Ohio Employers Intentional Tort Statute May Be Unconstitutional

The Seventh District Court of Appeals recently issued an opinion in the case of Kiminski v. Metal & Wire Prod. Co., holding the Ohio employer intentional tort statute, R.C. 2745.01, unconstitutional. The Ohio legislature has enacted several versions of the employer intentional tort statute. The most recent version of R.C. 2745.01 went into effect in 2005. The two previous statutes were held unconstitutional by the Supreme Court of Ohio. Based upon the Supreme Court’s precedent, the Seventh District found the most recent attempt to limit employer intentional tort claims unconstitutional as well.

The current version of R.C. 2745.01 states that an employer is not liable for intentional tort “unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.” The statute further defines “substantially certain” as “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” The Seventh District explained that the Supreme Court has previously rejected such a definition of “substantially certain.” More importantly, the Seventh District determined that R.C. 2745.01 exceeds the legislative authority granted pursuant to Sections 34 and 35, Article II of the Ohio Constitution, which establish legislative power regarding labor regulations and workers’ compensation laws.

The Kiminski decision was intended to be in line with the Supreme Court of Ohio’s prior decisions in Brady v. Safety-Kleen Corp. and Johnson v. BP Chemicals, Inc. which held unconstitutional the two former attempts to limit employer intentional torts. The Seventh District relied heavily on the Ohio Supreme Court’s conclusions in Brady and Johnson that the legislature’s attempt to codify common law employer intentional tort impermissibly limited employers’ liability for intentional torts.

In Kiminski, the Seventh District found that the current version of R.C. 2745.01 similarly attempts to limit employers’ liability. The Seventh District found that the standard of proof an employee is required to meet is excessive because “substantial certainty” is also defined as “deliberate intent.” Thus, really the only way an employee can recover under the statute is if the employer acted with intent to cause the injury. The Seventh District recognized that the Supreme Court of Ohio has explicitly held that specific intent to injure is not required to find intentional misconduct. Thus, the statute is in conflict with Section 34, Article II because its excessive standard of proof does not further the comfort, health, safety and general welfare of employees. Further, the Seventh District determined that the legislature exceeded its authority in creating R.C. 2745.01 because Section 35, Article II grants legislative power to pass laws regarding harm occasioned within the employment relationship and employer intentional torts by definition occur outside the employment relationship. Accordingly, given the Supreme Court’s holdings regarding the prior versions of the statute and their similarities to the current R.C. 2745.01, the Seventh District concluded that the present R.C. 2745.01 is also unconstitutional.

The plaintiff also asserted that R.C. 2745.01 violates the due process clause of Article I, Section 16 of the Ohio Constitution. However, since the court found the statute unconstitutional based on Sections 34 and 35, Article II, it did not address the due process argument. Ultimately,

since the employer intentional tort statute was found unconstitutional, the Seventh District proceeded to analyze the plaintiff’s claim under the common law employer intentional tort standard as set forth by the Ohio Supreme Court in Fyffe v. Jeno’s Inc. The common law test requires that an employee show (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. Thus, the common law test for employer intentional tort is a lower burden that does not require that the employer have intent to cause the injury; rather, it requires that the employer had knowledge that harm is a “substantial certainty.”

The Seventh District Court of Appeals is the first court to rule on the constitutionality of the most recent version of R.C. 2745.01. Other Ohio District Courts may or may not follow suit and render similar decisions. The final word on this issue has not been written, as it is expected that Kiminski will be reviewed by the Supreme Court of Ohio.

IF you would like a full copy of the opinion, or if you have any other questions regarding employer intentional torts or workers’ compensation claims or employment practices liability, please feel free to contact one of our statewide Employment Practices Group members to discuss.