Gross v. Kenton Structural & Ornamental Ironworks

• Decision Date: 16 February 1984
• Docket Number: No. C-1-82-1074.,C-1-82-1074.
• Citation: 581 F. Supp. 390
• Parties: Christine GROSS, Administratrix of the Estate of Linuel Gross, Deceased, Plaintiff, v. KENTON STRUCTURAL AND ORNAMENTAL IRONWORKS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

581 F. Supp. 390

Christine GROSS, Administratrix of the Estate of Linuel Gross, Deceased, Plaintiff, v. KENTON STRUCTURAL AND ORNAMENTAL IRONWORKS, INC., et al., Defendants.

No. C-1-82-1074.

United States District Court, S.D. Ohio, W.D.

February 16, 1984.

Stephen T. MacConnell, Cincinnati, Ohio, for plaintiff.

Edward J. Utz, Cincinnati, Ohio, for Kenton Structural and Ornamental Ironworks, Inc.

Gary L. Herfel, Cincinnati, Ohio, for Gartner, Burdick, Bauer-Nilsen.

C.J. DeMichelis, Cincinnati, Ohio, for Korda Engineering Co.

Stephen A. Bailey, Cincinnati, Ohio, for Monarch Const. Co.

OPINION AND ORDER

SPIEGEL, District Judge:

This matter is before the Court on a motion for summary judgment filed by defendant Monarch Construction Company (doc. 33), plaintiff's memorandum in opposition (doc. 43), and defendant's reply (doc. 49). Also before the Court is the motion for summary judgment filed by Gartner, Burdick, Bauer-Nilsen, Inc. (doc. 37), plaintiff's memorandum in opposition (doc. 44) and defendant's reply (doc. 50). The motions present two legal issues. For reasons to be discussed, we find that a plaintiff who makes a claim for and accepts workers' compensation benefits is not barred from proceeding with a common law action against her or her decedent's employer for intentional tort. Second, we find that Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), does not require that a plaintiff prove that an employer acted with an actual intent to harm an employee. In addition to these two legal conclusions, we find that there are several genuine issues of material fact. Accordingly, we conclude that both motions for summary judgment must be denied.

I. Introduction

This case arises out of the death of Linuel Gross, plaintiff's husband. According to the complaint, Mr. Gross, a construction worker employed by defendant Monarch Construction Company (Monarch), was crushed to death when a steel staircase collapsed on him at the construction site of the Sheraton Springdale Hotel in Hamilton County in October, 1980. The defendant Gartner, Burdick, Bauer-Nilson, Inc. (Gartner) was the architect for the Sheraton Springdale Hotel.

The narrow question which we must decide on a motion for summary judgment is whether there is "no genuine issue as to any material fact and therefore that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The moving party "has the burden of showing conclusively that there exists no genuine issue as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.1979) (emphasis original).

II. Monarch Construction Company

Plaintiff alleges a cause of action against her decedent's employer under Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 433 N.E.2d 572 (1982). She alleges that although it was aware that the staircase was in a dangerous and defective condition Monarch failed to correct that condition. Plaintiff further alleges that Monarch directed her decedent to work under the staircase, thereby intentionally disregarding Mr. Gross's safety. In addition, plaintiff maintains that Monarch's failure to correct a known dangerous condition amounts to willful, wanton and intentional malicious conduct.

The defendant Monarch first asserts that it is entitled to judgment with respect to plaintiff's claim and defendants' cross-claims because the undisputed evidence demonstrates that the plaintiff and co-defendants have failed to present any evidence of intentional activity by Monarch which would make Monarch liable under Blankenship. Defendant further asserts that plaintiff's acceptance of benefits under Ohio Workers' Compensation laws bars her from proceeding against her decedent's employer. We will consider this latter issue first, for if defendant is correct then there is no need to address the first aspect of the motion.

A. Relationship between Blankenship actions and the receipt of workers' compensation benefits.

It is undisputed that a workers' compensation claim was filed on behalf of plaintiff and decedent's surviving children and that the claim was recognized by the Ohio Industrial Commission. The issue, therefore, is whether filing for and accepting workers' compensation benefits bars a common law cause of action under Blankenship.

