532 N.E.2d 753 (Ohio 1988), 87-2099, Mitchell v. Lawson Milk Co.

Docket Nº:87-2099.
Citation:532 N.E.2d 753, 40 Ohio St.3d 190
Opinion Judge:HERBERT R. BROWN, Justice. H. BROWN, J.
Party Name:MITCHELL, Admr., Appellee, v. LAWSON MILK COMPANY, Appellant.
Attorney:Matan & Smith, James D. Colner, Columbus, Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A. Bowman, Toledo, for appellee. Matan & Smith, James D. Colner, Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A. Bowman, for appellee., Smith & Schnacke Co., L.P.A., James J. Gilvary and Scott A. King, ...
Judge Panel:MOYER, C.J., and SWEENEY, LOCHER, HOLMES and WRIGHT, JJ., concur. DOUGLAS, J., concurs in the judgment and syllabus. DOUGLAS, Justice, concurring in judgment and syllabus.
Case Date:December 30, 1988
Court:Supreme Court of Ohio
 
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Page 753

532 N.E.2d 753 (Ohio 1988)

40 Ohio St.3d 190

MITCHELL, Admr., Appellee,

v.

LAWSON MILK COMPANY, Appellant.

No. 87-2099.

Supreme Court of Ohio.

December 30, 1988 [*]

Submitted Nov. 2, 1988.

Syllabus by the Court

A claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief

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unless the complaint alleges facts showing that the employer: (1) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer's act and, despite this knowledge, still proceeded. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489; Pariseau v. Wedge Products, Inc. [1988], 36 Ohio St.3d 124, 522 N.E.2d 511; and Kunkler v. Goodyear Tire & Rubber Co. [1988], 36 Ohio St.3d 135, 522 N.E.2d 477, construed.)

On January 16, 1985, Mary A. Mitchell was fatally shot during a robbery which occurred while she was working as a clerk in a Lawson Milk Company store. James L. Mitchell, administrator of her estate and appellee herein, filed a complaint in the Court of Common Pleas of Montgomery County on August 14, 1986. He alleged that Lawson had committed an intentional tort by failing to provide adequate security or training in handling violent situations. Lawson responded with a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). 1

The trial court granted the motion, holding that the complaint failed to state a claim of intentional tort under the retroactive application of R.C. 4121.80(G)(1), or under the "substantial certainty" test of Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 O.B.R. 246, 472 N.E.2d 1046.

The court of appeals concluded that the statute, effective August 22, 1986, could not be given retroactive effect consistent with Section 28, Article II of the Ohio Constitution. The court reversed the lower court's judgment [40 Ohio St.3d 191] on the basis that the complaint properly pled a claim of intentional tort under the standard set forth in Blankenship and Jones.

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

Matan & Smith, James D. Colner, Columbus, Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A. Bowman, Toledo, for appellee.

Smith & Schnacke Co., L.P.A., James J. Gilvary and Scott A. King, Dayton, for appellant.

HERBERT R. BROWN, Justice.

The central issue is whether the complaint sets forth a claim of intentional tort showing that appellee is entitled to relief sufficient to survive a Civ.R. 12(b)(6) motion to dismiss. For the reasons that follow, we hold that it does not.

A

Subsequent to the court of appeals' decision in the case herein, we announced a series of decisions involving allegations of intentional torts committed by employers and the applicability of R.C. 4121.80(G)(1) to such causes of action. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489; Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511; and Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 522 N.E.2d 477. We determined that Section 28, Article II of the Ohio Constitution precludes the retroactive application of R.C. 4121.80(G)(1) to intentional tort causes of action arising prior to August 22, 1986, the effective date of the statute. Kunkler, supra, at 138, 522 N.E.2d at 480; Van Fossen, supra, 36 Ohio St.3d at 109, 522 N.E.2d at 498. The cause of action in the case herein arose on or about January 16, 1985. Thus, we measure the sufficiency of appellee's claim of intentional tort against

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the standard first set forth in Blankenship and Jones and explained in Van Fossen, Pariseau and Kunkler.

B

In Van Fossen, supra, at paragraph five of the syllabus, and Kunkler, supra, we implicitly adopted, for purposes of defining an intentional tort in Ohio, the definition of "intent" contained in 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A ("Restatement"). That section states:

"The word 'intent' is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it."

We noted the difference between causes of action sounding in negligence, recklessness and intentional tort. Van Fossen, supra, at 114-117, 522 N.E.2d at 502-504...

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