Miller v. Reed, 1-84-56
| Decision Date | 22 January 1986 |
| Docket Number | No. 1-84-56,1-84-56 |
| Citation | 27 OBR 89,27 Ohio App.3d 70,499 N.E.2d 919 |
| Parties | , 27 O.B.R. 89 MILLER, Appellant, v. REED; Mello-Creme, Inc., Appellee. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A supervisor who attempts to discipline an employee by shoving the employee exceeds the scope of his authority, thereby relieving the employer of any common-law liability to the injured employee. Accordingly, although the injured employee may be eligible for workers' compensation benefits, having been injured in the course of, and arising out of, his employment, he cannot recover common-law tort damages from his employer based upon the supervisor's intentional tort. (Jones v. VIP Development Co. [1984], 15 Ohio St.3d 90, 472 N.E.2d 1046, applied.)
Gallon, Kalniz & Iorio Co., L.P.A., and David Zoll, Toledo, for appellant.
Thomas R. Kuhn and Robert K. Leonard, Lima, for appellee.
This is an appeal from a judgment of the Court of Common Pleas of Allen County for the defendant in an action for damages by the appellant against the defendant, Mello-Creme, Inc. The action involved an incident in which the plaintiff, an employee of Mello-Creme, Inc., was struck by her supervisor, one Ron Reed. The incident was described by the plaintiff in her testimony at the trial where she stated that the staff was busy and she asked for some help from Reed who then "got all upset at me and started yelling." Plaintiff further testified that:
The plaintiff was subsequently discharged.
The original action was brought against Ron Reed and Mello-Creme, Inc. (hereafter "Mello-Creme"), but Reed was subsequently voluntarily dismissed. The cause came to trial before a jury and at the close of the plaintiff's case Mello-Creme moved for a directed verdict. The complaint had asserted several grounds for recovery including that of an intentional tort within the scope of employment, that of the negligent employment of an employee known to have aggressive and dangerous tendencies, and that of violation of an implied contract not to discharge plaintiff except pursuant to the terms of an employee handbook. The defendant raised the issue of election of remedies, the plaintiff having applied for and received workers' compensation benefits.
The trial court granted the requested directed verdict on the issues involving an intentional tort but overruled that motion as to the issue of violation of an implied contract. Subsequently, the jury, on this issue, found for the defendant and judgment was rendered for the defendant.
The plaintiff thereafter appealed asserting two assignments of error which are as follows:
The second assignment of error is well-taken, but not dispositive of this appeal. The case of Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 472 N.E.2d 1046 paragraph two of the syllabus, held that receipt of workers' compensation benefits does not preclude an employee from pursuing a common-law action for damages against the employer for damages for an intentional tort. 1
Thus, the receipt of workers' compensation benefits is not a bar to this action if there was established by the evidence the existence of an intentional tort by the employer. However, the question still remains as to whether or not a jury question was presented as to the existence of an intentional tort of the employer and this issue is addressed by the first assignment of error.
There is no question that the facts presented in evidence were sufficient to establish an intentional tort in the traditional meaning of that term. There was evidence of an actual battery which was, it may be inferred, fully intended by Reed. The question, however, remains as to whether there is evidence from which it may be reasonably inferred that this intent of Reed was the intent of Mello-Creme, and this question is one of scope of employment. In Jones, supra, the Supreme Court stated at 95, 472 N.E.2d 1046:
" * * * [A]n 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. * * * "
In the various factual situations presented in Jones, supra, the emphasis was on the inferred belief of the employer that an injury was substantially certain to occur. Here, however, the employer did nothing and intended nothing, unless the act of the employee, Reed, and his intention, were also to be imputed to the employer. This then presents an issue as to scope of employment.
In 3 Ohio Jurisprudence 3d (1978) 235, Agency, Section 155, it is stated:
"The principal or master, ordinarily, is not liable for the willful and malicious torts of the subordinate, if the act is done for no other purpose than to gratify the subordinate's ill will against the person injured, for such assault is a departure from the employment. * * * " (Footnotes omitted.)
In Finley v. Schuett (1982), 8 Ohio App.3d 38, at 39, 455 N.E.2d 1324, it is said:
* * * "
The question narrows to the situation here presented. The evidence establishes that in the operation of the business Ron Reed was, at that time, the immediate supervisor of the plaintiff. The evidence further establishes that Ron Reed in anger shoved and struck the plaintiff in response to a request for assistance made by the plaintiff.
"Supervisor" is defined in Webster's Third New International Dictionary (1981) as follows, here potentially applicable:
"1: one that supervises a person, group, department, organization, or operation: as a: such a person having authority delegated by an employer to hire, transfer, suspend, recall, promote, assign, or discharge another employee or to recommend such action * * *."
The word "supervise," again, as potentially applicable, is defined as follows:
"2: to coordinate, direct, and inspect continuously and at...
To continue reading
Request your trial
-
Fermino v. Fedco, Inc.
...scope of the exclusivity rule by claiming it was motivated by the need for employee discipline. (See Miller v. Reed (Ohio Ct.App.1986) 27 Ohio App.3d 70, 27 OBR 89, 499 N.E.2d 919, 922 [civil action permitted when supervisor "with force and violence, act[s] to discipline the plaintiff for d......
-
Baab v. AMR Services Corp.
...offending co-worker's acts are attributable to the employer under the doctrine of respondeat superior. See, e.g., Miller v. Reed, 27 Ohio App.3d 70, 499 N.E.2d 919 (1986); Hester v. Church's Fried Chicken, 27 Ohio App.3d 74, 499 N.E.2d 923 (1986). Ohio law provides that "it is well-establis......
-
PATROLMAN" X" v. City of Toledo
...conduct of the master's business, it may not be argued that the servant was acting upon his authority.'" Miller v. Reed (1986), 27 Ohio App.3d 70, 72, 27 OBR 89, 91, 499 N.E.2d 919, 921, quoting Finley v. Schuett (1982), 8 Ohio App.3d 38, 39, 8 OBR 41, 42, 455 N.E.2d 1324, 1325. See, also, ......
-
Blankenship v. Parke Care Centers, Inc.
...conduct of an employee should be attributed to his employer presumably falls to the plaintiff. See, e.g., Miller v. Reed, 27 Ohio App.3d 70, 73, 27 OBR 89, 499 N.E.2d 919 (1986). F. Analysis of Employer's Sexual Harassment Liability for Defendant Malcom's In apparent deference to an employe......