Michael H. Tulloh v. Goodyear Atomic Corp., 90-LW-4855

• Decision Date: 05 September 1990
• Docket Number: 449,90-LW-4855
• Parties: Michael H. Tulloh Plaintiff-Appellant, v. Goodyear Atomic Corporation, et al., Defendants-Appellees. Case
• Court: Ohio Court of Appeals

Michael H. Tulloh Plaintiff-Appellant, v. Goodyear Atomic Corporation, et al Defendants-Appellees.

No. 449 Judgment affirmed in part, reversed in part and cause remanded, 62 Ohio St. 3d 541 (1992)

90-LW-4855 (4th)

Court of Appeals of Ohio, Fourth District Pike

September 5, 1990

Waite Schneider, Bayless & Chesley Co., L.P.A., Ms. Louise M Roselleand Ms. Katherine R. Breunderman, Cincinnati, Ohio, for Appellant.

Vorys, Sater, Seymour & Pease, Mr. Robert E. Tate, Columbus, Ohio, for Appellees.

STEPHENSON J.

This is an appeal from a judgment entered by the Pike County Court of Common Pleas dismissing the complaint filed by Michael H. Tulloh, plaintiff below and appellant herein, upon the motion of Goodyear Atomic Corporation and Martin Marietta Energy Systems, Inc., defendants below and appellees herein. Appellant assigns the following errors:

"I. The trial court erred to the detriment of the plaintiff by applying improper standards of review to plaintiff's complaint.

II. The trial court abused its discretion by dismissing plaintiff's complaint pursuant to Civ. R. 12(B) (6) when it tested the merits of the complaint and not merely the legal sufficiency of the allegations.

III. The trial court erred to the detriment of plaintiff by treating defendants' motion to dismiss under Civ. R. 12(B) (6) as a motion for summary judgment pursuant to Civ. R. 56, without affording plaintiff the requisite notice and opportunity to respond.

IV. The trial court abused its discretion by considering facts not in evidence and by considering information in a form other than that specified by Civ. R. 56(C).

V. The trial court erred to the detriment of the plaintiff by declining jurisdiction over plaintiff's claim for wrongful discharge."

The following facts are pertinent to this appeal. On February 19, 1988, appellant filed a complaint in the Pike County Court of Common Pleas wherein he asserts two claims, to-wit: (1) appellees committed an intentional tort against appellant(1) and (2) Appellee Martin Marietta wrongfully discharged appellant. Appellees filed an answer on March 10, 1989 denying liability. On November 16, 1989, appellees filed a motion pursuant to Civ. R. 12(B) (6) seeking to have appellant's complaint dismissed for failure to state a claim upon which relief could be granted or, in the alternative, pursuant to Civ. R. 56, seeking the grant of summary judgment on both claims. On November 29, 1989, appellant filed a memorandum in opposition to appellees' motion to dismiss and attempted to reserve his right to file further materials if the court treated appellees' motion as one for summary judgment rather than as one to dismiss for failure to state a claim. In a judgment entry filed on December 8, 1989, the lower court ruled in favor of appellees.

Appellant asserts five assignments of error, however, he never specifically refers to the assignments of error in his argument as required. See App. R. 12(A). Instead, appellant essentially posits three issues for review, to-wit: (1) the court erred in dismissing hes intentional tort claim, (2) the court erred ()in converting the Civ. R. 12(B) (6) motion into a summary judgment motion with out giving appellant notice and the opportunity to respond, and (3) the court erred in dismissing appellant's wrongful discharge claim. Basically, appellant's first two assignments of error address the first argument, his third and fourth assignments of error address the second argument, and his fifth assignment of error addresses the third argument.

