Johnson v. BP Chemicals, Inc.

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 298

.]




     JOHNSON, APPELLEE AND CROSS-APPELLANT, v. BP CHEMICALS, INC.,
                         APPELLANT AND CROSS-APPELLEE.
             [Cite as Johnson v. BP Chemicals, Inc., 

1999-Ohio-267

.]
Employer and employee—Cause of action brought by employee alleging
        intentional tort by employer in workplace—R.C. 2745.01 is unconstitutional
        in its entirety—Cross-appeal dismissed as improvidently allowed.
R.C. 2745.01 is unconstitutional in its entirety. (Brady v. Safety-Kleen Corp.
        [1991], 

61 Ohio St.3d 624

, 

576 N.E.2d 722

, approved and followed.)
    (No. 97-2723—Submitted December 15, 1998—Decided April 14, 1999.)
  APPEAL and CROSS-APPEAL from the Court of Appeals for Allen County, No.
                                          1-97-32.
                                  __________________
        {¶ 1} On January 17, 1997, Norman A. Johnson, appellee and cross-
appellant, filed a complaint in the Court of Common Pleas of Allen County, naming
as defendant BP Chemicals, Inc. (“BP”), appellant and cross-appellee herein. In
the complaint, Johnson alleged that during the course of his employment with BP,
he “suffered burn injuries to his lower extremities, face, right arm, and other parts
of his body,” and that his injuries were a direct and proximate result of BP’s
“intentionally tortious conduct.” Johnson also sought recovery against BP for
products liability. Johnson’s products liability claims were predicated on the
allegation that BP acted “in its dual capacity as the manufacturer of machinery on
which Plaintiff sustained injury at the premises.”
        {¶ 2} With respect to his intentional tort claim, Johnson alleged initially that
R.C. 2745.01, the “employment intentional tort” statute, was unconstitutional.
                                   SUPREME COURT OF OHIO




With this assertion as a backdrop, Johnson then based his common-law intentional
tort claim upon the following allegations1:
         “(1) Defendant knew of the existence of the dangerousness of a procedure
or condition at the premises which arose in the cleaning of prilling tower spray
heads (hereinafter ‘product’) with steam pressure within its business operation;
         “(2) From past experience, Defendant knew that since critical welds had
failed in the product and since inspection of the product for such foreseeable
failures was knowingly inadequate, bodily injury would occur;
         “(3) Defendant knew that if Plaintiff was subjected by his employment as
the prill B operator with Defendant to such dangerous procedure or condition, harm
to Plaintiff would be a substantial certainty and not just a high risk; and
         “(4) Under such circumstances and with such knowledge, Defendant acted
to require Plaintiff to continue to perform the dangerous task, to wit, cleaning the
product with steam pressure.”
         {¶ 3} On February 24, 1997, BP filed a Civ.R. 12(B)(6) motion to dismiss
the complaint. In its memorandum in support of the motion, BP argued that R.C.
2745.01 was a valid exercise of the General Assembly’s police powers and that
Johnson’s intentional tort claim should be dismissed because he failed to allege
facts sufficient to establish the existence of an intentional tort in accordance with
the statutory standards set forth in R.C. 2745.01. BP also asserted that Johnson’s
products liability claims were barred under Ohio law.
         {¶ 4} Johnson responded to BP’s motion to dismiss, and he also filed two
motions for partial summary judgment. In his first motion for summary judgment,
Johnson reasserted that R.C. 2745.01 was unconstitutional. In his second motion,




1. In addition to his common-law intentional tort claim, Johnson, in the alternative, also alleged in
his complaint that “as the employer of Plaintiff, Defendant is liable to Plaintiff under the provisions
of Section 2745.01, Ohio Revised Code.”




                                                  2
                                January Term, 1999




Johnson set forth reasons why he should be able to proceed with his products
liability claims against BP.
       {¶ 5} On April 28, 1997, the trial court granted BP’s motion to dismiss and
denied Johnson’s summary judgment motions. The court concluded that R.C.
2745.01 was constitutional in all respects, that R.C. 2745.01 superseded common-
law intentional tort claims brought by employees against their employers, and that,
in this case, specific facts were not alleged sufficient to establish that BP
“deliberately and intentionally” injured Johnson. The trial court further determined
that Johnson failed to state a viable claim for products liability under the dual
capacity doctrine.
       {¶ 6} On appeal, the Third District Court of Appeals reversed the judgment
of the trial court in part and affirmed it in part, and remanded the cause for further
proceedings. The court of appeals held that R.C. 2745.01 was unconstitutional and
that Johnson had properly set forth a claim for common-law intentional tort
sufficient to survive a Civ.R. 12(B)(6) motion to dismiss. The court of appeals,
however, agreed with the trial court that Johnson could not maintain a products
liability action. Based on the holdings of the court of appeals, BP filed an appeal
and Johnson filed a cross-appeal.
       {¶ 7} The cause is now before this court upon the allowance of a
discretionary appeal and cross-appeal.
                               __________________
       Ray & Alton, L.L.P., and Frank A. Ray; Janice A. Quatman & Associates
and Janice A. Quatman, for appellee and cross-appellant.
       Thompson, Hine & Flory, L.L.P., William C. Wilkinson, Scott A. King and
Christine M. Haaker, for appellant and cross-appellee.
       Manley, Burke, Lipton & Cook and Andrew S. Lipton, in support of appellee
and cross-appellant, for amicus curiae, Ohio Academy of Trial Lawyers.




