Tulloh v. Goodyear Atomic Corp., 90-2149

• Citation: 62 Ohio St.3d 541,584 N.E.2d 729
• Decision Date: 12 February 1992
• Docket Number: No. 90-2149,90-2149
• Parties: , 7 IER Cases 309 TULLOH, Appellant, v. GOODYEAR ATOMIC CORPORATION, et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 541

62 Ohio St.3d 541

584 N.E.2d 729, 7 IER Cases 309

TULLOH, Appellant, v. GOODYEAR ATOMIC CORPORATION, et al., Appellees.

No. 90-2149.

Supreme Court of Ohio.

Submitted November 20, 1991.

Opinion announced Feb. 12, 1992. ^*

SYLLABUS BY THE COURT

Absent statutory authority, there is no common-law basis in tort for a wrongful discharge claim.

Michael H. Tulloh, appellant, worked at the Portsmouth Gaseous Diffusion Plant as a uranium materials handler from 1976 through 1986. The plant was operated by appellee Goodyear Atomic Corporation ("Goodyear") from 1953 through November 1986. In November 1986, appellee Martin Marietta Energy Systems, Inc. ("Marietta") assumed operations of the plant and has continued to operate the plant since that date. Tulloh alleges that while working at the plant he was exposed to radioactive dust, chips and fumes, causing him injuries including sinusitis, pharyngitis, laryngitis, abdominal pain, cramping, vomiting, nausea and extreme upper respiratory and gastrointestinal dysfunction. He alleges that both employers knew a health hazard existed from his exposure to the radioactive materials. Tulloh also alleges that he had expressed his concern about the safety of the work environment to Marietta. He contends that he made demands that the plant be operated in a manner consistent with statutory, regulatory and societal obligations. In November 1986, Tulloh was terminated by Marietta.

On February 19, 1988, Tulloh filed a complaint in the Pike County Common Pleas Court, alleging intentional tort and wrongful termination. Tulloh bases his intentional tort complaint on his alleged intentional and willful continued exposure to health hazards in the work environment by both his employers despite the fact that appellees knew a substantial certainty of harm to Tulloh existed. Appellant also asserts that his wrongful discharge claim is based in tort because he was fired for demanding a safer work environment. The trial court dismissed the intentional tort count for failure to state a claim and dismissed the wrongful termination count for lack of subject matter jurisdiction because the claim was preempted by Section 301 of the Labor-Management Relations Act, Section 185, Title 29, U.S.Code. The court of appeals affirmed the trial court's ruling on the intentional tort claim, holding that the claim failed because there was no showing that appellees intended for appellant to be injured or that the injury was substantially certain to occur. The court of appeals also held that there is no tort basis for a wrongful discharge claim, but reversed dismissal of the count, finding that the complaint sufficiently alleged a claim for breach of Tulloh's employment contract.

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

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, Waite, Schneider, Bayless & Chesley Co., L.P.A., and Paul DeMarco, Cincinnati, for appellant.

Vorys, Sater, Seymour & Pease, Robert E. Tait and James P. Kennedy, Columbus, for appellees.

Ronald D. Major, Cincinnati, urging reversal in part, for amicus curiae, Ohio Academy of Trial Lawyers.

MOYER, Chief Justice.

This case presents two issues: (1) whether the trial court erred in granting appellees' Civ.R. 12(B)(6) motion to dismiss appellant's claim for intentional tort; and (2) whether the trial court erred in granting appellees' Civ.R. 12(B)(6) motion to dismiss appellant's allegation of wrongful discharge. For the following reasons, we hold that appellees' Civ.R. 12(B)(6) motion was improperly granted on both counts. We therefore reverse the judgment of the court of appeals regarding the intentional tort claim and affirm its judgment regarding the wrongful discharge claim.

I

Intentional Tort

In his complaint, appellant stated:

"8. Plaintiff was exposed to hazardous radioactive dust, chips and fumes due to his position as a uranium materials handle [sic ] for Defendants.

"9. Defendants failed to exercise their duties to establish, maintain and control health and safety standards at the Plant.

"10. Defendant Goodyear concealed critical information and knowledge concerning the injurious effect exposure to the uranium materials being processed at the Plant would have on Plaintiff.

"11. Defendants knew, or should have known, that exposure to uranium and other radioactive materials posed a severe health hazard to Plaintiff.

"12. Defendants intentionally and willfully continued to expose Plaintiff to said health hazards, failed to warn Plaintiff of the hazards, and concealed critical information from Plaintiff and others concerning the work environment.

"13. Defendants['] actions were intentional, willful and committed with an intent to injure and with the belief that injury was substantially certain to occur.

"14. As a direct and proximate result of Defendants' conduct, Plaintiff has suffered from sinusitis, pharyngitis, laryngitis, abdominal plain [sic ], cramping, vomiting, nausea and extreme upper respiratory and gastrointestinal dysfunction, as well as emotional pain and suffering."

After reviewing the complaint, the court of appeals held that:

"Essentially, in the case sub judice, appellant's cause of action alleging an intentional tort is as deficient in facts as was the complaint in Mitchell * * * [v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753] wherein the Supreme Court affirmed a dismissal of the complaint for failure to state a claim upon which relief may be granted. Likewise, we hold that appellant failed to state a claim upon which relief could be granted under either the common law standard of intentional tort or the statutory standard."

As noted by the court of appeals, this court has addressed the pleading requirements in an intentional tort claim against an employer in Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753. In the syllabus of that case, we held that:

"A claim of intentional tort against an employer will be dismissed as failing to establish that the pleader is entitled to relief 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."

In Mitchell, however, the case arose out of the fatal shooting of a clerk who worked in a Lawson Milk Company ("Lawson") store. The complaint alleged that Lawson had committed an intentional tort by failing to provide adequate security or training in handling violent situations. In Mitchell, we found that:

" * * * The facts are easy to grasp and are undisputed: a death resulted from the hold-up of a convenience store. Even if Lawson failed to equip its stores with security devices or provide its employees with training in handling violent situations, it does not follow that Lawson knew that injury to its employees was certain, or substantially certain, to result. This is so, even if we assume that the Lawson store was in a high-crime-rate area." Id. at 192-193, 532 N.E.2d at 756.

When construing a complaint upon a motion to dismiss for failure to state a claim, it is presumed that all factual allegations in the complaint are true and it must appear beyond doubt that the plaintiff can prove no set of facts warranting recovery. O'Brien v. Univ. Community Tenants Union (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. In Mitchell, it was found that when all the facts were taken as true, there could be no recovery. This is not the situation in the case at bar. Tulloh alleged that appellees knew that exposure to radioactive materials at the plant would be hazardous, and that appellees intentionally concealed this information from Tulloh with the knowledge that injury was substantially certain to occur. Accepting these allegations as true, as we must, Tulloh's complaint fulfills the requirements necessary to state a claim of intentional tort. As was stated in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph two 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. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent." While Tulloh ultimately states in his complaint his conclusion that appellees' acts were intentional, the factual allegations in the complaint also lead to the same conclusion.

The court of appeals erred by failing to take appellant's allegations in his complaint as true for the purposes of the Civ.R. 12(B)(6) motion. Appellant averred in his complaint that appellees concealed information regarding the dangers of the radioactive materials after appellees became aware of the risks. The court of appeals stated that: " * * * These are mere conclusions supported by no underlying facts. * * * " What the court of appeals in fact is requiring is that a plaintiff provide, along with his complaint, proof that the allegations are true. Whether appellees concealed information knowing that injury was substantially certain to occur would certainly be a disputed issue at trial, but there is no requirement that all evidence supporting these allegations be filed with the plaintiff's...