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

On June 25, 2014, the Supreme Court of Ohio heard 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 involves the granting of writs of mandamus and procedendo over the proper venue for this tort claim, but the subtext is whether a common law substantial certainty workplace intentional tort can be brought against a fellow-employee.

Case Background

Relator Donald Yeaples, a resident of Lorain County, and Co-Respondent Gary Cole, a resident of Cuyahoga County, worked for Respondent Precision Directional Boring LLC (Precision). Precision’s principal place of business is in Medina County.

Precision was performing work in Summit County 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.

Procedural Posture

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. The gravamen of the venue dispute is whether Yeaples alleged a cognizable tort claim against fellow employee Cole.

Precision and Cole moved to transfer the case to Medina County, arguing that Cole was a nominal party only, making venue improper in Cuyahoga County.  Dueling motions and orders ensued, with the case ping-ponging back and forth between the trial courts in Cuyahoga and Medina County. Ultimately, Yeaples filed an action in the Eighth District Court of Appeals seeking writs of mandamus and procedendo which would require Judge Gall, of the Cuyahoga County trial court, to vacate both orders transferring the case to Medina County and keep the case.

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.

Read the oral argument preview of the case here.

Useful Precedent

Blankenship v. Cincinnati Milacron Chem. Inc., 69 Ohio St. 2d 608 (1982) (an employee is not precluded either by Article II Section 35 or by R.C. 4123.74 from bringing an intentional tort claim against his or her employer because injuries received by intentional conduct are not incurred in the course of employment)

Fyffe v. Jeno’s Inc., 59 Ohio St. 3d 115 (1991) (establishing elements of common law substantial certainty intentional tort)

Civ.R. 3(B) provides places where venue is appropriate. 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…”

At Oral Argument

Respondents’  (Precision and Cole) Argument

In any mandamus action, the relators must show a clear legal right and entitlement to the writ requested. Here that would be dependent on whether or not Yeaples can present a claim for a workplace intentional tort against Cole. He cannot. The venue issue here is inextricably intertwined with whether a cognizable cause of action has been pled against Cole. None of the cases leading up to Fyfee, nor Fyfee itself support such a claim. The Fyfee line of cases–which have been abrogated by the General Assembly–don’t apply at all to an employee-to-employee intentional tort situation. In order to maintain the action against a co-employee, the injured employee would have to plead a common law intentional tort like assault, battery, trespass or intentional infliction of emotional distress. Yeaples did not do so. Thus Cole is only a nominal party, and venue in Cuyahoga County is improper.

Relators’ (the Yeaples) Argument

The only question before the Court is whether Cole is a nominal party.  If he isn’t, then the case belongs in Cuyahoga County. All of the allegations in the complaint except the one alleging deliberate removal of an equipment safety guard under R.C. 2745.01(C) were lodged against both Cole and Precision. The injury occurred during the course and scope of employment. The workplace just happened to be the location for this tort.

When Cole backed the excavator, injury to Yeaples was substantially certain to occur.  Anything done with a substantial certainty of harm is an intentional tort. Cole’s liability is for a common law substantial certainty intentional tort. This is a cognizable claim, and thus Cole is not just a nominal party. The claim in Blankenship itself was not just against the employer, but against several employees. The present statutory requirement of deliberate intent to harm applies only to employers, not fellow employees. So while Precision can argue that, Cole cannot.

What Was On Their Minds

Dueling Venues

Is the case in limbo now in Medina County asked Chief Justice O’Connor? What was the rationale for wanting to go to Medina as opposed to Cuyahoga County? Is geography really the only concern here?

Aren’t we here because the appeals court said, hear this case in Cuyahoga County, asked Justice O’Neill? And all the rest will be sorted out in the proper venue?

Nominal Party

What exactly does that mean, asked Justice O’Neill?

Wasn’t Cole the operator of the machine that caused the injury, asked Chief Justice O’Connor?

If Judge Gall gets the case in Cuyahoga County, but decides there is no cause of action and dismisses Cole, where does that leave Yeaples, asked Justice O’Donnell? (good question, your honor!)

Plaintiffs’ Complaint

Isn’t Ohio a notice pleading state, asked Justice O’Neill? Is there any  requirement that anything be proven at the pleading stage? Isn’t the word “defendant” plural throughout the complaint?

If a common law intentional tort, like assault or battery had been pled against Cole, would this be a different situation, asked Justice Lanzinger? Would the complaint have to allege that the injury is not compensable under workers comp? Would that have to be part of the complaint to avoid judgment on the pleadings? Was it clear from the complaint that Yeaples was asserting a common law claim against Cole?

