Jones v. VIP Development Co., Nos. 84-139

• Court: United States State Supreme Court of Ohio
• Writing for the Court: CLIFFORD F. BROWN; FRANK D. CELEBREZZE; LOCHER; LOCHER; WILLIAM B. BROWN; HOLMES
• Citation: 15 OBR 246,15 Ohio St.3d 90,472 N.E.2d 1046
• Parties: , 15 O.B.R. 246 JONES et al., Appellants, v. VIP DEVELOPMENT COMPANY, Appellee. GAINS, Executrix, Appellant, v. CITY OF PAINESVILLE, Appellee. HAMLIN et al., Appellants and Cross-Appellees, v. SNOW METAL PRODUCTS, Appellee and Cross-Appellant.
• Docket Number: Nos. 84-139,84-339 and 84-409
• Decision Date: 31 December 1984

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15 Ohio St.3d 90 472 N.E.2d 1046, 15 O.B.R. 246 JONES et al., Appellants,
v.
VIP DEVELOPMENT COMPANY, Appellee.
GAINS, Executrix, Appellant,
v.
CITY OF PAINESVILLE, Appellee.
HAMLIN et al., Appellants and Cross-Appellees,
v.
SNOW METAL PRODUCTS, Appellee and Cross-Appellant. Nos. 84-139, 84-339 and 84-409. Supreme Court of Ohio. Dec. 31, 1984.

Syllabus by the Court

1. An intentional tort is an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.

2. The receipt of workers' compensation benefits does not preclude an employee or his representative from pursuing a common-law[472 N.E.2d 1048] action for damages against his employer for an intentional tort.

3. An employer who has been held liable for an intentional tort is not entitled to a setoff of the award in the amount of workers' compensation benefits received by the employee or his representative.

In case No. 84-139, plaintiffs-appellants John R. Jones and Douglas Pridemore were employed by defendant-appellee VIP Development Company. On October 8, 1980, both plaintiffs were working at a company-owned construction site, installing a sewer line. While they were guiding a manhole conduit being moved by a hydraulic excavator, the boom of the excavator came into contact with a high voltage electrical power line. Plaintiffs were seriously injured. Both applied for, and are now receiving, workers' compensation benefits.

Plaintiffs, John R. and Marilyn Jones and Douglas Pridemore, subsequently filed separate suits naming VIP Development Company, Bucyrus Erie Company (manufacturer of the excavator) and Cincinnati Gas & Electric Company (owner of the power line) as parties defendant. In each of the pending causes, VIP filed a motion to dismiss or in the alternative for summary judgment. The motion for summary judgment was granted in each case.

The causes were consolidated on appeal. The court of appeals affirmed on the basis that the single assignment of error concerned issues which were not raised at trial, and therefore could not be addressed on appeal. This assignment of error contended that the trial court had erred in entering

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summary judgment in defendant's favor, because an employee is not precluded from enforcing his common-law remedies against his employer for an intentional tort, and that "intentional" need not mean "with intent to injure."

In case No. 84-339, plaintiff's decedent, Willie C. Gains, worked for the defendant city of Painesville as a coalman-ashman at its Municipal Light Plant. Part of his job was to maintain the coal conveyor system, which involved keeping the chutes through which coal fell from one conveyor line to another free from coal dust and coal fragment accumulation. The discharge chute at the upper level of this conveyor system was guarded with a sheet metal safety cover over the top of the chute. This safety cover was cut off by the defendant with a blow torch. On December 17, 1979, the decedent was working in the area of the discharge chute. In an effort to loosen coal accumulation, he reached into the chute with his left hand. His hand became caught between a pulley and the sidewall of the chute. The action of the pulley drew his entire arm into the chute, and also pulled him violently against the outside wall. He was found by a co-worker over one hour later, his arm still trapped inside the chute. Gains subsequently died of the severe injuries he received in this incident.

On January 27, 1981, plaintiff, Emalene Gains, executrix of the estate of her late husband, filed suit against several defendants. The city of Painesville was subsequently named as an additional defendant by way of amendment of the complaint. Before trial, the other defendants either settled the claim with plaintiff or were dismissed by her. The jury trial resulted in a jury verdict for plaintiff, awarding her $125,000, plus $3,622.50 in funeral expenses. The defendant employer filed post-trial motions for judgment notwithstanding the verdict, for a new trial, and also for a setoff of the jury award against the amount received by plaintiff through workers' compensation. All were overruled.

