Kunkler v. Goodyear Tire & Rubber Co., 87-425

• Citation: 522 N.E.2d 477,36 Ohio St.3d 135
• Decision Date: 13 April 1988
• Docket Number: No. 87-425,87-425
• Parties: KUNKLER et al., Appellees, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant.
• Court: United States State Supreme Court of Ohio

Page 135

36 Ohio St.3d 135

522 N.E.2d 477

KUNKLER et al., Appellees, v. GOODYEAR TIRE & RUBBER COMPANY, Appellant.

No. 87-425.

Supreme Court of Ohio.

April 13, 1988.

Syllabus by the Court

When an appeal has been commenced in the court of appeals but the court has not yet disposed of the case on its merits, the case is pending for the purpose of applying R.C. 4121.80.

The case before us is grounded upon allegations of intentional tort by employees against their employer. Plaintiffs-appellees, Albert Kunkler and Frank Carr, were injured while working at defendant-appellant, Goodyear Tire and Rubber Company, as a result of an explosion and fire which occurred on March 25, 1982. There is evidence that the cause of the explosion was the combination of dicumyl peroxide and carbon disulfide in the batch of the ingredients being mixed and heated in a machine known as Banbury No. 4. The mixture was to be used in manufacturing tires and other rubberproducts. The formula or "recipe" for the mixture and the composition of the ingredients were kept secret from the employees by Goodyear. The "recipe" in question here was apparently identified by Goodyear as Stock No. 33377.

Plaintiffs filed separate complaints in the Summit County Common Pleas Court alleging that their injuries were proximately caused by the intentional, malicious, and willful misconduct of Goodyear. Goodyear moved for an order consolidating the two cases. On December 9, 1985, the court granted leave to Goodyear to file a motion for summary judgment. The court found the motion well-taken and sustained it on the basis that no genuine issue of fact existed.

On February 13, 1986 plaintiffs appealed the dismissal and on January 7, 1987 the court of appeals reversed, finding a genuine issue of material fact upon the question of whether the injuries to appellees were the result of an intentional tort by Goodyear. The court based its finding upon the affidavit of George Tucker and deposition of James W. Strayhand.

Tucker swore that on three occasions prior to the March 25, 1982 explosion, one as late as the day before, he had experienced an explosion in Banbury No. 4 and had reported all three explosions to supervisor James Strayhand who told Tucker: "run the thing anyway." Strayhand testified that he received no such reports.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Hinton & Landi, James R. Hinton and Dean Konstand, Akron, for appellees.

Roetzel & Andress, Timothy J. Ochsenhirt and Jeffrey J. Casto, Akron, for appellant.

HERBERT R. BROWN, Justice.

Before deciding whether summary judgment was proper, we must determine whether the provisions of R.C. 4121.80 apply to the case at bar and, if so, whether the statute can operate retroactively without violating the Ohio Constitution.

I

R.C. 4121.80 was enacted to govern actions alleging intentional torts committed by employers against their employees. Such intentionally tortious conduct is not protected by the immunity from civil liability granted to employers by the Ohio Constitution and the Ohio Revised Code. ¹ Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, syllabus.

In deciding whether the legislature intended the provisions of the intentional tort claims statute (R.C. 4121.80) to govern the cause before us, we turn to the language of the statute.

Subsection (H) states:

"This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on the effective date of this section and all claims or actions filed on or after the effective date, notwithstanding any provisions of any prior statute or rule of law in this state." (Emphasis added.)

Appellant Goodyear argues that the case herein was "pending in any court" on August 22, 1986 (the effective date of R.C. 4121.80) because it was pending in the court of appeals from February 13, 1986 until January 7, 1987. We agree.

The phrase "pending in any court" is not defined in the statute nor elsewhere in the Workers' Compensation Act. In the absence of clear legislative intent to the contrary, words and phrases in a statute shall be read in context and construed according to their plain, ordinary meaning. Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 50 O.O.2d 198, 255 N.E.2d 262.