                                          3
                              SUPREME COURT OF OHIO




        Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
in support of appellee and cross-appellant, for amicus curiae, Ohio AFL-CIO.
        Jones, Day, Reavis & Pogue, Jeffery D. Ubersax and Dennis A. Devine, in
support of appellant, for amicus curiae, Cold Metal Products, Inc.
        Betty D. Montgomery, Attorney General, Arthur J. Marziale, Jr., and
Kimberly L. Charles, Assistant Attorneys General, in support of appellant, for
amicus curiae, Ohio Attorney General.
        Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor and Robin R.
Obetz, in support of appellant and cross-appellee, for amici curiae, Ohio
Manufacturers’ Association and Ohio Self-Insurers’ Association.
        Garvin & Hickey, L.L.C., and Preston J. Garvin, in support of appellant and
cross-appellee, for amicus curiae, Ohio Chamber of Commerce.
        Bricker & Eckler, L.L.P., Charles D. Smith and Bobbie S. Sprader, in
support of appellant, for amici curiae, Ohio Farm Bureau and National Federation
of Independent Business, Ohio Chapter.
                                __________________
        DOUGLAS, J.
        {¶ 8} The central question for our consideration is whether the court of
appeals erred in concluding that R.C. 2745.01 is unconstitutional. Johnson has also
filed a cross-appeal, contending that the trial court and court of appeals erred in
dismissing his products liability claims.
                                            I
                                     R.C. 2745.01
        {¶ 9} R.C. 2745.01 became effective November 1, 1995. See Am.H.B. No.
103, 146 Ohio Laws, Part I, 756, 760.2 This legislation represents yet another


2. Section 1, Am.H.B. No. 103, 146 Ohio Laws, Part I, 756-757, states:
         “That new sections 2305.112 and 2745.01 of the Revised Code be enacted to read as
follows:




                                            4
                           January Term, 1999




        “Sec. 2305.112.(A) AN ACTION FOR AN EMPLOYMENT INTENTIONAL TORT
UNDER SECTION 2745.01 OF THE REVISED CODE SHALL BE BROUGHT WITHIN ONE
YEAR OF THE EMPLOYEE’S DEATH OR THE DATE ON WHICH THE EMPLOYEE KNEW
OR THROUGH THE EXERCISE OF REASONABLE DILIGENCE SHOULD HAVE KNOWN
OF THE INJURY, CONDITION, OR DISEASE.
        “(B) AS USED IN THIS SECTION, ‘EMPLOYEE’ AND ‘EMPLOYMENT
INTENTIONAL TORT’ HAVE THE SAME MEANINGS AS IN SECTION 2745.01 OF THE
REVISED CODE.
        “Sec. 2745.01. (A) EXCEPT AS PROVIDED IN THIS SECTION, AN EMPLOYER
SHALL NOT BE LIABLE TO RESPOND IN DAMAGES AT COMMON LAW OR BY
STATUTE FOR AN INTENTIONAL TORT THAT OCCURS DURING THE COURSE OF
EMPLOYMENT. AN EMPLOYER ONLY SHALL BE SUBJECT TO LIABILITY TO AN
EMPLOYEE OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE IN A CIVIL
ACTION FOR DAMAGES FOR AN EMPLOYMENT INTENTIONAL TORT.
        “(B) AN EMPLOYER IS LIABLE UNDER THIS SECTION ONLY IF AN EMPLOYEE
OR THE DEPENDENT SURVIVORS OF A DECEASED EMPLOYEE WHO BRING THE
ACTION PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE EMPLOYER
DELIBERATELY COMMITTED ALL OF THE ELEMENTS OF AN EMPLOYMENT
INTENTIONAL TORT.
        “(C) IN AN ACTION BROUGHT UNDER THIS SECTION, BOTH OF THE
FOLLOWING APPLY:
        “(1) IF THE DEFENDANT EMPLOYER MOVES FOR SUMMARY JUDGMENT, THE
COURT SHALL ENTER JUDGMENT FOR THE DEFENDANT UNLESS THE PLAINTIFF
EMPLOYEE OR DEPENDENT SURVIVORS SET FORTH SPECIFIC FACTS SUPPORTED BY
CLEAR AND CONVINCING EVIDENCE TO ESTABLISH THAT THE EMPLOYER
COMMITTED AN EMPLOYMENT INTENTIONAL TORT AGAINST THE EMPLOYEE;
        “(2) NOTWITHSTANDING ANY LAW OR RULE TO THE CONTRARY, EVERY
PLEADING, MOTION, OR OTHER PAPER OF A PARTY REPRESENTED BY AN
ATTORNEY SHALL BE SIGNED BY AT LEAST ONE ATTORNEY OF RECORD IN THE
ATTORNEY’S INDIVIDUAL NAME AND IF THE PARTY IS NOT REPRESENTED BY AN
ATTORNEY, THAT PARTY SHALL SIGN THE PLEADING, MOTION, OR PAPER. FOR THE
PURPOSES OF THIS SECTION, THE SIGNING BY THE ATTORNEY OR PARTY
CONSTITUTES A CERTIFICATION THAT THE SIGNER HAS READ THE PLEADING,
MOTION, OR OTHER PAPER; THAT TO THE BEST OF THE SIGNER’S KNOWLEDGE,
INFORMATION, AND BELIEF FORMED AFTER REASONABLE INQUIRY IT IS WELL
GROUNDED IN FACT OR A GOOD FAITH ARGUMENT FOR THE EXTENSION,
MODIFICATION, OR REVERSAL OF EXISTING LAW; AND THAT IT IS NOT INTERPOSED
FOR ANY IMPROPER PURPOSE, INCLUDING, BUT NOT LIMITED TO, HARASSING OR
CAUSING UNNECESSARY DELAY OR NEEDLESS INCREASE IN THE COST OF THE
ACTION.
        “IF THE PLEADING, MOTION, OR OTHER PAPER IS NOT SIGNED AS REQUIRED
IN DIVISION (C)(2) OF THIS SECTION, THE COURT SHALL STRIKE THE PLEADING,
MOTION, OR OTHER PAPER UNLESS THE ATTORNEY OR PARTY PROMPTLY SIGNS IT
AFTER THE OMISSION IS CALLED TO THE ATTORNEY’S OR PARTY’S ATTENTION. IF
A PLEADING, MOTION, OR OTHER PAPER IS SIGNED IN VIOLATION OF DIVISION
(C)(2) OF THIS SECTION, THE COURT, UPON MOTION OR UPON ITS OWN INITIATIVE,
SHALL IMPOSE UPON THE PERSON WHO SIGNED IT, OR THE REPRESENTED PARTY,
OR BOTH, AN APPROPRIATE SANCTION. THE SANCTION MAY INCLUDE, BUT IS NOT




