Sally Kerans and Lewis Kerans v. Porter Paint Co., Inc.

• Decision Date: 11 April 1990
• Docket Number: 90-LW-1203,C-880761.
• Parties: Sally KERANS and Lewis Kerans, Plaintiffs-Appellants, v. PORTER PAINT CO., INC., Defendant-Appellee.
• Court: Ohio Court of Appeals

Sally KERANS and Lewis Kerans Plaintiffs-Appellants, v. PORTER PAINT CO., INC., Defendant-Appellee.

No. C-880761. Judgment affirmed in part, reversed in part and cause remanded, 61 Ohio St. 3d 486 (1991)

90-LW-1203 (1st)

Court of Appeals of Ohio, First District Hamilton

April 11, 1990

Civil Appeal from Court of Common Pleas.

James D. Dennis, Dayton, and Glenda M. Daker, Cincinnati, for plaintiffs-appellants.

R. Gary Winters, and John J. Finnigan, Jr., Cincinnati, for defendant-appellee.

DECISION

PER CURIAM

This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcript of the proceedings, the assignments of error, the briefs and the arguments of counsel.

Plaintiffs-appellants, Sally Kerans and her husband Lewis Kerans, appeal from the trial court's grant of summary judgment in favor of Sally's employer, defendant-appellee Porter Paint Company, Inc. ("Porter Paint"), on her claim that Porter Paint intentionally and tortiously injured her by subjecting her, in the course of her employment, to sexual harassment by a co-employee, Al Levine. The Keranses allege that the trial court erred by finding that Porter Paint's awareness of Levine's past instances of sexual misconduct did not amount to an intent to injure Sally, and they claim that the trial court should not have ruled on their remaining claims of assault and battery intentional infliction of emotional distress, negligent creation of an unsafe environment for an invitee under the "dual capacity" doctrine, and loss of consortium. We find neither contention to be well taken, and we affirm the judgment of the trial court.

The events leading to this lawsuit began in January 1973, when Porter Paint hired Al Levine to manage one of its stores in Middletown, Ohio. Shortly after being hired, he moved to Porter Paint's Kenwood store in Cincinnati, where he worked until his termination. Between the time of his initial hiring and the time of the incidents in question, Mr. Levine made sexual advances of varying degrees of impropriety toward at least two and perhaps as many as nine female employees. Plaintiff-appellant Sally Kerans was hired by Porter Paint in 1971, and she worked in a variety of capacities before being assigned to work as a decorator with Mr. Levine on a part-time basis at the Kenwood store on September 3, 1985. As a decorator, Mrs. Kerans was to assist customers in selecting Porter Paint products, and incidentally would assist Levine in the management of the store. However, she was apparently not under his supervision or subject to his control, and instead reported to another person in the corporate structure.

The first day of Sally Kerans's work at the Kenwood store was uneventful. On the second day of Kerans's work with Levine, Thursday, September 5, 1985, she was subjected to a series of incidents of sexual harassment by Mr. Levine which she claims left her suffering severe stomach pain nervousness, and sleeplessness.®1¯ At various times that day, Levine fondled Kerans's breasts, placed his hand on her thigh beneath her dress, placed her hand on his penis, and finally, at the end of the day, masturbated in front of her. Levine also told Kerans that he was contemplating suicide, which Kerans discouraged. Kerans did not immediately report the incidents to Porter Paint management, and remained in the store until the close of business. Although Levine was due to take a vacation the following day, he instead sought psychological treatment and informed his superiors at Porter Paint that he had done "something awful" to Sally Kerans. When questioned about the incident by a Porter Paint supervisor on the following Monday, Kerans responded that she had sought legal advice and could not discuss the matter further. On September 30, 1985, Al Levine resigned at Porter Paint's request. Kerans continued to work for Porter Paint as a decorator. Kerans and her husband Lewis filed suit against Porter Paint and Levine, but later dismissed Levine pursuant to their settlement with him.

Sally and Lewis Kerans assert, as their first assignment of error, that the trial court erred by granting summary judgment in favor of Porter Paint on the issue of whether it was liable for an intentional tort as an employer. Porter Paint argued below that recovery against it is precluded because Levine did not act within the scope of his employment. See Miller v. Reed (1986), 27 Ohio App.3d 70, 499 N.E.2d 919. Alternatively, Porter Paint argued that recovery is barred by R.C. 4123.74,®2¯ which provides immunity to employers contributing to Ohio's Workers' Compensation fund, and that the exception to that immunity for intentional torts does not apply because Levine's conduct and Kerans's injuries were not "substantially certain to occur" under the standards of Van Fossen v. Babcock and Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489.®3¯ The Keranses claim that Porter Paint's awareness of Levine's prior acts of sexual misconduct raised at least a question of material fact whether Porter Paint was substantially certain that Sally Kerans would be injured when it assigned her to work with Levine. We do not agree.

Assuming for purposes of argument only that a question of fact could preclude summary judgment on the issue of whether Levine acted within the scope of his employment, we find that recovery in any event is barred by R.C. 4123.74 because there is no such question with regard to Porter Paint's intent to injure Kerans,...