James L. Mitchell, Administrator of Estate of Mary Mitchell v. Lawson Milk Co., C/o Ct Corp. System, Stat. Agent, 87-LW-3703

• Decision Date: 15 October 1987
• Docket Number: 10483,87-LW-3703
• Parties: James L. MITCHELL, Administrator of Estate of Mary Mitchell, Deceased, Plaintiff-Appellant, v. LAWSON MILK COMPANY, c/o CT Corporation System, Stat. Agent, Defendant-Appellee.
• Court: Ohio Court of Appeals

James L. MITCHELL, Administrator of Estate of Mary Mitchell, Deceased, Plaintiff-Appellant, v. LAWSON MILK COMPANY, c/o CT Corporation System, Stat Agent, Defendant-Appellee.

No. 10483. Judgment affirmed in part and reversed in part, 40 Ohio St. 3d 190 (1988).

87-LW-3703 (2nd)

Court of Appeals of Ohio, Second District Montgomery

October 15, 1987

James D. Colner, Columbus, for plaintiff-appellant.

James J. Gilvary, Dayton, for defendant-appellee.

OPINION

FAIN Judge.

Plaintiff-appellant James L. Mitchell, Administrator of the Estate of Mary A. Mitchell, appeals from a judgment entered in the court below dismissing his complaint against defendant-appellee, the Lawson Milk Company. After reviewing the record, we conclude that the trial court erred in sustaining Lawson's motion to dismiss, since Mitchell's complaint set forth a legally sufficient allegation of intentional misconduct on Lawson's part. Consequently, the trial court's judgment of dismissal will be reversed, and the cause remanded for further proceedings.

I

During the evening of January 16, 1985, Mary Mitchell was working as a clerk at a convenience store operated by Lawson when she was fatally shot during an armed robbery. On August 14, 1986 James Mitchell, as administrator of Mary Mitchell's estate, filed a wrongful death action against Lawson in the Montgomery County Court of Common Pleas. In his complaint Mitchell alleged that by requiring Mary Mitchell to work in unsafe conditions without adequate security measures and without training in handling violent situations, Lawson had engaged in intentional misconduct that it knew, or should have known, was substantially certain to result in injury.

On September 15, 1986, Lawson responded to Mitchell's complaint by filing a motion to dismiss under Civ. R 12(B)(6) for failure to state a claim upon which relief can be granted. In support of its motion, Lawson argued that under subsection (A) of R.C. 4121.80, which became effective August 22, 1986, intentional tort actions by employees against their employers must be brought within one year after accrual. Therefore, according to Lawson, Mitchell's action was not timely since it was brought more than one year after Mary Mitchell's death. As an additional basis for dismissing the complaint, Lawson also argued that under R.C. 4121.80(G)(1), an employee must show a deliberate intent on his employer's part to cause him injury in order to recover for an intentional tort.®1¯ According to Lawson, since Mitchell's complaint did not contain an allegation that Lawson had acted deliberately to injure Mary Mitchell, it did not state a claim upon which relief could be granted.

Lawson contended before the trial court and now contends before this Court that R.C. 4121.80(A) and R.C. 4121.80(G)(1) are applicable to the present case by virtue of R.C. 4121.80(H) which provides as follows:

"This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on the effective date of this section and all claims or actions filed on or after the effective date, notwithstanding any provisions of any prior statute or rule of law of this state.'

In his memorandum contra to Lawson's motion to dismiss, Mitchell contended that under either R.C. 4121.80(G)(1) or the common law standard which prevailed prior to the enactment of R.C. 4121.80, his complaint sufficiently stated an intentional tort claim against Lawson. In addition, Mitchell argued that since R.C. 4121.80(A) and R.C. 4121.80(G)(1) are substantive in nature, applying them to his cause of action would violate the prohibition against retroactive legislation set forth in Section 28, Article II of the Ohio Constitution.®2¯

In its final judgment entry, dated May 13, 1987, the trial court held that although a statute of limitations is remedial in nature and may be given retroactive effect, it may not be applied so as to bar an existing cause of action unless a plaintiff is given a reasonable period from the time of enactment in which to assert his claim. Accordingly, the court held that R.C. 4121.80(A) could not be retroactively applied so as to bar Mitchell's claim.

