Update: On October 28, 2014, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here.

On June 25, 2014, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio ex. rel. Donald Yeaples and Deborah Yeaples v. Honorable Steven E. Gall et. al., 2013-0941. The literal issue in the case is the proper venue for this tort claim, but the real issue is whether a substantial certainty workplace intentional tort can be brought against a fellow-employee.  Like the proverbial dead horse, we are still beating the employer intentional tort to death.

Case Background

Relator Donald Yeaples worked as a laborer for respondent Precision Directional Boring LLC (Precision) alongside co-respondent Gary Cole. Precision was performing work involving the identification of residential connections with storm, sanitary and water pipes in order to bore a path for a new water main. When residents of a home needed to get out of their blocked driveway, they notified Yeaples, who then moved behind a Coyote mini excavator operated by Cole to guide the homeowners out of the driveway. Yeaples was hit by the excavator and injured; he asserts the injury occurred in part because the excavator was not equipped with safety devices such as a back-up alarm or mirror.

The injury occurred in Summit County. Precision’s corporate office is located in Medina County. Cole is a resident of Cuyahoga County. Yeaples and his wife filed a workplace intentional tort claim against Precision and Cole in Cuyahoga County, basing venue on Cole’s residence in that county.

At this point, a game of ping-pong started between the trial courts in Cuyahoga and Medina Counties. First, Precision filed a Motion to Dismiss, or in the alternative, a Motion to Transfer for Improper Venue. Precision’s argument for improper venue was that the injury occurred in Summit County, and its business is located in Medina County, making either location a more appropriate venue for the case. Additionally, Precision argued Yeaples failed to assert a claim recognized by Ohio law against Cole which would anchor the case in Cuyahoga County. The Cuyahoga County Court of Common Pleas granted transfer of the personal injury action to Medina County.

Next, Yeaples requested that the Medina County Court of Common Pleas refuse the transferred case and send it back to Cuyahoga County. Following oral argument on the matter, the Medina Court transferred the case back to Cuyahoga County.

Once the case returned to Cuyahoga County, Precision and Cole requested a refusal of venue and affirmation of the original order to transfer venue to Medina County. At this time, Precision and Cole argued venue was improper because Cole was nothing more than a nominal party to the suit. Judge Steven Gall then issued an order to once again transfer the case back to the Medina County Court of Common Pleas.

In response, Yeaples filed an action in the Eighth District Court of Appeals seeking writs of mandamus and procedendo which would require Judge Gall to vacate both orders transferring the case to Medina County. Yeaples also filed a Motion to Stay in Medina County; the Medina County Court of Common Pleas granted the request to stay the proceeding.

The Eighth District Court of Appeals issued the writs of mandamus and procedendo. In doing so, the appellate court found Yeaples had properly stated a claim for a workplace intentional tort against fellow employee Cole; because Cole resides in Cuyahoga County, venue is proper and the case should not be transferred on the basis of improper venue. In doing so, the appellate court also determined Cole was not merely a nominal party to the lawsuit. Precision and Cole filed the appeal to the Supreme Court of Ohio.

Key Statute and Precedent

Civ.R. 3(B) provides places where venue is appropriate, including the county where the defendant resides, the county in which the defendant has his principal place of business, and a county in which the defendant conducted activity that gave rise to the claim for relief. Proper venue can lie in more than one county. When more than one defendant is involved in an action, Civ.R. 3(E) provides that “the forum shall be deemed a proper forum, and venue in the forum shall be proper, if the venue is proper as to any one party other than a nominal party. . . .”

Varketta v. Gen. Motors Corp., 34 Ohio App.2d 1 (8th Dist. 1973) (Civ.R. 3(B) provides a list of alternatives, and each alternative may establish proper venue. The plaintiff may choose where to bring the action, so long as one of the provisions in Civ.R. 3(1) through (9) provides a proper forum. In cases with multiple defendants, if venue is found to be proper as to one party, venue is proper to all parties in the case.)

Chambers v. Merrell-Dow Pharmaceuticals, Inc., 35 Ohio St.3d 123 (1988) (Ohio does not recognize the doctrine of forum non conveniens as a legitimate justification for transferring a lawsuit from one Ohio county to another.)

State ex. rel. Smith v. Cuyahoga County Court of Common Pleas, 2005-Ohio-4103 (builds upon Chambers to reiterate that transfer of a properly venued case may only occur when a fair trial cannot be conducted in the county chosen by the plaintiff.)

Smith v. Inland Paperboard & Packaging, Inc., 2008-Ohio-6984 (11th Dist.) defines a nominal party under Civ.R. 3(E) as a party “whose presence in the action is either: (1) merely formal; or, (2) unnecessary for a just and proper resolution of the claim(s) presented.”

Precision’s and Cole’s Argument

The gravamen of the argument of Precision and Cole is that Ohio does not allow an employee to allege a substantial certainty workplace intentional tort against a fellow employee, which is what Yeaples alleged in his complaint.  Workplace intentional tort claims can only be brought against employers. The Supreme Court of Ohio has never extended this type of claim to fellow employees. Cole is thus a nominal defendant only. Yeaples did not state a viable or cognizable claim against Cole, such as battery or assault, Cuyahoga County is an improper venue for the case, and the writs issued were improper.