                                    5
                                  SUPREME COURT OF OHIO




attempt by the General Assembly to govern when and under what circumstances an
intentional tort claim may be commenced and maintained by an employee against
his or her employer.3 Notably, in Section 3 of Am.H.B. No. 1034, the General
Assembly has declared its intent to supersede the effects of several decisions of this
court and to establish statutory standards, different from the common law, with
respect to intentional torts in the workplace.




LIMITED TO, AN ORDER TO PAY TO THE OTHER PARTY THE AMOUNT OF THE
REASONABLE EXPENSES INCURRED DUE TO THE FILING OF THE PLEADING,
MOTION, OR OTHER PAPER, INCLUDING REASONABLE ATTORNEY’S FEES.
      “(D) AS USED IN THIS SECTION:
      “(1) ‘EMPLOYMENT INTENTIONAL TORT’ MEANS AN ACT COMMITTED BY
AN EMPLOYER IN WHICH THE EMPLOYER DELIBERATELY AND INTENTIONALLY
INJURES, CAUSES AN OCCUPATIONAL DISEASE OF, OR CAUSES THE DEATH OF AN
EMPLOYEE.
      “(2) ‘EMPLOYER’ MEANS ANY PERSON WHO EMPLOYS AN INDIVIDUAL.
      “(3) ‘EMPLOYEE’ MEANS ANY INDIVIDUAL EMPLOYED BY AN EMPLOYER.
      “(4) ‘EMPLOY’ MEANS TO PERMIT OR SUFFER TO WORK.”

3. For an overview of the history of Ohio workers’ compensation law prior to the enactment of
Am.H.B. No. 103, see Brady v. Safety-Kleen Corp. (1991), 

61 Ohio St.3d 624

, 

576 N.E.2d 722

.
See, also, Note Blankenship v. Cincinnati Milacron Chemical Co.: Workers’ Compensation and the
Intentional Tort — A New Direction for Ohio (1987), 12 Cap.U.L.Rev. 286; and Claybon, Ohio’s
“Employment Intentional Tort”: A Workers’ Compensation Exception, or the Creation of an
Entirely New Cause of Action? (1996), 44 Clev.St.L.Rev. 381.

