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Can an employee still bring an intentional tort against my company?

Friday, February 15, 2013

The short answer is yes. Effective April 7, 2005, Ohio adopted a new Intentional Tort Reform Statute, R.C. 2745.01.   In order to be successful, the plaintiff must prove that an employer acted with specific intent or deliberate intent to cause injury and that injury was substantially certain to occur. The “or” in the current statute replaced it’s predecessors “and.”

On March 24, 2010 the Supreme Court issued a decision in Kaminski v. Metal and Wire Prods. Co. 125 Oh St. 3d. 250, upholding the constitutionality of the statute. While the Supreme Court did not eliminate the common law cause of action, it did limit it. It was thought in the wake of the decision in Kaminski, that intentional tort law would only apply to the following scenarios and if satisfied would create a rebuttable presumption:

  1. Deliberate Removal of an equipment safety guard. R.C. 2745.01(C)
  2. Deliberate Misrepresentation of a toxic or hazardous substance. R.C. 2745.01(C)

However, on June 20, 2012 the Supreme Court of Ohio has heard yet another challenge to the intentional tort statute. Claimant Houdek was injured when he was using a scissor lift to tag inventory. Houdek was crushed by a forklift operator traveling at the maximum speed as required by the employer. Houdek suffered the loss of his leg as a result of the injury. The Trial Court granted a Motion for Summary Judgment against Houdek.

The 8th District Court of Appeals reversed the decision abandoning the Supreme Court’s reasoning and holdings in both Kaminski and Stettler. In an interesting and tortured analysis, the 8th District Court found that “substantially certain” and “deliberate intent to injure” could not mean the same thing and therefore, were “scrivener’s errors.” The Court then extrapolated that intent to injure can be proven by what a “reasonable, prudent employer would believe.”

This attempt to undermine the legislative process will ultimately be determined by the Ohio Supreme Court. Should the Ohio Supreme Court adopt the findings of the 8th District Court of Appeals, the landscape of intentional torts as we have come to understand it will be forever changed.

Stay tuned for updates!

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