Kaminski v. Metal & Wire Prods. Co.

• Decision Date: 18 March 2008
• Docket Number: No. 07-CO-15.,07-CO-15.
• Citation: 886 N.E.2d 262,2008 Ohio 1521,175 Ohio App.3d 227
• Court: Ohio Court of Appeals
• Parties: KAMINSKI, Appellant, v. METAL & WIRE PRODUCTS COMPANY et al., Appellees.

886 N.E.2d 262

175 Ohio App.3d 227

2008-Ohio-1521

KAMINSKI, Appellant, v. METAL & WIRE PRODUCTS COMPANY et al., Appellees.

No. 07-CO-15.

Court of Appeals of Ohio, Seventh District, Columbiana County.

Decided March 18, 2008.

David A. Forrest and Jarrett J. Northup, Cleveland; and Dennis A. DiMartino, Youngstown, for appellant.

William E. Pfau III, Youngstown, for appellee.

DONOFRIO, Judge.

{¶ 1} Plaintiff-appellant, Rose Kaminski, appeals from a Columbiana County Common Pleas Court judgment granting summary judgment in favor of defendant-appellee, Metal & Wire Products Company.

{¶ 2} Appellant was employed as a press operator at appellee's Salem manufacturing facility. On June 30, 2005, appellant was working at her press when the press ran out of metal coil. She asked a co-worker, Toby Stivers, to operate the forklift to load a new coil into her press. Using the forklift, Stivers retrieved a metal coil and brought it to appellant's area. The coil weighed approximately 800 pounds and was two to three inches thick and four to five feet tall. In order to load the coil onto the press, Stivers had to switch the coil from the right fork of the forklift to the left fork. Using the forklift, Stivers set the coil upright on the ground to facilitate the transfer. Because the coil needed to be balanced and because the supervisor could not be found, appellant balanced the unstable coil while Stivers attempted to thread the left fork through the coil. The fork bumped the coil. The coil fell onto appellant's legs and feet, causing serious injury.

{¶ 3} Appellant subsequently filed a complaint against appellee. She alleged that appellee had acted with the intent to cause injury to its employee by requiring her to participate in the performance of a dangerous activity without proper safety systems, in violation of R.C. 2745.01. As part of her complaint, appellant asserted that R.C. 2745.01 is unconstitutional. R.C. 2745.01 provides the requirements for employer intentional tort. Appellant further asserted a claim against appellee for common-law employment intentional tort.

{¶ 4} Appellee filed a counterclaim for a declaratory judgment that R.C. 2745.01 is constitutional. While appellant did not serve the Ohio attorney general with her complaint alleging that R.C. 2745.01 is unconstitutional, appellee did serve the attorney general with a copy of its counterclaim.

{¶ 5} Next, appellee filed a motion for summary judgment on its counterclaim asking the court to find that R.C. 2745.01 is constitutional. Appellant then filed a cross motion for summary judgment on the counterclaim asking the court to find that R.C. 2745.01 is unconstitutional.

{¶ 6} The trial court found the statute to be constitutional. It reasoned that it was required to afford the statute a presumption of constitutionality and that it could not find the statute to be clearly unconstitutional.

{¶ 7} After the trial court's ruling that R.C. 2745.01 is constitutional, appellee moved for summary judgment on appellant's complaint. Appellee alleged that appellant could point to no evidence that it had an intent to injure her, nor could she point to any evidence that it had acted with the belief that injury was likely to occur. The trial court agreed with appellee and granted summary judgment in its favor.

{¶ 8} Appellant filed a timely notice of appeal on May 9, 2007.

{¶ 9} Appellant raises two assignments of error, the first of which states:

{¶ 10} "The trial court erred in declaring R.C. § 2745.01 to be constitutional."

{¶ 11} The latest version of R.C. 2745.01 became effective on April 7, 2005. It provides:

{¶ 12} "(A) In an action brought against an employer by an employee, * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff 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.

{¶ 13} "(B) As used in this section, `substantially certain' means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death."

{¶ 14} Thus, R.C. 2745.01 codifies the common-law employer intentional tort and makes its remedy an employee's sole recourse for an employer intentional tort.

