Brady v. Safety-Kleen Corp.

• Decision Date: 27 August 1991
• Docket Number: SAFETY-KLEEN,No. 90-166,90-166
• Citation: 61 Ohio St.3d 624,576 N.E.2d 722
• Parties: , 60 USLW 2223 BRADY et al. v.CORPORATION et al.
• Court: Ohio Supreme Court

Page 624

61 Ohio St.3d 624

576 N.E.2d 722, 60 USLW 2223

BRADY et al. v. SAFETY-KLEEN CORPORATION et al.

No. 90-166.

Supreme Court of Ohio.

Submitted March 20, 1991.

Decided Aug. 27, 1991.

SYLLABUS BY THE COURT

1. A cause of action brought by an employee alleging intentional tort by the employer in the workplace is not preempted by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741. While such cause of action contemplates redress of tortious conduct that occurs during the course of employment, an intentional tort alleged in this context necessarily occurs outside the employment relationship. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [1 982], 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, approved and followed.)

2. R.C. 4121.80 exceeds and conflicts with the legislative authority granted to the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Co nstitution, and is unconstitutional in toto.

In September 1983, petitioner Mike O. Brady began working for respondent Safety-Kleen Corporation as a truck driver. Petitioner's duties included, inter alia, the hauling of used and recycled mineral spirits, perchloroethylene (a dry cleaning agent), and other similar hazardous materials to and from respondent's recycling facility in Hebron, Ohio.

Shortly after midnight on July 24, 1987, petitioner and several co-workers were in two trucks transporting used perchloroethylene through Pennsylvania en route to the Hebron facility when the truck traveling in front of petitioner's truck had a spill of perchloroethylene that splashed on the windshield of petitioner's truck. Petitioner and his co-workers then attempted to right the containers that had spilled. Thereafter, petitioner experienced dizziness, shortness of breath and other symptoms. Petitioner claims he was exposed to phosgene gas which was produced when the perchloroethylene was heated upon contact with the exhaust manifold of his truck. Subsequently, petitioner was diagnosed as having progressive fibrosis of the lungs, and a restrictive lung disease precipitated by scarring within his lungs. Petitioner's fibrosis was medically determined to be a direct result of his exposure to phosgene gas on July 24, 1987.

On December 30, 1987, petitioner and his spouse, Brenda J. Brady, filed a complaint in the United States District Court, Southern District of Ohio, Eastern Division, naming respondent as defendant. In their complaint, petitioners alleged, inter alia, that the injuries sustained were a direct and proximate result of respondent's intentionally tortious conduct. Respondent answered and denied liability, and subsequently filed a counterclaim for an alleged loan made to petitioner which was unpaid.

On October 20, 1988, respondent filed a motion for judgment on the pleadings, claiming that it was immune from liability under Ohio's workers' compensation provisions. The trial court overruled the motion and found that the complaint set forth a properly pleaded intentional tort cause of action under R.C. 4121.80.

Petitioners then filed an amended complaint on December 20, 1988 requesting a jury trial. Respondent filed a motion to strike the claim for damages and jury trial with regard to the intentional tort claim, on the grounds that R.C. 4121.80 expressly foreclosed any judicial determination of damages or a jury trial. In response, petitioners asserted that R.C. 4121.80 violated their constitutional right to a trial by jury, as well as their right to equal protection under the law. In a memorandum and order dated April 21, 1989, 710 F.Supp. 684, the trial court held that R.C. 4121.80 is constitutional. Respondent thereafter filed a motion for summary judgment requesting that the intentional tort claim be dismissed based on insufficient evidence of injurious intent, and a dismissal of Mrs. Brady's claim for a loss of consortium.

On October 10, 1989, the trial court, sua sponte, ordered that the parties file simultaneous briefs on the issues of whether the court had proper jurisdiction of the action and whether the court could properly certify questions to the Ohio Supreme Court concerning the constitutionality of R.C. 4121.80.

Upon reviewing the briefs of the parties, the trial court issued an order reiterating its prior holding that R.C. 4121.80 is constitutional, that the real party defendant in interest would be the state of Ohio, as custodian of the Intentional Tort Fund, and that therefore federal diversity jurisdiction no longer existed in this case. Nevertheless, the trial court certified the cause to this court to determine whether R.C. 4121.80 is unconstitutional in whole or in part under Ohio law.

The cause is now before this court pursuant to Rule XVI of the Supreme Court Rules of Practice.

Frank A. Ray Co., L.P.A., Frank A. Ray, Columbus, Piacentino & Piacentino and C. Michael Piacentino, Marion, for petitioners.