However, while the trial court concluded that R.C. 4121.80(A) could not be given retroactive effect, it went on to hold that R.C. 4121.80(G)(1) could constitutionally be applied to Mitchell's cause of action. Consequently, the trial court held that since Mitchell had not alleged that Lawson had intended to cause Mary Mitchell injury, his complaint failed to state a claim upon which relief could be granted. As an additional basis for its decision, the trial court stated that even under the common law standard that applied to intentional tort claims prior to the enactment of R.C. 4121.80, Mitchell's complaint failed to state a claim.

II

From the trial court's judgment, Mitchell appeals to this Court, presenting the following Assignment of Error:

THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION TO DISMISS.

A

Subsequent to the trial court's entry of judgment in this case, we held in Cox v. Alloyd Insulation Co., Inc. (June 22, 1987), Montgomery App. No. 10190, unreported, that R.C. 4121.80(G)(1) is substantive in nature rather than remedial or procedural, and consequently that retroactive application of this provision violates Section 28, Article II of the Ohio Constitution. Applying the reasoning of that decision to the case before us, we hold that the trial court erred in giving R.C. 4121.80(G)(1) retroactive application and in dismissing Mitchell's complaint because it did not contain an allegation that Lawson had acted deliberately to injure Mary Mitchell.

Although we are not persuaded by Lawson's various arguments that our decision in Cox was incorrect, Lawson does present one new argument that was not made in Cox. Lawson argues that R.C. 4121.80(G)(1) is not subject to the prohibition against retroactive legislation because it is merely an attempt by the legislature to clarify its original intent in enacting R.C. 4123.74 and to correct the Ohio Supreme Court's errant decisions in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St. 2d 608 and Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90.®3¯ In support of its argument, Lawson cites the following cases: State, ex rel. Gassman, v. Indus. Comm. (1975), 41 Ohio St. 2d 64; State, ex rel. Bunch, v. Indus. Comm. (1980), 62 Ohio St. 2d 423; State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St. 3d 94; State, ex rel. Boyd, v. Frigidaire Div. (1984), 11 Ohio St. 3d 243; and State v. Johnson (1986), 23 Ohio St. 3d 127. In considering Lawson's argument, we find it necessary to review the history of Ohio's Workers Compensation Act.

Ohio's first workers' compensation plan, enacted in 1911, was voluntary in nature. Under this plan, employers with five or more employees who chose to participate in the plan and paid into the state insurance fund were not liable to respond in damages at common law or by statute for injuries suffered by their employees. G.C. 1465-57 (S.B. No. 127, 102 Ohio Laws 524, 528). Employers who did not participate in the plan remained liable to their employees for injuries suffered in the course of employment and in addition could not assert the defenses of assumption of risk, contributory negligence or the fellow servant rule. G.C. 1465-60 (S.B. No. 127, 102 Ohio Laws 524, 529). However, the Act also provided that when an employee of a participating employer suffered injury through the employer's willful acts or as a result of the employer's failure to comply with a state or local safety requirement, the employee could then choose either to receive compensation under the system or else to pursue a civil action against his employer. G.C. 1465-61 (S.B. No. 127, 102 Ohio Laws 524, 529). In State, ex rel. Yaple, v. Creamer (1912), 85 Ohio St. 349, the Ohio Supreme Court upheld the constitutionality of the 1911 Workers Compensation system.®4¯

At the Ohio Constitutional Convention held in 1912, a proposal was submitted to the convention that the Ohio Constitution be amended to provide for a compulsory system of worker's compensation. This proposal was approved by the convention and submitted to the electorate at a special election held September 3, 1912. The proposed amendment was ratified and became Section 35, Article II of the Ohio Constitution. See, Young, supra, at Section 1.10. The text of the amendment, as approved by the voters, reads as follows:

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, and taking away any or all rights of action or defenses from employes and employers; but no right of action shall be taken away from any employee when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of the lives, health, and safety of employes. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund and to determine all rights of claimants thereto.

In 1913, pursuant to Section 35, Article II, the Ohio legislature enacted a compulsory workers compensation plan which required all employers with five or more employees to contribute to a state insurance fund. 103 Ohio Laws 72-92....