Blankenship v. Cincinnati Milacron Chemicals, Inc.

Decision Date03 March 1982
Docket NumberNo. 81-402,81-402
Citation69 Ohio St.2d 608,433 N.E.2d 572,23 O.O.3d 504
Parties, 23 O.O.3d 504 BLANKENSHIP et al., Appellants, v. CINCINNATI MILACRON CHEMICALS, INC., et al., Appellees.
CourtOhio Supreme Court

Syllabus by the Court

An employee is not precluded by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741 from enforcing his common law remedies against his employer for an intentional tort.

On February 22, 1979, appellants, eight current or former employees of Cincinnati Milacron Chemicals, Inc. (hereinafter Milacron), and where appropriate, their spouses, instituted an action in the Court of Common Pleas of Hamilton County seeking compensatory and punitive damages against their employer (Milacron) and several individual fellow employees, appellees herein. 1 Appellants alleged in their original and amended complaints that they were, at all times relevant, employed by Milacron as were the individual appellee fellow servants named herein. Appellants further alleged that while they were stationed at Milacron's chemical manufacturing facility in Reading, Ohio, they were exposed to the fumes and otherwise noxious characteristics of certain chemicals 2 within the scope of their employment which "rendered (them) sick, poisoned, and chemically intoxicated, (and) causing them pain, discomfort, and emotional distress which will continue for the indefinite future and causing suffering and permanent disability."

In pertinent part, 3 appellants further alleged in their complaint that notwithstanding the knowledge of appellees that such conditions existed, the appellees " * * * failed to correct said conditions, failed to warn * * * (appellants)-employees of the dangers and conditions that existed and failed to report said conditions to the various state and federal agencies to which they were required to report by law." Appellants claimed that "(s)uch failure on the part of * * * (appellees) was intentional, malicious and in willful and wanton disregard of the health of * * * (appellants) and that "(a)s a direct and proximate result of this * * * failure, * * * (appellants) have been injured * * *."

Appellants also asserted that, "(n)otwithstanding the knowledge of * * * (appellees) that certain occupational diseases were being contracted, * * * (appellees) failed to warn (appellant)-employees and failed to provide medical examinations as required by law." It is further alleged that these omissions and commissions by appellees " * * * were intentional, malicious, and in willful and wanton disregard of their duty to protect the health of * * * (appellants)," and that as a direct and proximate cause of this conduct, appellants were injured. 4

It is undisputed that Milacron is a fully-covered, self-insured employer, in full compliance with all the requirements of the Ohio Workers' Compensation Act. R.C. 4123.01 et seq.

Subsequent to the filing of the original complaint and the amended complaint, appellees moved to dismiss the complaint pursuant to Civ.R. 12(B)(1) and (6). Citing Section 35, Article II of the Ohio Constitution, and R.C. 4123.74 and 4123.741, appellees asserted that the trial court lacked subject matter jurisdiction and that the complaint failed to state a cause of action upon which relief could be granted.

The trial court issued an order on October 5, 1980, which granted appellees' motion and dismissed the action with prejudice as to appellees on the ground that the action was barred by relevant sections of the Ohio Constitution and the Ohio Workers' Compensation Act which afforded an employer and his employees total immunity from civil suit. The trial court, being of the opinion that there was no just reason for delay, entered final judgment in favor of appellees on all claims. 5

This holding was appealed and subsequently affirmed by the Court of Appeals on January 14, 1980. In holding that appellees are immune from liability for intentional tortious conduct, the court reasoned that the purpose of Section 35, Article II of the Ohio Constitution, was to abolish civil actions by employees against complying employers for work-related injuries. The court further found that this provision, as implemented by R.C. 4123.74, means that a court lacks jurisdiction to entertain a civil action for damages against an employer where an employee seeks to circumvent the exclusive nature of the workers' compensation scheme by alleging intentional conduct.

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

Kondritzer, Gold & Frank Co., L.P.A., William E. Clements, Jerald D. Harris Co., L.P.A., and Jerald D. Harris, Cincinnati, for appellants.

Taft, Stettinius & Hollister and Gerald J. Rapien, Cincinnati, for appellees.


The sole issue raised in this appeal is whether the trial court properly granted appellees' motion to dismiss appellants' complaint on the grounds that an employee is barred by Section 35, Article II of the Ohio Constitution, and R.C. 4123.74 and 4123.741 from prosecuting an action at law for an intentional tort.

At the outset, it must be remembered that the appellants are appealing from an order granting a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6). In O'Brien v. University Community Tenants Union (1975), 42 Ohio St.2d 242, 327 N.E.2d 753, this court stated that "(i)n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6) ), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, followed.)" And, in Steffen v. General Telephone Co. (1978), 60 Ohio App.2d 144, 145, 395 N.E.2d 1346, it was stated that, in considering a motion which claims lack of jurisdiction over the subject matter (Civ.R. 12(B)(1) ), "a similar principle controls: * * * the question is whether the plaintiff has alleged any cause of action cognizable by the forum."

Thus, the purpose of this appeal is not to try the factual issues presented by this complaint, but rather to determine whether the facts alone are sufficient to withstand a motion based on Civ.R. 12(B)(1) and (6). After carefully reviewing the complaint and seriously considering the arguments presented, this court, for the reasons stated hereinafter, finds that the complaint in question is sufficient to withstand such a challenge.

The primary focus of the dispute between the parties centers upon the question of whether the Workers' Compensation Act (R.C. 4123.35 et seq.) is intended to cover an intentional tort committed by employers against their employees. Section 35, Article II of the Ohio Constitution, serves as a basis for legislative enactments in the area of workers' compensation by providing, in pertinent part:

"For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen's employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state, determining the terms and conditions upon which payment shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. * * * "

The constitutional mandate has been implemented by R.C. 4123.74 which provides:

"Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment * * * whether or not such injury, occupational disease (or) bodily condition * * * is compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code." (Emphasis added.) 6

Clearly, neither the relevant constitutional language nor the pertinent statutory language expressly extend the grant of immunity to actions alleging intentional tortious conduct by employers against their employees. The General Assembly, however, in enacting R.C. 4123.95, established a rule of construction which is clearly of assistance in determining the scope of employer immunity. This section provides that:

"Sections 4123.01 to 4123.94, inclusive, of the Revised Code, shall be liberally construed in favor of employees and the dependents of deceased employees."

It is with this requirement in mind that we address the language in R.C. 4123.74. The emphasized language in R.C. 4123.74 quoted above, as was noted in Delamotte v. Midland Ross (1978), 64 Ohio App.2d 159, 161, 411 N.E.2d 814, " * * * clearly limits the categories of injuries for which the employer is exempt from civil liability." By designating as compensable only those injuries " * * * received or contracted * * * in the course of or arising out of * * * employment * * *," the General Assembly has expressly limited the scope of compensability. In so doing, the General Assembly surely did not intend to remove all remedies from the employee whose injury is not compensable under the Act. 7 And, by its use of this phrase, the General Assembly has seemingly allowed the judiciary the freedom to determine what risks are incidental to employment in light of the humanitarian purposes which underlie the Act.

In this regard, this court further agrees with the Delamotte court that where an employee asserts in his complaint a claim for damages based on an intentional tort, " * * * the substance of the claim is not an 'injury * * * received or contracted by any employee in the course of or arising out of his...

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