With this in mind, we will first address appellant's first and second assignments of error. As noted supra, appellant contends that the court erred in dismissing his intentional tort claim. The court dismissed the claim pursuant to appellees' Civ. R. 12(B) (6). Actually, since the motion was filed after appellees' filed their answer, they should have filed a Civ. R. 12(C) motion on the pleadings. However, since the standards for Civ. R. 12(B) (6) motions and Civ. R. 12(C) motions are identical, see Sabolsice v. Armm Coal Co. (June 28, 1989), Lawrence County App. No. 1874, unreported, it is not of importance which type of motion we consider.

We first note that when considering a Civ. R. 12(B) (6) motion, the allegations in the complaint must be taken as true. Phung v. Waste Management. Inc. (1986), 23 Ohio St. 3d 100, 102. Then before a motion to dismiss for failure to state a claim may be granted, it must appear beyond a doubt that from the pleadings the plaintiff would not be entitled to recover under any set of facts. O'Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242. More specifically, the Ohio Supreme Court in Mitchell v. Lawson Milk Company (1988), 40 Ohio St. 3d 190, in the syllabus stated the following with respect to Civ. R. 12(B) (6) motions filed in cases alleging an intentional tort by an employer:

"A claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief unless the complaint alleges facts showing that the employer: (l) specifically desired to injure the employee; or (2) knew that injury to an employee was certain or substantially certain to result from the employer's act and, despite this knowledge, still proceeded. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St. 3d 100, 522 N.E. 2d 489; Pariseau v. Wedge Products. Inc. [1988), 36 Ohio St. 3d 124, 522 N.E. 2d 511; and Kunkler v. Goodyear Tire & Rubber Co. [1988], 36 Ohio St. 3d 135, 522 N.E. 2d 477, construed.)" (Emphasis added.)

The reasoning for this standard is that "[v]irtually every injury in the workplace can be made the basis for a claim of intentional tort if the unsupported conclusion that the employer intended to injure the employee is allowed to prevail over factual allegations which preclude the possibility of intentional tort." Id. at 193. Further, as Justice Douglas has stated on more than one occasion, see Mitchell, supra at 194 (Douglas, J. Concurring); Van Fossen v. Babcock & Wilson Co. (1988), 36 Ohio St. 3d 100, at 123 (Douglas, J. dissenting), "to place an employer in a position of having to extensively defend an `intentional tort' case which is based upon nebulous theories and speculation is . . . not a just result. The cost of defense alone is enough to seriously damage some employers."

We will now apply the foregoing to the case at bar. Generally, an employee cannot recover directly from his employer if he is injured on the job. Under such circumstances, he is limited to benefits under the Workers' Compensation Act. However, an employee is not limited to the Workers' Compensation Act if his injuries are the result of an intentional tort by his employer. See Van Fossen, supra; Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90.

There are two standards to prove intentional tort in Ohio. For causes of action which arose prior to August 22, 1986, a common law standard is used. The Supreme Court in Van Fossen, supra at 116-117, clarified the standard which had been set forth in Jones, supra and Blankenship v. Milacro Chemicals, Inc. (1982), 69 Ohio St. 2d 608, by stating the following:

"We now interpret Jones to require knowledge on the part of the employer as a vital element of the requisite intent. Thus, under this interpretation of Jones, within the purview of the Restatement of Torts 2d, and the commentary of Prosser & Keeton on Torts applicable to this area of law, we hold that in order for `intent' to be found for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (l) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjected to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks.

We recognize that pursuant to this interpretation of `intent' as set forth above, proof of the actual or subjective intent of the actor to accomplish the consequences is not required. Our discussion herein is directed toward significantly limiting the areas within which `intent' on the part of the actor may be circumstantially inferred.

To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk,, his conduct may be negligence. Where the risk is great and the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent."

For causes of action which arise on or after August 22, 1986, the standard is set forth in R.C. 4121.80(2) which became effective on that date. For such causes of action, an employee must prove that his employer committed an intentional tort as defined by R.C. 4121.80. The pertinent definitions are set forth in R.C. 4121.80(G) (1), as follows:

"`Intentional tort' is an act committed with the intent to injure another or

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