Pariseau v. Wedge Products, Inc., No. 87-828

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPER CURIAM; MOYER; HOLMES; HOLMES; LOCHER; DOUGLAS
Citation522 N.E.2d 511,36 Ohio St.3d 124
PartiesPARISEAU, Appellee, v. WEDGE PRODUCTS, INC., Appellant.
Docket NumberNo. 87-828
Decision Date13 April 1988

Page 124

36 Ohio St.3d 124
522 N.E.2d 511
PARISEAU, Appellee,
v.
WEDGE PRODUCTS, INC., Appellant.
No. 87-828.
Supreme Court of Ohio.
April 13, 1988.

Sindell, Lowe & Guidubaldi Co., L.P.A., and Claudia R. Eklund, Cleveland, for appellee.

Petro, Rademaker, Matty & McClelland, Robert C. McClelland and James M. Petro, Cleveland, for appellant.

Vorys, Sater, Seymour & Pease, Russell P. Herrold, Jr., and Robert A. Minor, Columbus, urging reversal for amicus curiae, Ohio Mfrs.' Assn.

Mansour, Gavin, Gerlack, & Manos Co., L.P.A., Ernest P. Mansour and Eli Manos, Cleveland, urging reversal for amici curiae, Crawford Fitting Co. et al.

PER CURIAM.

Once again, we are asked to distinguish between a factual

Page 126

situation in the workplace giving rise to an inference of aggravated negligence or reckless disregard for the rights of another and one giving rise to the legal concept of an intentional tort. As explained in Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 139, 522 N.E.2d 477, 481, "[t]o establish an intentional tort there must be proof beyond that required to prove negligence and beyond that to prove recklessness. It is in this context that the facts should be examined to determine whether an employer has acted despite a known threat that harm to an employee is substantially certain to occur." 1

[522 N.E.2d 514] Unlike Kunkler, the record here does not contain even the suggestion that appellant's foreman intended to injure appellee or that appellee's superior placed him in a deadly or extremely dangerous working environment with the foreknowledge that he would be killed or injured. As stated in Prosser & Keeton, The Law of Torts (5 Ed.1984) (hereinafter referred to as "Prosser"), " * * * the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent." Id. at 36, Section 8.

Testimony in the case at bar suggested that the injury was proximately caused by improper adjustment of pullback restraint guards on the press used by appellee. There was no direct evidence on this point, and at best, the record reflects but an inference of such negligence. Evidence was also offered that the 2/11 press had suffered from brake malfunction in the past, which malfunction may inferentially have contributed to appellee's injury. The trial court, however, found the record devoid of direct evidence on this issue as well. A reading of the record, however, could lead to the inference that such a malfunction proximately contributed to appellee's injury. 2 Counsel for the plaintiff conceded that there were only two possible causes for the accident--maladjustment of the pullback restraint guards and breakage of a bolt in the press.

The trial judge noted that direct evidence showed that the 2/11 press had "repeated" on several occasions. This tendency inferentially may also have been a proximate cause of appellee's injury. Further, there was testimony that this very press had been involved in an earlier accident,

Page 127

the circumstances of which are not clear from the record. 3 Inferentially, claimant's foreman may well have been aware that the 2/11 press put its user at some degree of risk.

While we are aware that the grounds for granting a judgment n.o.v. are not easily met, a motion for such a judgment must be sustained when circumstances so require.

"The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court's determination in ruling upon either of the above motions." Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 74 O.O.2d 427, 430, 344 N.E.2d 334, 338; McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138; Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O.2d 377, 140 N.E.2d 401; Civ.R. 50(A) and (B). However, it is noteworthy that the burden to demonstrate knowledge amounting to a substantial certainty that an injury would take place never leaves the plaintiff. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489.

In the instant case, the trial court, in the course of its written opinion, carefully reviewed the evidence and properly sustained appellant's motion for a judgment n.o.v. Judge Tyack, construing the evidence most strongly in favor of appellee, found that the various acts of negligence alleged by appellee failed to constitute an "intentional [522 N.E.2d 515] tort," as established in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. 4 We agree with his analysis.

Page 128

Judge Tyack, in effect, put forth this question: How can any reasonable person find that Wedge Products and/or its foreman knew, with any degree of certainty, that an injury was bound to occur given the record in this case? 5

The court of appeals properly held that the jury could have found inferentially that " * * * the press repeat was due to overheated brakes and the failure of the pullback guards was due to improper adjustment." What the court of appeals failed to discern was that these conditions were the result of negligence, not intentional misconduct.