Both parties appealed. The court of appeals, 466 N.E.2d 576, reversed and entered final judgment in favor of the defendant employer, ruling that plaintiff had failed to prove that defendant's conduct was intentional. The court reasoned that an act, to be considered an intentional tort, must have as its purpose the intent to inflict injury. By finding that the record could not support the existence of such intent, the court held that the defendant employer was invulnerable to a common-law suit for [472 N.E.2d 1049] damages such as that allowed by this court in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 433 N.E.2d 572 [23 O.O.3d 504]. The court further ruled that plaintiff's receipt of workers' compensation benefits precluded the recovery of common-law damages. In light of this holding, the court declined to address plaintiff's cross-appeal regarding the applicability of the 1982 amendments to the Wrongful Death Act.

In case No. 84-409, plaintiffs-appellant, Donna F. Hamlin, Martha Fogleman, Gayle L. Studniarz, Cynthia Vaught, and Roseann R. Sundling, instituted an action against defendant, Snow Metal Products, their former

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employer, and two of its chemical suppliers, Chemetron Corporation and Hukill Chemicals Corporation. Their complaint alleged that they had been exposed to toxic chemicals while working at Snow Metal Products, and that they received serious physical injuries as a result. Plaintiffs further alleged that the defendant employer knew of the harmful exposure, but misrepresented to them that the exposure was not dangerous to their health, or represented that the conditions had been corrected when in fact they had not. The complaint described these actions as malicious, willful and reckless.

Plaintiffs and other employees began noticing the poor air quality at the plant sometime in 1978. Several employees confronted the plant supervisor about the problem and informed him that it was causing various physical ailments. Several of the plaintiffs testified that these complaints were either ignored or ridiculed.

In late 1979, the air quality at the plant noticeably worsened. Several employees broke out in rashes or experienced respiratory problems. These complaints were diagnosed as contact dermatitis and/or respiratory irritation. Plant management then initiated an investigation which revealed that acid fumes were leaking into the fresh air system. Company officials closed off this portion of the system and ventilated the plant. Meanwhile, management continued to assuage employees' fears with repeated assurances of their safety.

Finally, when several employees again became ill, the plant was shut down. When it reopened, the cadmium and copper plating lines had been permanently closed. At trial, there was medical testimony to the effect that plaintiffs' exposure to various chemicals and metals during their employment with defendant had resulted in a condition known as metal toxicity. The jury returned a verdict for plaintiffs, awarding $43,000 compensatory damages and $5,000 punitive damages. The court reduced this amount by $19,500, which represented the sum paid to plaintiffs by defendants Chemetron Corporation and Hukill Chemicals Corporation (both of whom had been dismissed from the suit) in exchange for plaintiffs' covenant not to sue.

Both parties appealed. The court of appeals reversed the judgment of the trial court and entered judgment for the defendant employer. In so holding, the court reasoned that the trial court erred in denying defendant's motion for a directed verdict because plaintiffs failed to demonstrate that defendant knowingly subjected plaintiffs to recognized hazards for the purpose of injuring them. The evidence "at most" showed negligence only. Thus, without the requisite element of intent to injure, the injury is exclusively compensable under the workers' compensation system.

However, the court rejected defendant's argument that the trial court erred in refusing to admit plaintiffs' workers' compensation records. The court stated that "an employee is not estopped nor is he precluded from

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seeking monetary damages merely because he has filed for and received workers' compensation benefits."

The court set aside the award of punitive damages on the basis that the alleged derogatory, sexist and racist remarks by defendant's management personnel to plaintiffs were insufficiently connected to the injuries suffered by plaintiffs. Nor are punitive damages appropriate in the absence of an intentional tort.

[472 N.E.2d 1050] With regard to plaintiffs' cross-appeal, the court of appeals held that, assuming arguendo that plaintiffs had established that defendant's conduct was intentional, it was error for the trial court to reduce their judgment by the amount received by plaintiffs from defendant's suppliers in exchange for a covenant not to sue.

The causes are now before this court pursuant to the allowance of motions and cross-motions to certify the record.

Kelley, Grossheim & Bavely and E. Ronald Grossheim, Cincinnati, for appellants in case No. 84-139.

Knepper, White, Arter & Hadden, Roger L. Sabo and Judith E. Trail, Columbus, for appellee in case No. 84-139.

Davis & Young Co., L.P.A., Paul D. Eklund and Robert Gregor, Cleveland, for appellant in case No. 84-339.

Cannon, Stern, Aveni & Krivok Co., L.P.A., and Charles E. Cannon, Painesville, for appellee in case No. 84-339.

Jeffries & Monteleone Co., L.P.A., J. Michael Monteleone and David Forrest, Cleveland, for appellants and cross-appellees in case No. 84-409.

Mansour, Gavin, Gerlack & Manos and Eli Manos, Cleveland, for appellee in case No. 84-409.

Squire, Sanders & Dempsey, Robert H. Gillespy, Frank J. Pokorny, Preston...