Van Fossen v. Babcock & Wilcox Co.

• Decision Date: 13 April 1988
• Docket Number: No. 87-624,87-624
• Citation: 522 N.E.2d 489,36 Ohio St.3d 100
• Parties: VAN FOSSEN, et al., Appellees, v. BABCOCK & WILCOX COMPANY, Appellant, et al.
• Court: Ohio Supreme Court

Page 100

36 Ohio St.3d 100

522 N.E.2d 489

VAN FOSSEN, et al., Appellees, v. BABCOCK & WILCOX COMPANY, Appellant, et al.

No. 87-624.

Supreme Court of Ohio.

April 13, 1988.

Syllabus by the Court

1. The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apply. Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution. (Kiser v. Coleman [1986], 28 Ohio St.3d 259, 262, 28 OBR 337, 339-340, 503 N.E.2d 753, 756, approved and followed; Wilfong v. Batdorf [1983], 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185; and French v. Dwiggins [1984], 9 Ohio St.3d 32, 9 OBR 123, 458 N.E.2d 827, to the extent inconsistent herewith, modified.)

2. The issue of whether a statute may constitutionally be applied retrospectively does not arise until there has been a prior determination that the General Assembly has specified that the statute so apply. R.C. 4121.80 contains the clearly expressed intent of the General Assembly that it be applied retrospectively.

3. Analysis of whether a statute is unconstitutionally retroactive in violation of Section 28, Article II of the Ohio Constitution requires an initial determination of whether that statute is substantive or merely remedial. While in some cases the line between substantive and remedial may be difficult to ascertain, these terms, as applied, provide readily distinguishable contours. (Wilfong v. Batdorf [1983], 6 Ohio St.3d 100, 6 OBR 162, 451 N.E.2d 1185, to the extent inconsistent herewith, overruled.)

4. R.C. 4121.80(G) removes an employee's potential cause of action against his employer by imposing a new, more difficult standard for the "intent" requirement of a workers' compensation intentional tort than that established in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. This new standard constitutes a limitation, or denial of, a substantive right, and consequently causes the statute to fall within the ban against retroactive laws established by Section 28, Article II of the Ohio Constitution. (Smith v. New York Central RR. Co. [1930], 122 Ohio St. 45, 170 N.E. 637; State, ex rel. Slaughter v. Indus. Comm. [1937], 132 Ohio St. 537, 8 O.O. 531, 9 N.E.2d 505; and Weil v. Taxicabs of Cincinnati, Inc. [1942], 139 Ohio St. 198, 22 O.O. 205, 39 N.E.2d 148, approved and followed.)

5. Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty and not just a high risk; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.

6. 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. Where the risk is great and 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. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [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 OBR 246, 472 N.E.2d 1046, explained.)

7. Upon motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. However, in that Civ.R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Accordingly, in an action by an employee against his employer alleging an intentional tort, upon motion for summary judgment by the defendant employer, the plaintiff employee must set forth specific facts which show that there is a genuine issue of whether the employer had committed an intentional tort against his employee.

On February 21, 1983, appellee Robert Van Fossen, an employee of appellant, Babcock & Wilcox, a McDermott Company, was working on a gear-driven position manufactured by Aronson Machine Company. A set of steps had been welded to the rear of the machine, leading up to a platform on which Van Fossen was working. After working approximately one hour, Van Fossen, while backing down these steps, slipped and fell backwards. He incurred serious injuries. Based upon his injuries, Van Fossen applied for and apparently received workers' compensation benefits.

The subject steps had been welded onto the platform in 1968 by David K. Bailey, a fellow employee of Van Fossen. Bailey designed the steps and he installed them both for his own convenience and the convenience of others, at a time when he was assigned to use the machine. He stated that he had never had any problem in the use of the steps, and that there had never been any expressions of concern about the steps from federal safety inspectors.

On February 20, 1985, Van Fossen and his wife brought a tort action and an action for loss of consortium against Babcock & Wilcox. On February 25, 1986, Babcock & Wilcox filed a motion for summary judgment. In response, the Van Fossens averred, in effect, that the employer knew of the installation of the steps, knew that the steps were dangerous in that other employees had fallen from such steps, and yet continued to allow the use of the steps by its employees. This, concluded the Van Fossens, constituted an intentional tort as enunciated by this court in Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and as further defined in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, at paragraph one of the syllabus, to be "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur."

After considering the motion for summary judgment, the trial court granted the motion in favor of Babcock & Wilcox. In the court's view, reasonable minds could not conclude that the employer knew to a substantial certainty that an accident would occur from the use of the steps.

The Van Fossens filed a notice of appeal with the trial court on July 1, 1986. Thereafter, Babcock & Wilcox filed a cross-assignment of error in defense of its summary judgment. Therein, Babcock & Wilcox suggested as an alternative argument that even if issues of fact were presented which were relevant in light of prior case law, the judgment of the trial court should yet be affirmed on the basis of R.C. 4121.80, which became effective on August 22, 1986, i.e., while the appeal was pending.

On February 11, 1987, the court of appeals reversed the grant of summary judgment, finding that there was a justiciable issue of "substantial certainty of proximate harm," and remanded the cause to the trial court for further proceedings. The court also concluded that R.C. 4121.80 was inapplicable "to cases pending on appeal."

The court of appeals, finding its decision to be in conflict with the decision rendered by the Court of Appeals for Cuyahoga County in Taylor v. Academy Iron & Metal Co. (Dec. 1, 1986), No. 51305, unreported, appeal pending in No. 87-127, certified the record of the case to this court for review and final determination.

Scanlon & Gearinger Co., L.P.A., James A. Rudgers and Terence E. Scanlon, Akron, for appellees.

Roetzel & Andress and George W. Rooney, Jr., Akron, for appellants.

Vorys, Sater, Seymour & Pease Robin R. Obetz and Bruce L. Ingram, Columbus, urging reversal for amicus curiae, Ohio Self Insurers Assn.

HOLMES, Justice.

At the outset, we observe that this case presents two issues concerning actions by employees against their employers grounded upon an alleged intentional tort: first, whether the recently enacted provisions of R.C. 4121.80, placing various conditions upon all employer-employee intentional tort actions, may be applied retrospectively to cases awaiting decision in a court of appeals on the effective date of that statute; and second, whether summary judgment, in the event of the non-applicability of R.C. 4121.80, was erroneously granted in this case. We answer both queries in the negative, for reasons set forth hereinafter, and accordingly reverse the appellate court.

I

Appellant argues that the recent amendment to the Workers' Compensation Act, R.C. 4121.80 (Am.Sub.S.B. No. 307, effective August 22, 1986), applies, by its own terms, to cases pending in a court of appeals on the effective date of the statute. R.C. 4121.80(H) provides:

"This section applies to and governs any action based upon a claim that an employer committed an...