4. Section 3, Am.H.B. No. 103, 146 Ohio Laws, Part I, 758, provides:
         “The General Assembly hereby declares its intent in enacting sections 2305.112 and
2745.01 of the Revised Code to supersede the effect of the Ohio Supreme Court decisions in
Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 

69 Ohio St.2d 608

 [

23 O.O.3d 504

, 

433 N.E.2d 572

] (decided March 3, 1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 

15 Ohio St.3d 90

 [15 OBR 246, 

472 N.E.2d 1046

] (decided December 31, 1982 [sic, 1984]); Van Fossen v.
Babcock & Wilcox (1988), 

36 Ohio St.3d 100

 [

522 N.E.2d 489

] (decided April 14 [sic, 13], 1988);
Pariseau v. Wedge Products, Inc. (1988), 

36 Ohio St.3d 124

 [

522 N.E.2d 511

] (decided April 13,
1988); Hunter v. Shenango Furnace Co. (1988), 

38 Ohio St.3d 235

 [

527 N.E.2d 871

] (decided
August 24, 1988); and Fyffe v. Jeno’s, Inc. (1991), 

59 Ohio St.3d 115

 [

570 N.E.2d 1108

] (decided
May 1, 1991), to the extent that the provisions of sections 2305.112 and 2745.01 of the Revised
Code are to completely and solely control all causes of actions not governed by Section 35 of Article
II, Ohio Constitution, for physical or psychological conditions, or death, brought by employees or
the survivors of deceased employees against employers.” (Emphasis added.) While the General
Assembly does not say so in this provision, it is our hope and belief that what is meant are causes
of action accruing during the course of employment.




                                                 6
                                   January Term, 1999




       {¶ 10} BP and its supporting amici curiae contend that R.C. 2745.01 is
constitutional in all respects. To that end, BP and its supporting amici curiae argue
that the General Assembly has the authority under its police powers to enact
legislation that establishes standards different from the common law, that other
jurisdictions have upheld legislation similar to R.C. 2745.01, and that R.C. 2745.01
represents a reasonable balance between employee and employer interests.
       {¶ 11} We do not dispute the long-standing principle that the General
Assembly has the authority, within constitutional limitations, to change the
common law by legislation. See Thompson v. Ford (1955), 

164 Ohio St. 74

, 79, 

57 O.O. 96

, 99, 

128 N.E.2d 111

, 115. We are also mindful of the fundamental precepts
that all legislative enactments enjoy a strong presumption of constitutionality,
Arnold v. Cleveland (1993), 

67 Ohio St.3d 35, 38

, 

616 N.E.2d 163, 166

, and that
the role of a court when considering the constitutionality of an Act is not to judge
the wisdom of the legislation, Austintown Twp. Bd. of Trustees v. Tracy (1996), 

76 Ohio St.3d 353, 356

, 

667 N.E.2d 1174, 1176

. However, these general principles
are not absolute. Thus, when the validity of a statute is challenged on constitutional
grounds, it is our duty to determine the meaning and effect of the Constitution vis-
a-vis the challenged legislation. State ex rel. Bishop v. Mt. Orab Village School
Dist. Bd. of Edn. (1942), 

139 Ohio St. 427, 438

, 

22 O.O. 494, 498

, 

40 N.E.2d 913, 919

. Moreover, if the legislation at issue exceeds the limits of legislative power,
we must protect the rights of the citizens effected by the law and, if appropriate,
declare the legislation invalid.
       {¶ 12} In response to our holdings in 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 Dev. Co. (1984), 

15 Ohio St.3d 90

, 15 OBR 246, 

472 N.E.2d 1046

,
the General Assembly enacted former R.C. 4121.80 (Am.Sub.S.B. No. 307, 141
Ohio Laws, Part I, 733-737). See Brady v. Safety-Kleen Corp. (1991), 

61 Ohio St.3d 624, 631

, 

576 N.E.2d 722, 727

, citing Kunkler v. Goodyear Tire & Rubber




                                           7
                                  SUPREME COURT OF OHIO




Co. (1988), 

36 Ohio St.3d 135, 136-137

, 

522 N.E.2d 477, 479

. In Brady, the court
invalidated former R.C. 4121.80 in its entirety, and, in doing so, we thought that
we had made it abundantly clear that any statute created to provide employers with
immunity from liability for their intentional tortious conduct cannot withstand
constitutional scrutiny. See, also, State ex rel. Ohio AFL-CIO v. Voinovich (1994),

69 Ohio St.3d 225, 230

, 

631 N.E.2d 582, 587

.5 Notwithstanding, the General
Assembly has enacted R.C. 2745.01, and, again, seeks to cloak employers with
immunity. In this regard, we can only assume that the General Assembly has either
failed to grasp the import of our holdings in Brady or that the General Assembly
has simply elected to willfully disregard that decision. In any event, we will state
again our holdings in Brady and hopefully put to rest any confusion that seems to
exist with the General Assembly in this area.
         {¶ 13} In Brady, the court held that former R.C. 4121.80 exceeded the
power conferred by and conflicted with both Sections 346 and 35,7 Article II of the



5. In State ex rel. Ohio AFL-CIO v. Voinovich (1994), 

69 Ohio St.3d 225, 230

, 

631 N.E.2d 582, 587

, this court restated its holding in Brady that “intentional torts are completely unrelated to
workers’ compensation and the employment relationship.” Thus, relying on Brady, we held in
Voinovich that “the intentional tort provision under newly enacted [now former] R.C. 2745.01 [see
Am.H.B. No. 107, 145 Ohio Laws, Part II, 3040-3041] is not and cannot be related to the common
purpose of the bill, and we therefore hold that such provision violates Section 15(D), Article II of
the Ohio Constitution.” 

Id.