Schottenstein, Zox & Dunn, James E. Davidson, Robert D. Weisman and John P. Gilligan, Columbus, for respondent.

Lee I. Fisher, Atty. Gen., Jeffery W. Clark and Dennis J. Hufstader, Columbus, for intervenor respondent Indus. Com'n of Ohio.

Murray & Murray Co., L.P.A., Thomas J. Murray, W. Patrick Murray, Steven C. Bechtel and Nancy L. Ogden, Sandusky, urging unconstitutionality for amici curiae, Ohio Academy of Trial Lawyers.

Stewart Jaffy & Associates Co., L.P.A., and Stewart R. Jaffy, Columbus, urging unconstitutionality for amicus curiae, Ohio AFL-CIO and Ohio United Auto Workers.

Squire, Sanders & Dempsey, Preston J. Garvin, Mark S. Floyd and Martin Harris, Cleveland, urging constitutionality for amicus curiae, Ohio Chamber of Commerce.

Dinsmore & Shohl, George B. Wilkinson, Joan M. Verchot and Joseph L. Sallee, Cincinnati, urging constitutionality for amici curiae, Dover Corp. and Johnson & Hardin Co.

Petro, Rademaker, Matty & McClelland, Robert C. McClelland, Dennis A. Rademaker, Eugene P. Whetzel and Anne M. Wilhelm, Cleveland, urging constitutionality for amicus curiae, Ohio Manufacturers' Ass'n.

Vorys, Sater, Seymour & Pease, Robert A. Minor and Robin R. Obetz, Columbus, urging constitutionality for amici curiae, Ohio Farm Bureau and Ohio Self-Insurers' Ass'n.

Dunlevey, Mahan & Furry, Gary W. Auman, Steven H. Ward and Theresa M. Muhic, Dayton, urging constitutionality for amici curiae, Armco Steel Co., L.P., Dayton Power & Light Co., Gayston Corp., Super Valu Stores, Inc., Sorg Paper Co., and Dayton Walther Corp. SWEENEY, Justice.

The precise issue before us on certification from the federal district court is whether R.C. 4121.80 ¹ is unconstitutional in whole or in part under the Ohio Constitution. For the reasons that follow, we hold that R.C. 4121.80 exceeds the scope of legislative authority granted to the General Assembly under the Ohio Constitution, and is therefore unconstitutional in toto.

I

For some thirteen years following the 1911 enactment of the workers' compensation system, Ohio specifically excepted injuries arising from an employer's "willful act" from the general grant of employer common-law immunity. See 102 Ohio Laws 524, 529; 103 Ohio Laws 72, 84. ² While not formally stricken until 1931 (114 Ohio Laws 26, 39), the exception was "repealed by implication" when Section 35, Article II of the Ohio Constitution was amended in 1924. Mabley & Carew Co. v. Lee (1934), 129 Ohio St. 69, 1 O.O. 366, 193 N.E. 745, overruled on other grounds in Triff v. Natl. Bronze & Aluminum Foundry Co. (1939), 135 Ohio St. 191, 14 O.O. 48, 20 N.E.2d 232.

Section 35, Article II of the Ohio Constitution added the following emphasized language, and provides in relevant 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 premiums 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." ³ (Emphasis added.) 110 Ohio Laws 631.

In Triff, supra, this court detected a gap in the concept of workers' compensation exclusivity and permitted the common-law action of an employee whose employer negligently inflicted his occupational disease. Almost immediately thereafter, the legislature responded to the Triff holding by amending G.C. 1465-70 to read:

"Employers who comply * * * shall not be liable to respond in damages at common law or by statute, for any injury, disease, or bodily condition, whether such injury, disease or bodily condition is compensable under this act or not * * *." (Emphasis added.) 118 Ohio Laws 422, 426.

Harsh results from the statutory amendment soon followed. Prior to the enactment of the foregoing statute, a common-law action was available wherever an injury did not fall within the purview of the Workers' Compensation Act. After the amendment, however, a common-law action was totally foreclosed even if the work-related injury was not compensable. Thus, some claimants were left without any redress whatsoever even in cases of clearly egregious employer behavior. See, e.g., Bevis v. Armco Steel Corp. (1951), 156 Ohio St. 295, 46 O.O. 172, 102 N.E.2d 444 (no remedy permitted where the employer knowingly concealed from the employee his progressive occupational disease).

In apparent response to such decisions, the Workers' Compensation Act was amended in 1959, and R.C. 4123.74 (128 Ohio Laws 1334) was enacted which provided in relevant part:

"Employers who comply with section 4123.35 of the Revised Code shall not...