Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case. Read the analysis here.

On June 20, 2012, the Supreme Court of Ohio heard oral argument in the case of Houdek et al. v. ThyssenKrupp Materials, NA, 2011-1076.

Bruce Houdek worked at ThyssenKrupp’s warehouse. He was assigned to light duty because of a previous injury. He was tagging inventory in a very narrow aisle, when he was crushed against the aisle racks by a side-loader. Houdek had told the side-loader operator he would be working in the aisle, but the operator forgot, and could not see Houdek because of the design of the machine. According to Houdek, a few days before the accident, the side-loader operator had expressed his concerns to ThyssenKrupp management about the dangers of operating the side-loader in a warehouse aisle when another employee was working in the same aisle on foot.

Houdek filed an employer intentional tort claim against ThyssenKrupp, seeking damages for his injuries. The trial court granted summary judgment in favor of ThyssenKrupp, finding that Houdek was unable to prove the requisite intent to injure.

R.C. 2745.01 has three parts pertinent to this appeal. Subsection (A) states that an employer shall not be liable for an intentional tort unless plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur. Subsection (B) defines substantial certainty to mean “that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Subsection (C) creates a rebuttable presumption of intent to injure by the employer in two circumstances: an employer’s removal of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance.

In reversing the trial court for applying the definition of substantially certain set forth in R.C. 2745.01(B), the Eighth District Court of Appeals, found that “it could not harmonize” the definitions in the two sections because “substantially certain” and “deliberate intent to injure” cannot mean the same thing, and thus must have been the result of “a scrivener’s error”.  The appeals court also held that the requisite intent to injure can be proven by what a reasonable, prudent employer would believe. Read the oral argument preview of this case here.

It’s hard to believe that anything more can be said about the employer intentional tort after Kaminski v. Metal and Wire Co., and Stetter v. R.G. Corman Derailment Services, LLC, which upheld the constitutionality of the latest iteration of the employer intentional tort statute, not to mention all the cases preceding them, starting with Blankenship v. Cincinnati Milacron Chem. Inc. For the complete historical saga, read this post. But the Ohio high court insisted in Stettler that in enacting the newest version of R.C. 2745.01, the General Assembly had not killed off the employer intentional tort.  To which Justice Pfeifer had retorted—“what’s left?” At this point, euthanasia would be kind.

At oral argument absolutely no one advocated for the Eighth District’s “scrivener’s error” analysis.  And Justice O’Donnell asked each of the three lawyers who argued his opinion about that. (no takers). Clearly, that one is off the rails.  So, Houdek’s lawyers (Houdek’s argument was split between Houdek’s lawyer and amicus counsel for OAJ) had to revert to the “right for the wrong reason” approach.

Counsel for ThyssenKrupp argued that the one and only way to prove an employer intentional tort under subsection (A) is to prove specific intent. Subsection (A) does refer both to a direct intent and a substantial certainty intentional tort, since that is how the common law developed. But in enacting the current version of 2745.01, the legislature clearly intended to reign in the substantial certainty intentional tort.  It did so by writing a very narrow definition in subsection (B) of how to prove that tort. In order to establish liability under the substantial certainty prong of R.C. 2745.01(A), an employee must present evidence that the employer acted with deliberate intent. The Court already correctly recognized in Stettler and Kaminski that there is only one way to prove an employer intentional tort under subsection (A), and that is by proof of specific intent. And the Court of Appeals appeared to ignore that holding in this case. He also argued  that there is no subsection (C) claim in in this case, as there was no evidence raised at the trial court to support the specific requirements of that subsection. Finally, he asked the Court to reject the “reasonable employer” test adopted by the court of appeals, as totally inconsistent with the statutory intent.

Counsel for Houdek reminded the Court (as if that were necessary) that it had held in Kaminsi and Stetter that although the statute had curtailed the common law, it hadn’t killed it. The statute clearly provides two ways, not one, to prove intent for an employer intentional tort, plus the alternative requirements of subsection (C). Paragraph (A) provides two terms, each of which is further defined. Subsection B further defines substantial certainty. No one ever admits he or she deliberately intends to harm; that has to be proven by looking at all the surrounding objective facts and circumstances. In this case, the combination of the warnings to the employer combined with the employer’s directives to go do the job anyway was enough to get past summary judgment. And Houdek absolutely  did present a subsection (C) claim in this case.