The Ohio Supreme Court has not considered this precise issue. Nor have we located any state appellate court rulings on the issue. The parties have cited five pertinent decisions by Courts of Common Pleas. Our task is to determine what the Ohio Supreme Court might do if it were faced with this question. Harris Corporation v. Comair, Inc., 712 F.2d 1069, 1072 (6th Cir. 1983). Although we must give "proper regard" to the Common Pleas Court rulings, we are not bound by those rulings. Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782-1783, 18 L.Ed.2d 886 (1967).

The general rule in Ohio is that an employee who receives workers' compensation benefits may not also recover damages for the same injury in a lawsuit against his employer. Ohio Constitution, Art. II, Sec. 35; O.R.C. § 4123.74. However, the Supreme Court of Ohio recognized an exception to the exclusive remedy rule, holding that the immunity granted to employers under the workers' compensation laws does not extend to intentional torts. Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 433 N.E.2d 572 (1982). This decision was reaffirmed in Nayman v. Kilbane, 1 Ohio St.3d 269, 439 N.E.2d 888 (1982).

Defendant refers us to the reasoning of Blankenship:

Since an employer's intentional conduct does not arise out of employment, R.C. § 4123.74 does not bestow upon employers immunity from civil liability for their intentional torts.

69 Ohio St.2d at 613, 433 N.E.2d 572. Defendant argues that Blankenship clearly distinguishes between injuries arising outside of employment (that is, those resulting from the employer's intentional tortious conduct) and injuries arising out of employment (that is, those resulting from accidents or an employer's negligence). As defendant reads Blankenship, workers' compensation is the exclusive remedy for the latter type of injury and a common law action based upon an intentional tort is the exclusive remedy for the first type of injury. Defendant concludes that filing for and accepting workers' compensation benefits amounts to an election of remedies that bars a Blankenship action against an employer. In other words, defendant maintains that when one files a workers' compensation claim, one admits that the injury arose out of employment. This "admission," in defendant's eyes, bars the claimant from then seeking damages through a common law action against the employer.

On at least four occasions since the Blankenship decision Ohio Courts of Common Pleas have held that an injured employee who accepts workers' compensation benefits is estopped from bringing an action for damages against the employer, based upon intentional tort. Brady v. The Gulf Oil Company, Case No. A8208211 (CCP Hamilton Cty., Oct. 14, 1983); Walker v. Mid-States Terminal, Case No. 80-3024 (CCP Lucas Cty., July 25, 1983); Hunter v. Litton Industries, Case No. 82CV-03-1608 (CCP Franklin Cty., April 29, 1983); Varnes v. Willis Day Moving & Storage Company, Case No. CI82-1949 (CCP Lucas Cty., March 31, 1983). All four decisions are based, at least in part, upon Blankenship. The reasoning of Judge McQuaid is typical:

Additionally, since the Supreme Court has found that an employee injured by the intentional, tortious conduct of the employer is not an injury received in the course of and arising out of the worker's employment and to be compensable an injury must be received in the course of, and arise out of, the injured worker's employment O.R.C. § 4123.01(C), the two types of injuries are mutually exclusive. Therefore, it is not possible for an injured employee to collect workers' compensation benefits for an injury that results from his employer's intentional tortious conduct.

Thus, since the plaintiff filed for benefits and it was determined by the Commission that the plaintiff had sustained injuries arising out of and in the course of his employment and granted benefits to the plaintiff, compensation is limited to the benefits provided by workers' compensation and he cannot file an action against the employer asserting that his injuries were caused by the defendant's intentional tortious conduct.

Varnes, supra (citations omitted). The reasoning of the other cases is similar. See, e.g., Hunter, supra. ("Plaintiff cannot be allowed to voluntarily partake of Workers' Compensation with the implicit agreement that her injuries were of accidental nature and then allege in another action that she was the victim of an intentional tort").

Another Ohio trial court, however, has read Blankenship differently. In Gains v. Webster Manufacturing Company, Case No. 81 CIV 091 (CCP Lake Cty., Nov. 29, 1982), the court refused to set off the jury award by the amount of workers' compensation benefits received by the plaintiff. Gains, like the instant case, was a Blankenship action. The court reasoned that workers' compensation is in the nature of occupational insurance and thus, like general insurance, should not be set off. The court then stated:

A recovery which compensates one's intentional injury in no way duplicates a partial award granted by the industrial commission for accidental, work-related injuries. More appropriately, it serves to equitably reimburse the injured employee or his representative while simultaneously ensuring accountability from

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