Edward Blankenship v. Cincinnati Milacron Chemicals, Inc., 81-LW-2840

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtPALMER, J.
PartiesEDWARD BLANKENSHIP, ET AL., Plaintiffs-Appellants, v. CINCINNATI MILACRON CHEMICALS, INC., ET AL., Defendants-Appellees.
Docket Number81-LW-2840,C-790768
Decision Date14 January 1981

EDWARD BLANKENSHIP, ET AL., Plaintiffs-Appellants,


No. C-790768.

81-LW-2840 (1st)

Court of Appeals of Ohio, First District, Hamilton

January 14, 1981


Mr. Jerald D. Harris, 711 Atlas Bank Building, 524 Walnut Street, Cincinnati, Ohio 45202, for Plaintiffs-Appellants.

Messrs. Taft, Stettinius & Hollister, Gerald J. Rapien of counsel, 600 Dixie Terminal Building, Cincinnati, Ohio 45202, for Defendants-Appellees.



The plaintiffs-appellants, eight employees and former employees of defendant Cincinnati Milacron Chemicals, Inc. (Milacron) and their wives, instituted this tort action for compensatory and punitive damages against Milacron, several fellow employees and a number of unidentified chemical manufacturers and distributors on February 22, 1979. On March 26, 1979, Milacron and the individual defendants moved to dismiss the complaint pursuant to Civ. R. 12 (B)(1) and (6). Memoranda were submitted by both parties. Thereafter, plaintiffs amended the complaint to specifically identify the chemical manufacturers and distributors. Defendants again moved to dismiss the complaint on identical grounds: that the trial court lacked subject matter jurisdiction and that the plaintiffs had failed to state a cause of action upon which relief could be granted. On October 5, 1980, the trial court issued an order granting the motion and dismissing the action with prejudice as to Milacron and the fellow employees on the ground that the action was barred by relevant sections of the Ohio Constitution and the Ohio Workers' Compensation Act. (T.d. 24.) Plaintiffs' action against the chemical manufacturers and distributors is still pending. On appeal, plaintiffs contend in their single assignment of error that the trial court was incorrect in dismissing their complaint.

The employment relationship between plaintiffs and Milacron is not disputed, nor is it disputed that the individual defendant fellow servants were, at all times relevant, also employed by Milacron. Plaintiffs, stationed by Milacron at its Reading, Ohio, chemical manufacturing facility, contended that through their work they were exposed to allegedly harmful chemicals and as a result suffered sickness, pain and discomfort due to "chemical intoxication." (T.d. 1, 15.) Significantly, plaintiffs' contended in the original and amended complaints that they ". . . were exposed to the fumes and otherwise noxious characteristics of MC, SnCl, TMA and tin within the scope of their employment." Id. (Emphasis added.) Plaintiffs have never disputed the fact that exposure to such toxic substances was an experience unique to their working environment; the gravaman of plaintiffs complaint concerns the manner in which they were exposed.

Three of the six claims asserted by the plaintiffs are directed at Milacron and the fellow employees. In counts four and five, the plaintiffs allege that the defendants ". . . intentionally, maliciously, and in willful and wanton disregard" of the employees' health, breached a duty to warn of and correct health hazards existing at the Reading plant, failed to warn of "occupational diseases," and failed to provide periodic medical examinations. In the sixth count, the wives of the employees seek recovery against Milacron and their husbands' fellow employees for loss of consortium. Id.

Plaintiffs have never disputed, either in the trial court or before this Court, 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. Nor have plaintiffs alleged that "chemical intoxication" is not a compensable injury under the Act. In fact, plaintiffs are currently receiving Workers' Compensation benefits or actively pursuing claims for benefits before the Industrial Commission of Ohio. Plaintiffs' sole contention is that where employees allege facts which give rise to an action at common law for intentional torts, the employer may not clothe itself with the cloak of immunity provided for complying employers and fellow employees in R.C. 4123.74 and R.C. 4123.741. To permit this, argue the plaintiffs, is tantamount to granting employers a license to inflict injuries upon employees intentionally and with the knowledge that personal liability may not be imposed as a result thereof, a situation neither contemplated nor intended by the Act and otherwise contrary to public interest. Accordingly, plaintiffs challenge the trial court's decision that R.C. 4123.74 and R.C. 4123.741 provide the defendants immunity from liability for the conduct alleged in the complaint as an improper and unjust interpretation of the law. For the reasons stated below, we disagree.

Article II, Section 35 of the Ohio Constitution serves as the fundament 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 therewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease. (Emphasis added.)

This section, enacted in 1923, confers upon the Legislature the power to devise a compensation scheme under these terms and to delegate the administration of that scheme to the Bureau of Workers' Compensation and the Industrial Commission.®1¯ See Hall v. Industrial Comm'n (1936), 131 Ohio St. 416, 3 N.E.2d 367. In construing this section, the Supreme Court of Ohio has stated:

Footnote 1 . For a complete history of Art. II, Section 35 and the legislation passed pursuant thereto, see Bevis v. Armco Steel Corp. (1951), 156 Ohio St. 295, 102 N.E.2d 444, and Bevis v. Armco Steel Corp. (1949), 86 Ohio App. 525, 93 N.E.2d 33, appeal dismissed (1950), 153 Ohio St. 366, 91 N.E.2d 479, cert. denied, 340 U.S. 810.

By this amendment, the right of the workman (or in the case of death his legal representative) to maintain an action at law was extinguished even though the injury was caused by a complying employer's violation of a lawful requirement; . . . regardless of how the injury occurred, the rights of the workman (or in the case of death his legal representative) were determined by the Industrial Commission under the compensation act Thereafter the courts were without jurisdiction to entertain an action for damages . . . by or on behalf of a workman against his complying employer.

State, ex rel. Engle...

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