Houdek v. Thyssenkrupp Materials N.A., Inc.

• Decision Date: 06 December 2012
• Docket Number: No. 2011–1076.,2011–1076.
• Citation: 983 N.E.2d 1253,134 Ohio St.3d 491
• Parties: HOUDEK, Appellee, v. THYSSENKRUPP MATERIALS N.A., INC., Appellant, et al.
• Court: Ohio Supreme Court

134 Ohio St.3d 491

983 N.E.2d 1253

HOUDEK, Appellee,

v.THYSSENKRUPP MATERIALS N.A., INC., Appellant, et al.

No. 2011–1076.

Supreme Court of Ohio.

Submitted June 20, 2012.

Decided Dec. 6, 2012.

Recognized as Unconstitutional

R.C. § 4121.80

Prior Version Recognized as Unconstitutional

R.C. § 2745.01

Friedman, Domiano & Smith Co., L.P.A., Stephen S. Vanek, David R. Grant, and Jeffrey H. Friedman; and Smith & Condeni, L.L.P., Joseph A. Condeni, and Stacey Walley, Cleveland, for appellee.

Reminger Co., L.P.A., Gregory G. Guice, Clifford C. Masch, and Brian D. Sullivan, Cleveland, for appellant.

Tucker Ellis, L.L.P., and Benjamin C. Sassé, Cleveland, urging reversal for amicus curiae Ohio Association of Civil Trial Attorneys.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, and Marc J. Jaffy, Columbus, urging affirmance for amicus curiae Ohio AFL–CIO.

Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., Theodore A. Bowman, and Jonathan M. Ashton, Toledo, urging affirmance for amici curiae Ohio Conference of Teamsters and Teamsters Local 20.

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, Cleveland, urging affirmance for amicus curiae Ohio Association for Justice.

O'DONNELL, J.

[Ohio St.3d 491]{¶ 1} ThyssenKrupp Materials N.A., Inc., appeals from a judgment of the Eighth District Court of Appeals that reversed a grant of summary judgment in its favor on claims that one of its supervisors had directed Bruce R. Houdek to work in an aisle of a warehouse where he sustained injuries when a co-worker operating a sideloader struck him. We are asked to consider the impact of a recently enacted statute on our prior case decisions which held employers liable for intentional torts occurring in the workplace when injuries were substantially certain to occur.

{¶ 2} R.C. 2745.01(A), effective April 7, 2005, specifies that an employer is not liable for an intentional tort unless the employee proves that “the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur,” defined in Subdivision (B) as acting “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”

[Ohio St.3d 492]{¶ 3} The Eighth District Court of Appeals ignored this statutory definition of “substantially certain,” concluding it resulted from a scrivener's error, and held that ThyssenKrupp could be held liable for Houdek's injuries if it “objectively believed the injury to Houdek was substantially certain to occur,” notwithstanding the lack of proof of a deliberate intent to injure. Houdek v. ThyssenKrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694, 2011 WL 1326374, ¶ 46.

{¶ 4} Based upon our review of this record, no evidence exists that ThyssenKrupp deliberately intended to injure Houdek by directing him to work in the warehouse aisle. Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court entered in favor of ThyssenKrupp is reinstated.

Facts and Procedural History

{¶ 5} On October 10, 2008, Houdek injured his back putting pieces of copper on a pallet while working at ThyssenKrupp's Cleveland warehouse. He returned to work on October 14, 2008, with light-duty restrictions, and Joseph Matras, the plant manager, asked him to assist in relabeling inventory on warehouse storage racks as part of a transition to a new inventory management system.

{¶ 6} Replacing the labels on merchandise required Houdek to work in the same aisles where workers on sideloaders pulled goods from racks 25 feet high. A sideloader moves up and down the aisles with forks protruding toward the merchandise but has the operator facing the rack, rather than the direction of travel. At a shift meeting informing employees about the relabeling process, a sideloader operator, George Krajacic, asked Matras, the plant manager, whether he should rearrange his invoices to avoid pulling merchandise in aisles where relabeling had started, but Matras indicated that this would not be necessary.

{¶ 7} The record further reveals that ThyssenKrupp did not provide reflective vests to employees working in dimly lit aisles, did not require the placement of orange safety cones at the end of aisles in which employees were working, and did not provide expandable gates to prevent machinery from entering aisles where employees were working. However, it did direct employees to alert sideloader operators before they began working in a specific aisle.

