Ohio Employer Intentional Tort Claims
On March 23, 2010, the Ohio Supreme Court issued a pair of opinions holding that the Ohio General Assembly's 2005 statute that reformed Ohio "employer intentional tort" claims was constitutional and enforceable. The 2005 state law, Ohio Revised Code ? 2745.01, limits the ability of workers who are injured on the job to sue their employers for a "employer intentional tort" in addition to receiving state workers' compensation benefits. The challenged statute requires that workers asserting intentional tort claims against their employer must prove that, in committing the acts or omissions that resulted in a worker's injuries, the employer acted "with a deliberate intent to cause injury." The 2005 statute makes it much more difficult for an injured employee to prove an employer intentional tort claim, because before the statute's enactment, all an employee had to prove was that a workplace injury was merely "substantially certain" to occur, which he or she could do through a variety of methods that did not require actual "intent to injury" on the part of the employer. The 2005 statute greatly restricted the prior law, stating that "the employer shall not be liable 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." O.R.C. ? 2745.01(A). Although the statute incorporated the "substantially certain" test, it then defined the phase "substantially certain" to mean "that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." O.R.C. ? 2745.01(B). Thus, under the 2005 statute, an injured employee cannot succeed on its intentional tort claim against his or her employer without proving actual, deliberate intent to cause an injury. The Supreme Court's opinions are notable because the Court had for many years rejected multiple previous attempts by the General Assembly to restrict the scope of employer intentional tort claims, even refusing to accept the concept that a specific intent to injure is necessary to a finding of intentional misconduct. However, in the opinions issued on March 23, 2010, the Court agreed that the 2005 statute was in fact constitutional and enforceable. In doing so, the Court rejected the arguments made by the employees that the 2005 statute violated Section 34 or 35 of Article II of the Ohio Constitution, which authorize the General Assembly to enact statutes that provide for "the comfort, health, safety and general welfare of all employees," and to adopt laws facilitating the resolution of employment-related injury claims through the Ohio Workers' Compensation program. The Court also rejected the employees' arguments that the 2005 statute violated the provisions of the Ohio Constitution that guarantee trial by jury, a remedy for damages, open courts, due process, equal protection of the laws or the separation of powers between the legislative and judicial branches of government. In reaching its conclusion that the 2005 statute was constitutional, the Court relied in part on the statute's legislative history, explaining that it "embodies the General Assembly's intent to significantly curtail an employee's access to common-law damages for what we will call a 'substantially certain' employer intentional tort." The Court stated that "the legislative branch of government is 'the ultimate arbiter of public policy'" and that "the legislature is entrusted with the power to continually refine Ohio's laws to meet the needs of our citizens." Thus, the Court wrote that "[i]t is not the role of the courts to second-guess the General Assembly's policy choices," including policy choices which "alter, revise, modify, or abolish the common law." For employers, the decision clarifies that an injured employee who wishes to sue his or her employer for an intentional employer tort must prove either that the employer acted "with the intent to injure another," or that the employer acted "with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." However, it should also be noted that the 2005 statute also created a rebuttable presumption that an employer intended to injure an employee if an injury or an occupational disease or condition occurs as a direct result of the "deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance." O.R.C. ? 2745.01(C). Thus, employers must be careful to not remove equipment safety guards or to deliberately misrepresent the nature of a toxic or hazardous substance, or they might find that the 2005 statute does them more harm than good.