 Former R.C. 2745.01 (Am.H.B. No. 107, 145 Ohio Laws, Part II, 3040-
3041) was virtually identical to R.C. 2745.01 (Am.H.B. No. 103, 146 Ohio Laws, Part I, 756-757).
Former R.C. 2745.01 has simply been revived and restated in Am.H.B. No. 103.

6. Section 34, Article II of the Ohio Constitution states:
         “Laws may be passed fixing and regulating the hours of labor, establishing a minimum
wage, and providing for the comfort, health, safety and general welfare of all employes; and no other
provision of the constitution shall impair or limit this power.”

7. Section 35, Article II of the Ohio Constitution provides:
          “For the purpose of providing compensation to workmen and their dependents, for death,
injuries or occupational disease, occasioned in the course of such workmen’s employment, laws
may be passed establishing a state fund to be created by compulsory contribution thereto by
employers, and administered by the state, determining the terms and conditions upon which payment
shall be made therefrom. Such compensation shall be in lieu of all other rights to compensation, or
damages, for such death, injuries, or occupational disease, and any employer who pays the premium




                                                 8
                                       January Term, 1999




Ohio Constitution. Specifically, this court concluded that former R.C. 4121.80 was
“totally repugnant” to Section 34, Article II, because, in enacting the legislation,
the General Assembly eliminated an employee’s right to a common-law cause of
action for an employer intentional tort that would otherwise benefit the employee.
Brady, 

61 Ohio St.3d at 633

, 

576 N.E.2d at 728

. Therefore, former R.C. 4121.80
was not a law that furthered the “ ‘comfort, health, safety and general welfare of all
employees.’ “ 

Id.,

 quoting Section 34, Article II.
         {¶ 14} Additionally, the court in Brady adopted the rationale from the
dissent in Taylor v. Academy Iron & Metal Co. (1988), 

36 Ohio St.3d 149, 162

, 

522 N.E.2d 464, 476

,8 and concluded that R.C. 4121.80 represented an invalid exercise
of legislative authority. Specifically, the court held that “the legislature cannot,
consistent with Section 35, Article II, enact legislation governing intentional torts
that occur within the employment relationship, because such intentional tortious
conduct will always take place outside that relationship. 

Blankenship, supra.

 Since


or compensation provided by law, passed in accordance herewith, shall not be liable to respond in
damages at common law or by statute for such death, injuries or occupational disease.”

8. In Brady, the court adopted the following passage from the dissent in Taylor v. Academy Iron &
Metal Co. (1988), 

36 Ohio St.3d 149

, 

522 N.E.2d 464

:
          “ ‘Injuries resulting from an employer’s intentional torts, even though committed at the
workplace, are utterly outside the scope of the purposes intended to be achieved by Section 35 and
by the Act. Such injuries are totally unrelated to the fact of employment. When an employer
intentionally harms his employee, that act effects a complete breach of the employment relationship,
and for purposes of the legal remedy for such an injury, the two parties are not employer and
employee, but intentional tortfeasor and victim. If the victim brings an intentional tort suit against
the tortfeasor, it is a tort action like any other. The employer has forfeited his status as such and all
the attendant protections fall away. The Industrial Commission can have no jurisdiction over such
an action. The lawsuit has no bearing upon any question relating to employment. The jurisdiction
of the commission is limited to the matters delineated in Section 35, Article II. The General
Assembly has no power to confer jurisdiction on the commission except as authorized by that
constitutional provision. See Crawford, supra [110 Ohio St.], at 276, 143 N.E. at 575-576. Section
35 concerns itself solely with compensation for injuries arising from employment. R.C. 4121.80
concerns itself solely with injuries which by their nature have no connection whatsoever with the
fact of employment. In enacting R.C. 4121.80, the General Assembly has exceeded the scope of
the authority granted to it by the constitutional amendment, and the statute is, therefore, void as an
improper exercise of legislative power.’ (Emphasis sic.)” Brady, 

61 Ohio St.3d at 634

, 

576 N.E.2d at 729

, quoting Taylor, 

36 Ohio St.3d at 162

, 

522 N.E.2d at 476

 (Douglas, J., dissenting).




                                                   9
                                   SUPREME COURT OF OHIO




we find that Section 35, Article II authorizes only enactment of laws encompassing
death, injuries or occupational disease occasioned within the employment
relationship, R.C. 4121.80 cannot logically withstand constitutional scrutiny,
inasmuch as it attempts to regulate an area that is beyond the reach of its
constitutional empowerment.” (Emphasis sic.) Brady, 

