584 N.E.2d 729 (Ohio 1992), 90-2149, Tulloh v. Goodyear Atomic Corp.

Docket Nº:90-2149.
Citation:584 N.E.2d 729, 62 Ohio St.3d 541
Opinion Judge:DEAN STRAUSBAUGH, J., of the Tenth Appellate District, sitting for HOLMES, J. MOYER, C.J.
Party Name:TULLOH, Appellant, v. GOODYEAR ATOMIC CORPORATION, et al., Appellees.
Attorney:Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, Waite, Schneider, Bayless & Chesley Co., L.P.A., and Paul DeMarco, Cincinnati, for appellant., Vorys, Sater, Seymour & Pease, Robert E. Tait and James P. Kennedy, Columbus, for appellees., Ronald D. Major, Cinci...
Judge Panel:STRAUSBAUGH, WRIGHT and SHAW, JJ., concur. SWEENEY, DOUGLAS and RESNICK, JJ., concur in part and dissent in part. DOUGLAS, Justice, concurring in part and dissenting in part. SWEENEY and RESNICK, JJ., concur in the foregoing dissenting opinion.
Case Date:February 12, 1992
Court:Supreme Court of Ohio
 
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Page 729

584 N.E.2d 729 (Ohio 1992)

62 Ohio St.3d 541

TULLOH, Appellant,

v.

GOODYEAR ATOMIC CORPORATION, et al., Appellees.

No. 90-2149.

Supreme Court of Ohio.

February 12, 1992 [*]

Page 730

Submitted November 20, 1991.

Opinion announced Feb. 12, 1992.

SYLLABUS BY THE COURT

Absent statutory authority, there is no common-law basis in tort for a wrongful discharge claim.

Michael H. Tulloh, appellant, worked at the Portsmouth Gaseous Diffusion Plant as a uranium materials handler from 1976 through 1986. The plant was operated by appellee Goodyear Atomic Corporation ("Goodyear") from 1953 through November 1986. In November 1986, appellee Martin Marietta Energy Systems, Inc. ("Marietta") assumed operations of the plant and has continued to operate the plant since that date. Tulloh alleges that while working at the plant he was exposed to radioactive dust, chips and fumes, causing him injuries including sinusitis, pharyngitis, laryngitis, abdominal pain, cramping, vomiting, nausea and extreme upper respiratory and gastrointestinal dysfunction. He alleges that both employers knew a health hazard existed from his exposure to the radioactive materials. Tulloh also alleges that he had expressed his concern about the safety of the work environment to Marietta. He contends that he made demands that the plant be operated in a manner consistent with statutory, regulatory and societal obligations. In November 1986, Tulloh was terminated by Marietta.

On February 19, 1988, Tulloh filed a complaint in the Pike County Common Pleas Court, alleging intentional tort and wrongful termination. Tulloh bases his intentional tort complaint on his alleged intentional and willful continued exposure to health hazards in the work environment by both his employers despite the fact that appellees knew a substantial certainty of harm

Page 731

to Tulloh existed. Appellant also asserts that his wrongful discharge claim is based in tort because he was fired for demanding a safer work environment. The trial [62 Ohio St.3d 542] court dismissed the intentional tort count for failure to state a claim and dismissed the wrongful termination count for lack of subject matter jurisdiction because the claim was preempted by Section 301 of the Labor-Management Relations Act, Section 185, Title 29, U.S.Code. The court of appeals affirmed the trial court's ruling on the intentional tort claim, holding that the claim failed because there was no showing that appellees intended for appellant to be injured or that the injury was substantially certain to occur. The court of appeals also held that there is no tort basis for a wrongful discharge claim, but reversed dismissal of the count, finding that the complaint sufficiently alleged a claim for breach of Tulloh's employment contract.

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

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, Waite, Schneider, Bayless & Chesley Co., L.P.A., and Paul DeMarco, Cincinnati, for appellant.

Vorys, Sater, Seymour & Pease, Robert E. Tait and James P. Kennedy, Columbus, for appellees.

Ronald D. Major, Cincinnati, urging reversal in part, for amicus curiae, Ohio Academy of Trial Lawyers.

MOYER, Chief Justice.

This case presents two issues: (1) whether the trial court erred in granting appellees' Civ.R. 12(B)(6) motion to dismiss appellant's claim for intentional tort; and (2) whether the trial court erred in granting appellees' Civ.R. 12(B)(6) motion to dismiss appellant's allegation of wrongful discharge. For the following reasons, we hold that appellees' Civ.R. 12(B)(6) motion was improperly granted on both counts. We therefore reverse the judgment of the court of appeals regarding the intentional tort claim and affirm its judgment regarding the wrongful discharge claim.

I

Intentional Tort

In his complaint, appellant stated:

"8. Plaintiff was exposed to hazardous radioactive dust, chips and fumes due to his position as a uranium materials handle [sic ] for Defendants.

"9. Defendants failed to exercise their duties to establish, maintain and control health and safety standards at the Plant. [62 Ohio St.3d 543]

"10. Defendant Goodyear concealed critical information and knowledge concerning the injurious effect exposure to the uranium materials being processed at the...

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