Venue should be applied through Precision’s contacts to the case. Proper venue would lie either in Summit County (where the incident occurred) or Medina County (where Precision is located). Analogizing to Smith v. Inland Paperboard, Precision asserts Cole is a nominal party because Yeaples did not set forth allegations against Cole, and possibly included Cole as a party strategically to forum shop in order to get the case into court in Cuyahoga County.

Finally, Precision and Cole argue that when the Cuyahoga County Clerk of Courts complied with Judge Gall’s transfer order and the Medina County Clerk of Courts and Common Pleas Court took jurisdiction, the mandamus complaint was rendered moot. Thus the Eighth District did not have jurisdiction to issue the respective Writs and its judgment and order is void.

Yeaples’ Argument

The Yeaples argue that this is a garden variety venue case, and that  venue has always been proper in any county where a bona fide defendant resides. Neither of the two Cuyahoga County trial court judges who had this case found that Cole was merely a nominal party, nor that the complaint failed to state a valid claim against him, nor was he dismissed from the case. A plaintiff has always had the right to select the venue for a claim. It is not uncommon that more than one section of the venue statute applies in a given case, as it does in this one.  In this case the selection of the county where one of the defendants resided was totally appropriate under the venue rule.

Ohio does not recognize the doctrine of forum non conveniens to justify the transfer of cases from one county to another within the state. As set forth in State ex. rel. Smith, absent a showing that a fair trial cannot be conducted in the county chosen by a plaintiff, an action in which venue is proper under Civ.R. 3(B) cannot be transferred. A finding of proper venue for one defendant makes the venue proper for all defendants in the case.

The Yeaples argue that none of the trial or appellate judges in the case has found Cole to be merely a nominal party. The appellate court saw Cole’s role in the case as more than nominal, because of his active participation in the tort. Therefore, Cole’s role goes beyond “existing in name only” or being “merely formal,” making venue in Cuyahoga County proper.

Once the focus shifts to the underlying tort, Yeaples argues that Blankenship v. Cincinnati Milacron Chems. and its progeny recognize that notwithstanding the immunity furnished to co-workers by R.C. 4123.741, an individual co-worker can be held liable for a workplace intentional tort when the co-worker has committed an act which was substantially certain to injure the plaintiff. In this case Cole fully understood the dangers of Yeaples working behind a backing excavator, particularly one with inoperable safety features, making Cole more than a nominal party to the case.

Finally, Yeaples argues that since the current intentional tort statute, R.C. 2745.01, with its deliberate intent requirements, unarguably applies only to actions against an employer, the common law standards established in Blankenship and Fyffe  continue to control claims against co-workers, and have not been abrogated.

Procedurally, the Yeaples argues that the respondents are trying to establish a heightened pleading standard, contrary to the plain language of Civ. R. 8(A), and that there is no authority for this position. They also argue that the proposed proposition of law on mootness and jurisdiction is “largely incomprehensible.”

Judge Gall’s Position

The Cuyahoga County Prosecutor filed a brief for Judge Gall, which indicates the Judge “does not believe that the decisional process in this case will be advanced materially by his further legal briefing,” respects the decision of the Court of Appeals, but agrees with the arguments of Precision and its amicus, and will comply with the mandate issued by any superior court.

Precision and Cole’s Proposed Propositions of Law

1. Where a Relator has not presented a recognized, justiciable cause of action, no clear legal right to relief exists and a request for either a writ of mandamus or procedendo must be denied.

2. To be justiciable, a complaint by an individual alleged to have been injured by a fellow employee in the course and scope of employment, must set forth colorable facts as to each element of a recognized common law intentional tort, i.e. assault, battery, false imprisonment, or trespass.

A. Ohio law does not recognize a substantial certainty intentional tort against a fellow employee.

B. Because Relator did not present a recognized cause of action in his personal injury complaint against his fellow employee, Respondent, Gary Cole, venue was proper in Medina County, not Cuyahoga County.

3. When a judgment has been completely performed, any attempt to collaterally attack that judgment is subject to the mootness doctrine and all orders attempting to vacate that judgment are void.

Amicus Curiae

The Ohio Association of Civil Trial Attorney’s (OATCA) filed an amicus brief in support of Precision and Cole, presenting the following proposed proposition of law:

The common law workplace intentional tort claim created in Blankenship and limited by R.C. 2745.01 is a direct claim against an employer. No such claim exists against a fellow employee. (Blankenship v. Cincinnati Milacron Chems., 69 Ohio St.2d 608 (1982); R.C. 2745.01, construed.)

OATCA’s brief is unrelated to the venue arguments. It adds to the underlying tort argument, supporting Precision and Cole’s primary strategy. OATCA advocates that applying the workplace intentional tort against a fellow employee would be unprecedented and that the Court should reject any conclusion which expands the application of that tort.

Student Contributor: Rebecca Campbell