Mitchell v. Lawson Milk Co., No. 87-2099

• Court: United States State Supreme Court of Ohio
• Writing for the Court: HERBERT R. BROWN; MOYER; DOUGLAS; DOUGLAS
• Citation: 40 Ohio St.3d 190,532 N.E.2d 753
• Parties: MITCHELL, Admr., Appellee, v. LAWSON MILK COMPANY, Appellant.
• Decision Date: 30 December 1988
• Docket Number: No. 87-2099

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40 Ohio St.3d 190 532 N.E.2d 753 MITCHELL, Admr., Appellee,
v.
LAWSON MILK COMPANY, Appellant. No. 87-2099. Supreme Court of Ohio. Submitted Nov. 2, 1988.
Decided Dec. 30, 1988. ^* Syllabus by the Court

A claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief[532 N.E.2d 754] unless the complaint alleges facts showing that the employer: (1) 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.)

On January 16, 1985, Mary A. Mitchell was fatally shot during a robbery which occurred while she was working as a clerk in a Lawson Milk Company store. James L. Mitchell, administrator of her estate and appellee herein, filed a complaint in the Court of Common Pleas of Montgomery County on August 14, 1986. He alleged that Lawson had committed an intentional tort by failing to provide adequate security or training in handling violent situations. Lawson responded with a motion to dismiss the complaint pursuant to Civ.R. 12(B)(6). ¹

The trial court granted the motion, holding that the complaint failed to state a claim of intentional tort under the retroactive application of R.C. 4121.80(G)(1), or under the "substantial certainty" test of Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 O.B.R. 246, 472 N.E.2d 1046.

The court of appeals concluded that the statute, effective August 22, 1986, could not be given retroactive effect consistent with Section 28, Article II of the Ohio Constitution. The court reversed the lower court's judgment

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on the basis that the complaint properly pled a claim of intentional tort under the standard set forth in Blankenship and Jones.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Matan & Smith, James D. Colner, Columbus, Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A. Bowman, Toledo, for appellee.

Smith & Schnacke Co., L.P.A., James J. Gilvary and Scott A. King, Dayton, for appellant.

HERBERT R. BROWN, Justice.

The central issue is whether the complaint sets forth a claim of intentional tort showing that appellee is entitled to relief sufficient to survive a Civ.R. 12(b)(6) motion to dismiss. For the reasons that follow, we hold that it does not.

A

Subsequent to the court of appeals' decision in the case herein, we announced a series of decisions involving allegations of intentional torts committed by employers and the applicability of R.C. 4121.80(G)(1) to such causes of action. 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. We determined that Section 28, Article II of the Ohio Constitution precludes the retroactive application of R.C. 4121.80(G)(1) to intentional tort causes of action arising prior to August 22, 1986, the effective date of the statute. Kunkler, supra, at 138, 522 N.E.2d at 480; Van Fossen, supra, 36 Ohio St.3d at 109, 522 N.E.2d at 498. The cause of action in the case herein arose on or about January 16, 1985. Thus, we measure the sufficiency of appellee's claim of intentional tort against [532 N.E.2d 755] the standard first set forth in Blankenship and Jones and explained in Van Fossen, Pariseau and Kunkler.

B

In Van Fossen, supra, at paragraph five of the syllabus, and Kunkler, supra, we implicitly adopted, for purposes of defining an intentional tort in Ohio, the definition of "intent" contained in 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A ("Restatement"). That section states:

"The word 'intent' is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it."

We noted the difference between causes of action sounding in negligence, recklessness and intentional tort. Van Fossen, supra, at 114-117, 522 N.E.2d at 502-504; Kunkler, supra, 36 Ohio St.3d at 138-139, 522 N.E.2d at 481. In order to establish an intentional tort, a plaintiff must show proof beyond that required to establish negligence and beyond that required to establish recklessness. When the employer acts despite the knowledge of some risk, the employer's conduct may be negligent. When the risk is great and the probability increases that certain consequences may follow, the employer's conduct may be reckless. As the probability that certain condequences will follow further increases and the employer knows that injury to employees is certain, or substantially certain, to result from his act, and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. Mere knowledge and appreciation of a risk, however, falls short of substantial certainty and does not by itself establish intent. Van

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Fossen, supra, at paragraph six of the syllabus; Kunkler, supra, at 139, 522 N.E.2d at 481; Comment b to Section 8A of the Restatement. With this in mind, we turn to the facts of the case before us to determine whether the complaint alleges a claim showing that appellee is entitled to relief. C

The facts alleged in the complaint are ²:

(1) While working alone at night in a Lawson convenience store, Mary was fatally shot by an assailant;

(2) the store contained no alarms, protective glass, cameras or other security devices; and

(3) Lawson had provided no training or instruction in handling violent situations to Mary.

The complaint concludes that Lawson knew or should have known that its employees were subject to armed robberies and other violent acts and that by requiring Mary to work under the above conditions, Lawson "engaged in willful, wanton and intentional misconduct and * * * knew, or [532 N.E.2d 756] should have known, that injury was substantially certain to occur."

In construing a complaint upon a motion to dismiss for failure to state a claim, we must presume...