Amicus counsel argued that the Court of Appeals was not defying Stetter and Kaminski­- the appeals court was just taking the Supreme Court at its word, trying to figure out exactly what was left of the employer intentional tort. Subsection A preserves the two part test –direct intent and substantial certainty—while Subsection B provides a new definition of substantial certainty, which now means deliberate intent. But it is still a two part test.  The fact finder must be allowed to infer the intent to injure from the surrounding circumstances. The Court of Appeals did the best it could with a confusing statute and came up with a sensible solution.

A Scrivener’s Error?  You’ve Got to Be Kidding????

Justice O’Donnell asked everyone.  No takers. Not even the appellees.

Haven’t we Already Decided the issues in this case with Kaminski?

Asked Justice Lanzinger.

And if we have, added Justice O’Donnell, what is left for the Court to write in this case? Are we dealing with an errant court of appeals which is refusing to follow our mandates? ( professor’s note. Justice O’Donnell always seems  especially aggressive about cases from the Eighth District, on which he once served).  How could the Court of Appeals decision be squared with Kaminski?

Justice Stratton commented that the court of appeals decision sounded like a dissenting brief in Kaminski. The appeals court clearly doesn’t like Kaminski and clearly tried to find a way around it and to get back to some version of substantial certainty.  What should the Supreme Court do about that errant child?

 Proving an Employer Intentional Tort.  Let Us Count the Ways.

Justice Lanzinger noted there were two different definitions within the statute—what did that mean? Was it just to encompass all that the Court has done with its prior cases? And what exactly is the difference between specific intent and deliberate intent?

The Ghost of Justice Andy Douglas.

Justice Pfeifer, who made it clear in Kaminski and Stetter that he thought the current statute was exactly the same as the one previously declared unconstitutional, asked ThyssenKrupp’s lawyer for an example of any employer intentional tort that would get past summary judgment that wouldn’t be a felony.  Justice Douglas used to have a lot to say on that subject. Take a look at  Johnson v. BP Chemicals Inc.

Does this Tort Still Exist?

Asked Justice Pfeifer again, who made clear in Kaminski and Stetter  that he thinks if it does, it is on life support.

Was there a Subsection C violation in this case?

Justice Lanzinger asked if such a violation would be co-terminus with a VSSR violation.

Justice O’Donnell and Justice McGee Brown both asked if failing to provide safety equipment was the same as removing it.

Isn’t What Happened in this Case Just Negligence?

Asked Justices Cupp and McGee Brown.  What moves this up to the level of intentional conduct? And Justice Lanzinger added that the legislature intended to keep anything sounding in negligence within the workers’ compensation regime.

How do you factor in the fact that the side-loader operator just forgot Houdek was working in the aisles. Did he deliberately forget?  Was that the theory? Asked Justice Stratton.

Where is the Evidence of Deliberate Intent in this Case?

Chief Justice O’Connor asked if there were enough facts to get past summary judgment on this issue.

Justice Cupp, who is seldom hostile, was so in this case to Houdek’s counsel.  He of course authored Kaminski and Stetter. Is deliberate intent the same thing as an employer wanting an employee to be injured? If not, why not? Was Houdek’s counsel saying that in this case the employer wanted the employee to be injured? What combination of factors showed that?

Is it just the fact they were in close proximity to one another, asked the Chief.  Is that what Houdek is basing his case on?

Justice Stratton, clearly buying none of this, asked, if the plaintiff’s theory of intent was,  “I warned my operator but I shouldn’t expect my operators to heed my warnings. My employees might forget to heed my warnings and therefore I intended this act.”

How it Looks from the Bleachers

Fuhgettaboutit. This tort case is deader than a mackerel, and the tort itself may be, too.  Other than subsection (C), which still has traction, (although not in this case), the Court might as well take it off the life support it left it hanging on after Kaminski  and Stetter,  and kill it for good. It’s hard to imagine any set of facts, as Justice Pfeifer asked, that now state a claim for an employer intentional tort. As far as the Eighth District Court of Appeals decision,  I think there may be some harsh language in the offing for pretty much ignoring Kaminski  and Stetter.  Courts of Appeals can’t do that.

Here’s Student Contributor Elizabeth Chesnut’s take:

Because the Justices focused their questions on the Kaminski decision, it seems that the Court will likely review the case in light of the plain language of Kaminski and the statute and reverse the Eighth District’s reversal of summary judgment.