We concluded in State, ex rel. Cleveland Ry. Co. v. Atkinson (1941), 138 Ohio St. 157, 20 O.O. 162, 34 N.E.2d 233, that a "pending" proceeding includes a subsequent appeal. We adhere to the reasoning by which we reached that conclusion.

Accordingly, we hold that when an appeal has been commenced in the court of appeals but the court has not yet disposed of the case on its merits, the case is pending for the purpose of applying R.C. 4121.80.

II

Since the case was pending in the court of appeals on August 22, 1986 (the effective date of R.C. 4121.80), we must next decide whether the legislature can, without violating the Ohio Constitution, make the definition of intentional tort retroactive to actions which accrued prior to August 22, 1986.

Because R.C. 4121.80(H) expressly makes the statute retroactive, the statute must be scrutinized in light of Section 28, Article II of the Ohio Constitution, which provides in part: "The general assembly shall have no power to pass retroactive laws * * *."

This constitutional bar has been frequently interpreted by the courts in this state. It has been established that the proscription against retroactivity applies to laws affecting substantive rights but not to the procedural or remedial aspects of such laws. French v. Dwiggins (1984), 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827; Kilbreath v. Rudy (1968), 16 Ohio St.2d 70, 45 O.O.2d 370, 242 N.E.2d 658; State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537, 542, 8 O.O. 531, 534, 9 N.E.2d 505, 508. In making the distinction between substantive and remedial, we are guided by State, ex rel. Holdridge, v. Indus. Comm. (1967), 11 Ohio St.2d 175, 178, 40 O.O.2d 162, 164, 228 N.E.2d 621, 623:

" * * * [S]ubstantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress."

Subsection (G)(1) of R.C. 4121.80 defines the elements of an intentional tort committed by an employer upon an employee. It provides in part:

"(1) 'Intentional tort' is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.

" * * *

" 'Substantially certain' means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death."

This is substantive law. It defines the cause of action. It purports to govern the rights and duties of the employee and the employer.

Appellant Goodyear implies in its reply brief that subsection (G)(1) of the new statute merely reiterates the common-law definition of an intentional tort expressed in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, and thus does not impair or restrict the common-law intentional tort cause of action. The argument is specious. If the statute works no change in the common-law definition of intentional tort, the exercise in determining whether the statute applies to this case would be pointless.

Since the new statute purports to create rights, duties and obligations, it is (to that extent) substantive law. State, ex rel. Holdridge, supra; State, ex rel. Slaughter, v. Indus. Comm., supra.

Therefore, we hold that R.C. 4121.80(G)(1) does not apply to intentional tort causes of action arising prior to August 22, 1986, the effective date of the statute. Accordingly, whether summary judgment was proper in this case must be resolved under the law as it existed prior to the enactment of R.C. 4121.80. In view of this holding, we need not analyze the extent of the change to the definition of intentional tort (as between employees and employers) that has been wrought by R.C. 4121.80(G)(1).

III

In deciding whether the trial court correctly granted summary judgment to Goodyear, we must follow Civ.R. 56 ² and view the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 66 O.O.2d 311, 309 N.E.2d 924. Further, the inferences to be drawn from the underlying facts contained in depositions, affidavits, and exhibits must be construed in the opposing party's favor. When so construed, the motion must be overruled if reasonable minds could find for the party opposing the motion. Hounshell v. American States Ins. Co. (1981), 67 Ohio St.2d 427, 433, 21 O.O.3d 267, 271, 424 N.E.2d 311, 315.

The standard for establishing an intentional tort in an employment situation has been addressed in Jones, supra, and Blankenship, supra. In the aftermath of those decisions, we see that some confusion remains, within the bench and bar. This confusion manifests itself in a failure to distinguish intentionality from recklessness and negligence, and from finding intentional tort in facts which show only recklessness.

To establish an intentional tort there must be proof beyond that required to prove negligence and beyond that to prove recklessness. It is in this context that the facts should be examined to determine whether an employer has acted despite a known threat that harm to an employee is substantially certain to occur. Comment b to Section 8A of 1 Restatement of the Law 2d, Torts (1965) 15, expresses the differences among negligence, recklessness and intentional tort and addresses the precise point at issue when it states:

" * * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As...