Nayman v. Kilbane

• Decision Date: 15 September 1982
• Docket Number: No. 81-1787,81-1787
• Citation: 1 Ohio St.3d 269,439 N.E.2d 888
• Parties: , 1 O.B.R. 379 NAYMAN et al., Appellants, v. KILBANE, Judge, Appellee.
• Court: Ohio Supreme Court

Page 269

1 Ohio St.3d 269

439 N.E.2d 888, 1 O.B.R. 379

NAYMAN et al., Appellants, v. KILBANE, Judge, Appellee.

No. 81-1787.

Supreme Court of Ohio.

Sept. 15, 1982.

McNamara, Gemperline & Wagner, Douglas B.M. Ehlke, Robert J. Gemperline and Richard B. Gemperline, Cleveland, for appellants.

Endress & Endress, Richard R. Endress and Jeffery C. Endress, Cleveland, for appellee.

PER CURIAM.

The issue to be resolved on this appeal is whether a writ of prohibition should issue in this cause to prevent appellee from exercising jurisdiction in the action filed against the appellants by Mazza. Appellants contend the Workers' Compensation Act, R.C. 4123.74, 4123.741 and Section 35, Article II, of the Ohio Constitution, grant a complying employer absolute immunity for intentional torts resulting in injury to an employee, when that employee's injury is compensable under the Workers' Compensation Act. From this the appellants conclude such claims by employees for intentional torts are exclusively within the jurisdiction of the Industrial Commission, thus rendering appellee's "assumption of jurisdiction * * * an unauthorized usurpation of judicial power * * * " which mandates the issuance of a writ of prohibition. For the following reasons, we disagree.

As stated by this court in State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, at 73-74, 424 N.E.2d 297 [21 O.O.3d 45, 47]:

"Prohibition is an extraordinary remedy which is customarily granted with caution and restraint, and is issued only in cases of necessity arising from the inadequacy of other remedies. * * *

" * * *

"This court has often had the opportunity to address the question whether a writ of prohibition should be used to prevent the exercise of jurisdiction by an inferior court.

" 'It is established law in Ohio that "[a] court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on the issue raised, and a party challenging its jurisdiction has a remedy at law in appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action." * * * The corollary to that general rule is that "[w]here there is a total want of jurisdiction on the part of a court, a writ of prohibition will be allowed * * *." ' "

Therefore, relying upon Britt, our inquiry must initially focus upon whether the Court of Common Pleas totally lacks jurisdiction over the action filed by Mazza against the appellants.

In Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 433 N.E.2d 572 [23 O.O.3d 504], this court stated as follows:

"An employee is not precluded by Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 and 4123.741 from enforcing his common law remedies against his employer for an intentional tort."

[439 N.E.2d 890] At page 620, 433 N.E.2d 572 in Blankenship, Justice Locher also stated: " * * * intentional torts fall outside the workers' compensation scheme, and jurisdiction for intentional torts done by employers to their employees lies in the Court of Common Pleas." (Emphasis added.) (Locher, J., concurring in part and dissenting in part.)

In view of this court's position as announced in Blankenship, it is clear the common pleas court does possess general subject matter jurisdiction of Mazza's action against the appellants. Furthermore, normally a precondition to the issuance of a writ of prohibition is a demonstration by the petitioner that he has no adequate legal remedy by the normal appellate process. See State, ex rel. Stough v. Bd. of Edn. (1977), 50 Ohio St.2d 47, 362 N.E.2d 266 [4 O.O.3d 116], and State, ex rel. Bingham v. Riley (1966), 6 Ohio St.2d 263, 217 N.E.2d 874 [35 O.O.2d 424]. The appellants herein do have an adequate remedy at law in appeal from any adverse holding by the Court of Common Pleas.

Our holding denies appellants' request for a writ of prohibition and is confined to the mere proposition that the common pleas court possesses the jurisdiction to review Mazza's cause to determine whether a cognizable claim exists.

This decision is consistent with our holding under the old summary judgment statute before Civ. R. 56 became effective, that denial of a motion for summary judgment is an interlocutory order from which appeal does not lie, State, ex rel. Overmeyer v. Walinski (1966), 8 Ohio St.2d 23, 222 N.E.2d 312 [37 O.O.2d 358], and with our holding in Balson v. Dodds (1980), 62 Ohio St.2d 287, 405 N.E.2d 293 [16 O.O.3d 329], that if a motion for summary judgment is overruled and a trial is held, the question whether the overruling of the summary judgment was correct may be raised on appeal by m...