61 Ohio St.3d at 634

, 

576 N.E.2d at 729

.
         {¶ 15} Clearly, the constitutional impediments at issue in Brady,
concerning former R.C. 4121.80, also apply with equal force to R.C. 2745.01. Both
statutes were enacted to serve identical purposes. Like former R.C. 4121.80, R.C.
2745.01 was created to provide immunity for employers from civil liability for
employee injuries, disease, or death caused by the intentional tortious conduct of
employers in the workplace.9
         {¶ 16} Specifically, R.C. 2745.01(A) provides that an employer is not
generally subject to liability for damages at common law or by statute for an
intentional tort that occurs during the course of employment, but that an employer
is subject to liability only for an “employment intentional tort” as defined.10
“Employment intentional tort” is defined in R.C. 2745.01(D)(1) as “an act
committed by an employer in which the employer deliberately and intentionally
injures, causes an occupational disease of, or causes the death of an employee.”
(Emphasis added.)          Further, R.C. 2745.01(B) states that employees or the
dependent survivors of deceased employees who allege an intentional tort must
demonstrate “by clear and convincing evidence that the employer deliberately


9. Section 35, Article II of the Ohio Constitution provides the basis for legislative enactments in
the area of workers’ compensation. Although R.C. 2745.01 was not made part of the Workers’
Compensation Act (R.C. Chapter 4123), it is abundantly clear, given the nature of R.C. 2745.01,
including the heightened proof standards contained therein, that the overriding purpose of the statute
is to shield employers from civil liability for employee injuries caused by the intentional tortious
conduct of the employer.

10. It appears that R.C. 2745.01(A) is internally inconsistent.




                                                 10
                                     January Term, 1999




committed all of the elements of an employment intentional tort.”11 (Emphasis
added.) This standard of clear and convincing evidence also applies to a response
by the employee or the employee’s representative to an employer’s motion for
summary judgment. R.C. 2745.01(C)(1). In addition, the statute requires that
“every pleading, motion, or other paper” be signed by the attorney of record or, if
the party is not represented by an attorney, by the party. R.C. 2745.01(C)(2).12
And, if the requirements of R.C. 2745.01(C)(2) are not complied with, the court
shall impose “an appropriate sanction.” 

Id.

 The sanction may include, but is not
limited to, reasonable expenses incurred by the other party, including reasonable
attorney fees. 

Id.

         {¶ 17} By establishing the foregoing standards in R.C. 2745.01, the General
Assembly has created a cause of action that is simply illusory.                        Under the
definitional requirements contained in the statute, an employer’s conduct, in order
to create civil liability, must be both deliberate and intentional. Therefore, in order
to prove an intentional tort in accordance with R.C. 2745.01(D)(1), the employee,
or his or her survivors, must prove, at a minimum, that the actions of the employer
amount to criminal assault. In fact, given the elements imposed by the statute, it is
even conceivable that an employer might actually be guilty of a criminal assault but




11. In comparing former R.C. 4121.80 with R.C. 2745.01, it is apparent that R.C. 2745.01 contains
standards even more stringent (excessive) than those found in former R.C. 4121.80(G)(1), which
did not require clear and convincing evidence.

12. R.C. 2745.01(C)(2) states, at the onset, “Notwithstanding any law or rule to the contrary.” This
language suggests that the General Assembly has the authority to encroach upon the rule-making
authority of this court. See, however, Section 5(B), Article IV, Ohio Constitution (“The supreme
court shall prescribe rules governing practice and procedure in all courts of the state, which rules
shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such
rules shall be of no further force or effect after such rules have taken effect.”).




                                                11
                                   SUPREME COURT OF OHIO




exempt from civil liability under R.C. 2745.01(D)(1). Taylor, 36 Ohio St.3d at
162-163, 522 N.E.2d at 476 (Douglas, J., dissenting).13
         {¶ 18} Indeed, the requirements imposed by R.C. 2745.01 are so
unreasonable and excessive that the chance of recovery of damages by employees
for intentional torts committed by employers in the workplace is virtually zero. In
this regard, we agree with the court of appeals that R.C. 2745.01 “creates an
insurmountable obstacle for victims of ‘employment intentional torts.’ ” See, also,
Claybon, Ohio’s “Employment Intentional Tort”: A Workers’ Compensation
Exception, or the Creation of an Entirely New Cause of Action? (1996), 44
Cleve.St.L.Rev. 381, 405-406 (“To impose a clear and convincing standard of



13. The following excerpt from the Taylor dissent dealt with the definition of “intentional tort”
contained in former R.C. 4121.80(G)(1), but the excerpt also exemplifies and adequately
summarizes the absurdity of the elements imposed by the General Assembly in R.C. 2745.01(D)(1):
           “Under this definition [former R.C. 4121.80(G)(1)], an employer, in order to be held civilly
liable, must have proceeded deliberately to cause death or injury to an employee. The implications
of this standard are astounding. Legally speaking, an employer is now subject to civil liability only
if his actions amount to criminal assault or murder.
           “R.C. 2903.02(A), setting forth the crime of murder, states: ‘No person shall purposely
cause the death of another.’ ‘Purposely’ is defined in R.C. 2901.22(A), which provides that ‘[a]
person acts purposely when it is his specific intention to cause a certain result * * *.’ R.C.
4121.80(G)(1) requires that the employer act with ‘deliberate intent to cause an employee to suffer
* * * death.’ Anything less will not result in civil liability. Thus, an employer is now civilly liable
for an employee’s death only if he commits murder, and even then his liability is substantially
limited by other provisions of R.C. 4121.80.
           “The same is true of an employer who acts intentionally to cause injury to an employee.
In fact, the criminal assault statutes require a less culpable mental state than R.C. 4121.80. R.C.
2903.11 sets forth the elements of felonious assault as follows:
           “ ‘(A) No person shall knowingly:
           “ ‘(1) Cause serious physical harm to another * * *.’ (Emphasis added.)
           “ ‘Knowingly’ is defined in R.C. 2901.22(B): ‘A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he is aware that such
circumstances probably exist.’
           “ ‘Knowingly’ is a less culpable state than ‘purposely.’ R.C. 2901.22(E); State v. Wilkins
(1980), 