Was there a cause of action pled against Cole in the plaintiffs’ complaint, asked Justice O’Donnell? If so, what was it, and did it occur in the course and scope of employment? Is it amenable to workers’ compensation?

How could Yeaples defeat a motion to dismiss without specifically alleging a common law intentional tort like assault or battery asked Justice French?

Intentional Torts Between Employees

Can an intentional tort other than the traditional common law torts lie between employees asked Chief Justice O’Connor? Even if Yeaples pled a common law intentional tort, how does that reach his employer? Wouldn’t an intentional tort take this out of the course and scope of employment? Is Yeaples really alleging that Cole intended to back into him?

Hasn’t substantial certainty now been modified to be deliberate intent, asked Justice Lanzinger? To be properly pled, wouldn’t Yeaples have to allege Cole tried to mow him down? Can you get to a jury with a workers’ comp claim without deliberate intent?

What does the intentional tort get Yeaples that assault or battery wouldn’t, asked Justice French?

Is this just an attempt to expand Blankenship when employees hurt each other, asked Justice O’Neill?  It may not be workers’ comp, but still might be compensable?

Were there actions alleged against fellow employees in Blankenship asked Justice O’Donnell?

Writs of Mandamus and Procedendo

Isn’t the case on appeal just about these writs, and not about the substance of what an employer intentional tort consists of, asked Justice O’Donnell? Don’t we just look at the requisites for mandamus and procedendo?  How could the Court possibly issue writs of mandamus and procedendo against Judge Gall in Cuyahoga County when the physical file is in Medina County?

Wasn’t there an adequate remedy at law here, asked Justice French? Why not a motion to dismiss and an appeal from there?

How it Looks from the Bleachers

To Professor Bettman

The only real issue here is how shallowly or deeply the Court wants to wade into this case.  What there is no doubt about to me is that this Court has absolutely no intention of breathing new life into the common law substantial certainty tort, is not going to allow employee-to-employee intentional torts under the penumbra of workers’ compensation or any extension of Blankenship, and is not going to allow respondeat superior for a common law intentional tort like assault or battery. The Chief and Justices Lanzinger and French seemed the most skeptical  of the Yeaples’ position.

At its most generous, the Court could say that under notice pleading, there is enough pled against Cole to keep the case in Cuyahoga County, and leave it to Judge Gall to sort out the cognizability of the claim. Justice O’Neill alone might go that route, but as he noted, that would probably bring the case back a year later. But during the argument, the Chief commented that even though the issue before the Court was venue, and whether Cole’s actions were sufficient to allow the case to go forward in Cuyahoga, rather than Medina County, the Court was “still going to have to address the issue of employee to employee intentional tort.” So it probably will.  Not to do so would be unhelpful. And if it does flesh this out, look for the Court to closely follow the extremely well written amicus brief from OACTA filed in support of Precision and firmly find in favor of Precision and Cole.

It doesn’t seem to me like Yeaples alleged any common law intentional tort like battery or assault (I don’t know why the justices got so hung up on a civil assault-a rarity-when if this was an intentional tort (and I don’t think it was) it was a battery, with arguably an assault hooked on). And if it is, there is no way the Court will find respondeat superior.

To Student Contributor Rebecca Campbell

As predicted in the oral argument preview, this argument ultimately hinged on whether (or how) the tort exists. Was it a workplace intentional tort? Was Cole acting within the scope of is employment? Did he have the requisite intent to commit an intentional tort? This almost sounded more like a trial than arguments in front of the Supreme Court of Ohio.

Ultimately, I think this one is going to resoundingly go in favor of Precision and Cole, and the Supreme Court is going find the writs of mandamus and procedendo should not have been issued.  Justice O’Donnell quickly latched onto the procedural aspect, by questioning whether the elements for the Yeaples to receive mandamus relief even existed. Chief Justice O’Connor and Justices Lanzinger and French were not buying the Yeaples’ argument concerning the underlying tort, which was a prime example of trying to turn one issue to favor two conflicting viewpoints. And fittingly, Justice O’Neill at one point asked, “Is this a preview of the argument you’ll be asking us a year from now?”

I don’t think the justices are too thrilled they have to settle this dispute, since it is a workplace intentional tort case wrapped in a venue cloak. Because it has procedurally presented itself in this manner, it is going to a tough knot for them to unravel.