{¶ 8} Houdek told Krajacic, the second-shift sideloader operator, that he would be working in the aisle between racks A and B. After working there for approximately five hours, Houdek heard the whirring sound of an approaching sideloader. Forgetting that Houdek had told him that he would be working in that aisle, Krajacic drove the sideloader down the aisle between racks A and B, a narrow aisle which dead ends at a wall; thus, Houdek had no means of escape, and the sideloader pinned him against a scissor lift he had been using, breaking his leg below the knee and shattering his ankle.

[Ohio St.3d 493]{¶ 9} Houdek sued ThyssenKrupp, asserting the company had deliberately intended to injure him by directing him to work in the aisle with knowledge that injury would be certain or substantially certain to occur. ThyssenKrupp moved for summary judgment. The trial court granted the motion and entered summary judgment for ThyssenKrupp, concluding that Houdek failed to show that his employer had intended to injure him.

{¶ 10} The Eighth District Court of Appeals reversed, stating that the terms used in R.C. 2745.01(A) are in “harmonic dissonance” with the definition of “substantially certain” in R.C. 2745.01(B) and that the court preferred to believe “paragraph (B) is a scrivener's error.” Houdek, 2011-Ohio-1694, 2011 WL 1326374, ¶ 42. As a result, the appellate court held that an injured employee may prove an employer intentional tort by showing that the employer acted with an intent to injure the employee or with the belief that the injury was substantially certain to occur. Id. The court applied an objective test as to what a reasonably prudent employer would believe and determined that “there are genuine issues of material fact, particularly given the specific supervisory directives to both Houdek and the sideloader operator and the sideloader operator's warning to the warehouse manager, that [ThyssenKrupp] objectively believed the injury to Houdek was substantially certain to occur.” Houdek at ¶ 45–46.

Arguments on Appeal

{¶ 11} ThyssenKrupp relies on this court's recent decisions in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, for the proposition that R.C. 2745.01 permits recovery for an employer intentional tort only when the employer acts with the specific intent to cause injury. It maintains that recognizing a scrivener's error in R.C. 2745.01 conflicts with our case law and ignores the intent of the General Assembly to curtail the common law cause of action. Although ThyssenKrupp concedes that intent may be proven by circumstantial evidence, it argues that the court of appeals deviated from the intent-to-injure standard by applying an objective test—what a reasonably prudent employer would believe—rather than a subjective test—what the employer actually believed. ThyssenKrupp maintains that there is no evidence of a specific intent to injure Houdek.

{¶ 12} Houdek notes that R.C. 2745.01(C) establishes a presumption that the employer intended to injure the worker if the employer deliberately removes a safety guard, and he asserts that this presumption should apply in this case, because ThyssenKrupp failed to install better lighting, to require the use of safety cones to alert sideloader operators that Houdek would be working in the aisle, or to provide other protective gear such as reflective vests or expandable gates. Houdek argues that because the subjective mental state is impossible to [Ohio St.3d 494]prove absent a confession, intent to injure may be established through the employer's conduct. Thus, he maintains that there is sufficient evidence that ThyssenKrupp intended to injure him: the company had been warned of the danger posed to workers in the aisles only days before the accident, yet it took no action to safeguard Houdek before directing him to work there.

{¶ 13} Accordingly, we confront the question whether a claimant bringing an employer intentional tort claim is required to prove that the employer acted with a deliberate intent to injure.

Employer Intentional Tort

{¶ 14} In Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), this court recognized a cause of action for an employer's intentional tort against its employee, holding that because intentional tort claims do not arise out of the employment relationship, the workers' compensation laws do not provide immunity from suit. The court concluded that “R.C. 4123.74 does not bestow upon employers immunity from civil liability for their intentional torts and an employee may resort to a civil suit for damages.” Id. at 613, 433 N.E.2d 572.

{¶ 15} Further, in Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), the court rejected the proposition that an employer's “specific intent to injure is necessary to a finding of intentional misconduct.” Relying on Prosser & Keeton, Law of Torts, Section 8, at 35–36 (5th Ed.1984) and 1 Restatement of the Law 2d, Torts, Section 8A, at 15 (1965), the court defined “intent” to include not only the specific consequences that an actor desires, but also those consequences that an actor believes are substantially certain to result from the conduct. Id. at 94–95. The court therefore held, at paragraph one of the syllabus: “An intentional tort is an act committed with the intent to...