64 Ohio St.2d 382

, 

18 O.O.3d 528

, 

415 N.E.2d 303

. To act ‘knowingly,’ a person need not
act with deliberate intent. State v. Wenger (1979), 

58 Ohio St.2d 336, 339

, 

12 O.O.3d 309, 311

, 

390 N.E.2d 801, 803

, at fn. 3. Thus, an employer may actually be guilty of criminal assault but exempt
from civil liability under R.C. 4121.80(G)(1)!” (Emphasis sic and footnote omitted.) Taylor, 

36 Ohio St.3d at 162-163

, 522 N.E.2d. at 476-477 (Douglas, J., dissenting).




                                                  12
                                     January Term, 1999




proof, in addition to requiring specific intent, distorts the very balance the
legislature was trying to achieve. Foreseeably, it will be extremely difficult for an
employee to prove a case of intentional tort in anything short of a flagrant battery.
With the threat of sanctions it is also foreseeable that an employee[‘s] attorney will
not want to file employee cases, otherwise risk being punished for what the court
feels was not a ‘good faith’ argument, or for ‘causing unnecessary delay or needless
increase in the cost of the action.’ ”).
         {¶ 19} Accordingly, we find that R.C. 2745.01 is unconstitutional in its
entirety.    Because R.C. 2745.01 imposes excessive standards (deliberate and
intentional act), with a heightened burden of proof (clear and convincing evidence),
it is clearly not “a law that furthers the ‘ * * * comfort, health, safety and general
welfare of all employes.’ ” Brady, 

61 Ohio St.3d at 633

, 

576 N.E.2d at 728

, quoting
Section 34, Article II of the Ohio Constitution. See, also, Blankenship, 

69 Ohio St.2d at 615

, 

23 O.O.3d at 509

, 

433 N.E.2d at 577

 (“one of the avowed purposes of
the [Workers’ Compensation] Act is to promote a safe and injury-free work
environment. * * * Affording an employer immunity for his intentional behavior
certainly would not promote such an environment, for an employer could commit
intentional acts with impunity with the knowledge that, at the very most, his
workers’ compensation premiums may rise slightly.”). Furthermore, because R.C.
2745.01 is an attempt by the General Assembly to govern intentional torts that
occur within the employment relationship, R.C. 2745.01 “cannot logically
withstand constitutional scrutiny, inasmuch as it attempts to regulate an area that is
beyond the reach of constitutional empowerment.” Brady, 

61 Ohio St.3d at 634

,

576 N.E.2d at 729

.14


14. In the case at bar, the court of appeals determined that R.C. 2745.01 was unconstitutional on
grounds other than what we have decided here today. In a well-reasoned opinion, the court of
appeals held that R.C. 2745.01 denied employees equal protection of the law in violation of Section
2, Article I of the Ohio Constitution, and that the statute also violated the open courts provision,
Section 16, Article I. We agree with the holdings of the court of appeals in this regard. However,




                                                13
                                   SUPREME COURT OF OHIO




         {¶ 20} After determining the constitutionality of R.C. 2745.01, and after
reviewing the complaint, the court of appeals concluded that Johnson properly set
forth a claim for common-law intentional tort against BP. We agree. In his
complaint, Johnson alleged that he was exposed to a dangerous situation at the plant
and that BP knew that such exposure would be substantially certain to cause injury.
Accepting these allegations as true, as we are required to do, we hold that the
complaint properly sets forth a claim of intentional tort sufficient to survive a Civ.R.
12(B)(6) motion to dismiss. See Mitchell v. Lawson Milk Co. (1988), 

40 Ohio St.3d 190

, 

532 N.E.2d 753

.
         {¶ 21} Therefore, for the foregoing reasons, the judgment of the court of
appeals is affirmed with respect to its holding that R.C. 2745.01 is unconstitutional
and with respect to its ruling that the complaint states a cause of action for common-
law intentional tort sufficient to withstand a Civ.R. 12(B)(6) motion to dismiss.
Thus, Johnson’s common-law intentional tort claim is reinstated.
                                                  II
                                          Cross-Appeal
         {¶ 22} In his complaint, Johnson also sought recovery against BP based
upon various theories of products liability. The trial court held, and the court of
appeals agreed, that Johnson was precluded from maintaining a products liability
action against BP. Johnson has filed a cross-appeal in this court with respect to this
matter, and we accepted jurisdiction. However, upon further consideration thereof,
we dismiss the cross-appeal, sua sponte, as having been improvidently allowed.




we find it unnecessary to elaborate further on the substantive merits of the court of appeals’ holdings
given our holding in this case that R.C. 2745.01 exceeds the limits of legislative power under the
Ohio Constitution.