{¶ 15} Prior to the current version of R.C. 2745.01, the legislature has previously attempted to codify the common-law employer intentional tort. In 1986, the General Assembly enacted former R.C. 4121.80.¹ Under former R.C 4121.80 injuries resulting from employer intentional tort fell under the realm of workers' compensation and allowed the injured employee to seek excess damages. It was intended to govern actions alleging intentional torts committed by employers against their employees. Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 136, 522 N.E.2d 477. The legislature enacted former R.C. 4121.80 in response to the Ohio Supreme Court's decisions allowing employees to assert actions in common law against employers for intentional torts. See Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. However, the Ohio Supreme Court found former R.C. 4121.80 unconstitutional because it exceeded and conflicted with the legislative authority granted to the General Assembly. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, at paragraph two of the syllabus.

{¶ 16} Subsequently, the General Assembly enacted R.C. 2745.01.² The Ohio Supreme Court then found this statute to be unconstitutional. Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 308, 707 N.E.2d 1107. It reasoned that "[b]ecause R.C. 2745.01 imposes excessive standards (deliberate and intentional act), with a heightened burden of proof (clear and convincing evidence), it is clearly not `a law that furthers the "* * * comfort, health, safety and general welfare of all employe[e]s."'" Id., quoting Brady, 61 Ohio St.3d at 633, 576 N.E.2d 722, quoting Section 34, Article II of the Ohio Constitution.

{¶ 17} Consequently, the General Assembly amended R.C. 2745.01. Appellant now alleges that this current version of R.C. 2745.01 is unconstitutional.

{¶ 18} All legislative enactments enjoy a presumption of constitutionality. State v. Anderson (1991), 57 Ohio St.3d 168, 171, 566 N.E.2d 1224; Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377, 15 O.O.3d 450, 402 N.E.2d 519. Furthermore, courts must apply all presumptions and pertinent rules of construction to uphold, if at all possible, a statute alleged to be unconstitutional. State v. Sinito (1975), 43 Ohio St.2d 98, 101, 72 O.O.2d 54, 330 N.E.2d 896. Thus, we must begin our analysis with the presumption that R.C. 2745.01 is constitutional.

{¶ 19} Appellant specifically takes issue with the phrase "substantially certain" and its application in the statute. The statute defines "substantially certain" as acting with "deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." Appellant argues that the Ohio Supreme Court has rejected such a definition.

{¶ 20} Appellant is correct. The Ohio Supreme Court has rejected a similar definition of "substantially certain." See Jones, 15 Ohio St.3d at 95, 15 OBR 246, 472 N.E.2d 1046. However, the legislature can change the common law by legislation as long as it acts within constitutional limitations. Johnson, 85 Ohio St.3d at 303, 707 N.E.2d 1107. Thus, the fact that the Supreme Court has previously rejected a similar definition of substantial certainty is not a reason, in and of itself, to find R.C. 2745.01 unconstitutional.

{¶ 21} Appellant next argues that R.C. 2745.01 conflicts with and exceeds the legislative authority granted to the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Constitution. She asserts that the Ohio Supreme Court has repeatedly held that the General Assembly does not have the power under Sections 34 and 35 to codify the common-law employer intentional tort because it necessarily occurs outside of the employment relationship and does not further the comfort, health, safety, and general welfare of employees.

{¶ 22} Section 34, Article II of the Ohio Constitution provides: "Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the constitution shall impair or limit this power." Section 35, Article II provides the General Assembly with the power to pass laws establishing a state workers' compensation fund "[f]or 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."

{¶ 23} In Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph two of the syllabus, the Ohio Supreme Court held that R.C. 2745.01's predecessor, former R.C. 4121.80, exceeded and conflicted with the legislative authority granted to the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Constitution and was unconstitutional. However, the court's reasoning on the subject was only a plurality decision. In determining that former R.C. 4121.80 violated Section 34, Justice Sweeney, writing for the plurality, reasoned that "[a] legislative enactment that attempts to remove a right to a remedy under common law that would otherwise benefit the employee cannot be held to be a law that furthers the `* * * comfort, health, safety and general welfare of all employe[e]s * * *.'" Id. at 633, 576 N.E.2d 722 (Justices Douglas and Resnick concurring). In finding that the statute violated Section 35, Justice Sweeney wrote that former R.C. 4121.80 attempted to circumvent the purposes of Section...