The whole concept of actions premised upon intentional torts in the workplace has been the subject of intense interest in this state in recent years. As Justice Herbert Brown pointed out in Kunkler, supra, this court's decision in Jones v. VIP Development Co., supra, leaves questions open with respect to just what constitutes "substantial certainty." In Kunkler, Justice Brown, citing Prosser with approval, adopted the Restatement of the Law 2d, Torts definition of intent and applied it to a case similar to that before us. Justice Herbert Brown, expanding on and explaining the semantic shortcomings of Jones, alluded to the differences among negligence, recklessness, and intentional tort, and specifically approved both the Prosser and Restatement rationales. See, also, Van Fossen, supra.

To establish an intentional tort, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by [522 N.E.2d 516] the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases and becomes less than substantial certainty, the actor's conduct loses the character of intent and becomes mere recklessness. As the probability decreases further and

Page 129

amounts only to risk that the result will follow, it becomes ordinary negligence. Restatement of the Law 2d, Torts, Section 8A, Comment b; Jones v. VIP Development Co., supra, explained; Van Fossen v. Babcock & Wilcox Co., supra; Kunkler v. Goodyear Tire & Rubber Co., supra, followed.

Thus, to establish that an employer has committed an intentional tort against an employee so as to allow the employee to recover damages, a plaintiff-employee must demonstrate by a preponderance of the evidence that the employer or his agent manifested an intent to injure the employee and this intent includes the knowledge and expectation that such an injury is substantially certain to occur.

Therefore, the question in these cases becomes: Weighing the evidence and inferences favorable to the employee, is there reliable, probative evidence to show that the employer intentionally acted in this matter despite a known threat of harm to the employee, using the substantial certainty test noted above? We think it is obvious that such a situation did not prevail in the instant case.

We have already disposed of the legislative effort to "limit" this particular form or cause of action by holding that R.C. 4121.80(G)(1) may not be applied retroactively. 6 Further, it can hardly be argued that legislative efforts to limit, expand, or even abolish common-law actions are facially unconstitutional.

In any event, we hold that the court of appeals erred in reversing Judge Tyack's granting of judgment n.o.v.

Accordingly, the judgment of the court of appeals is reversed and that of the trial court is reinstated.

Judgment reversed.

MOYER, C.J., and WRIGHT and HERBERT R. BROWN, JJ., concur.

HOLMES, J., concurs separately.

LOCHER, SWEENEY and DOUGLAS, JJ., dissent.

HOLMES, Justice, concurring.

The evidence presented in this case readily shows the difficulty that may arise in determining the existence of the so-called intentional tort claimed to have been committed by an employer against his employee. There is little room to doubt that we are here confronted, upon review of the trial court's granting of a motion for judgment n.o.v., with testimonial evidence which, as accepted by the jurors, would establish conduct amounting to recklessness, which is well beyond mere negligence. However, there is a missing link in the proof necessary for the establishment of an intentional tort, a most necessary link, which is evidence that the employer had the required knowledge that the event was substantially certain to occur.

As we stated in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraph six of the syllabus: "To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. * * * However, the mere knowledge and appreciation of a risk--something short of a substantial certainty--is not intent."

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    • United States
    • United States Court of Appeals (Ohio)
    • April 29, 2002
    ...to both motions for directed verdict and motions for judgment notwithstanding the verdict. See Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, 514-515; Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334, 338; Tulloh v. Goodyear ......
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    • United States State Supreme Court of Ohio
    • April 13, 1988
    ...intentional tort. This case should be read in conjunction with Page 119 iKunkler, supra, and Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511. When the three cases are read together, it is apparent that the majority of the court has adopted Section 8(A) of the Rest......
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187 cases
  • Jeffrey N. Brookover and Susan Brookover v. Flexmag Industries, Inc., 02-LW-1926
    • United States
    • United States Court of Appeals (Ohio)
    • April 29, 2002
    ...to both motions for directed verdict and motions for judgment notwithstanding the verdict. See Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, 514-515; Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St.2d 271, 275, 344 N.E.2d 334, 338; Tulloh v. Goodyear ......
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    ...If substantial evidence exists in support of plaintiff's claim, the motion must be overruled. Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, Even construing the evidence most strongly in favor of plaintiff, no evidence shows that Miller was plaintiff's empl......
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    ...intentional tort. This case should be read in conjunction with Page 119 iKunkler, supra, and Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511. When the three cases are read together, it is apparent that the majority of the court has adopted Section 8(A) of the Rest......
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    ...& Wilcox (1988), 36 Ohio St.3d 100 [522 N.E.2d 489] (decided April 14 [sic, 13], 1988); Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124 [522 N.E.2d 511] (decided April 13, 1988); Hunter v. Shenango Furnace Co. (1988), 38 Ohio St.3d 235 [527 N.E.2d 871] (decided August 24, 1988); ......
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