety guard when the company failed to bolt down the access window. In support of his argument, the plaintiff filed an affidavit of an expert who opined the company’s failure to secure the access window amounted to the deliberate removal of an equipment safety guard. Under R.C.2745.01(C), a plaintiff is entitled to a rebuttable presumption that the employer intended to injure him if the plaintiff shows the employer deliberately removed an equipment safety guard. The trial court denied the employer’s summary judgment motion and the case proceeded to trial. After the jury returned a verdict in favor of the plaintiff, the company appealed the judgment to the court of appeals.
On appeal, the Sixth District found the trial court abused its discretion by relying on the affidavit of the plaintiff’s expert. The question of whether an employer deliberately removes an equipment safety guard is a question of law to be determined by the trial court, which means the court cannot rely on the opinions of experts to render such a determination. The court also found there was no evidence of intent to injure, which is the ultimate question under the statute. Importantly, the court drew a sharp distinction between negligent conduct and intentional conduct. Citing Ohio Supreme Court precedent, the court wrote: “liability of the employer cannot…be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence…or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury.”
The Bliss decision is important for employers because plaintiffs and plaintiff law firms continue to attempt to undermine the intentional tort law. Unless there is evidence the employer intended to injure an employee, most intentional tort lawsuits should be disposed of prior to trial.