                                                  14
                                  January Term, 1999




                                                            Judgment affirmed in part
                                                          and cross-appeal dismissed.
          RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
          MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent.
                                  __________________
          COOK, J., dissenting.
          {¶ 23} The majority opinion views the issue presented by this case as a
question of “what is right?” but I believe the true question is “who decides what is
right?”
          {¶ 24} The General Assembly passed this legislation as part of its policy-
making function, a function inherent in the legislative power. With this decision,
however, the majority usurps the legislative function; it cloaks judicial legislation
in the guise of constitutional scholarship. Unconstitutionality is a legitimate basis
for overturning democratically enacted legislation, but even gentle scrutiny of the
majority opinion shows that there is no justification for labeling this legislation
unconstitutional.
          {¶ 25} We should be concerned by the use of judicial power to advance a
particular social philosophy.         When judges declare governmental actions
unconstitutional based upon a personal distaste for the policies adopted through the
legislative process, we cease to be governed by democracy.
          {¶ 26} Our Ohio Constitution restrains the powers and discretion of
government—all three branches of it.
                                            I
          {¶ 27} This case is about properly defining the term “intentional tort” in the
employment context. In Harasyn v. Normandy Metals, Inc. (1990), 

49 Ohio St.3d 173

, 

551 N.E.2d 962

, this court distinguished “direct intent” intentional torts from
other intentional torts. That case defined “direct intent” intentional torts as “where
the actor does something which brings about the exact result desired.” 

Id. at 175

,




                                            15
                              SUPREME COURT OF OHIO

551 N.E.2d at 964

. It classified other intentional torts as where “the actor does
something which he believes is substantially certain to cause a particular result,
even if the actor does not desire that result.” 

Id.

 Prior decisions of this court have
set forth a broad definition of the term in the employment context, including both
direct intent and inferred intent within the definition of employer intentional tort.
By enacting R.C. 2745.01, the General Assembly sought to statutorily narrow that
common-law definition to “direct intent” torts only. The majority here determines
the General Assembly has no authority to do this, but does not support its position
with legitimate reasoning that R.C. 2745.01 offends both Sections 34 and 35,
Article II of the Ohio Constitution.
                                           II
        {¶ 28} The majority, citing Brady v. Safety-Kleen Corp. (1991), 

61 Ohio St.3d 624

, 

576 N.E.2d 722

, concludes that R.C. 2745.01 violates Section 34, Article
II of the Ohio Constitution because it “clearly” does not further the “comfort,
health, safety and general welfare of all employes.” Whether the legislation does
or not, Section 34, Article II does not disqualify it.
        {¶ 29} Section 34, Article II resulted from claims that the General
Assembly had no authority under the Constitution to legislate in the area of
minimum wages and the like. The argument against enacting such laws was that
they impaired the constitutional right to contract. So, the citizens approved a
constitutional amendment setting forth that “[l]aws may be passed fixing and
regulating the hours of labor, establishing a minimum wage, and providing for the
comfort, health, safety and general welfare of all employes; and no other provision
of the constitution shall impair or limit this power.” (Emphasis added.) Section
34, Article II, Ohio Constitution. From that, the majority gleans a prohibition
against any legislation that does not “provid[e] for the comfort, health, safety and
general welfare of all employes.” This section does not say that the General
Assembly may pass only laws that provide for the comfort, health, safety, and




                                          16
                                 January Term, 1999




general welfare of employees. It also does not say that no law may ever be passed
that does not provide for the comfort, health, safety, and general welfare of
employees. There is nothing in this grant of authority that can properly be read as
a limitation on authority. Yet this is exactly the interpretation given it by a plurality
in Brady and followed today.
        {¶ 30} It is interesting to note that in Rocky River v. State Emp. Relations
Bd. (1988), 

39 Ohio St.3d 196

, 

530 N.E.2d 1

, and Rocky River v. State Emp.
Relations Bd. (1989), 

43 Ohio St.3d 1

, 

539 N.E.2d 103

, this court was deeply
divided on the issue of whether Section 34, Article II applied to anything more than
wage and hour regulation. A mere two years later, the Brady plurality jumped from
the hotly debated conclusion that Section 34, Article II allows broader legislation
for the welfare of employees, to the specious conclusion that it prevents any
legislation that is not specifically enacted for employees’ welfare. There is no
better argument in today’s decision, just a repeat of the Brady rationale.
        {¶ 31} Moreover, for the majority to cite Section 34, Article II, a provision
aimed at employee welfare, as a basis for holding R.C. 2745.01 unconstitutional is
inconsistent with its premise that the injuries to Brady and Johnson were not
sustained by them as employees — given that employer intentional torts fall outside
the scope of employment. Justice Brown noted this inconsistency in his Brady
concurrence when he stated, “[Section 34, Article II] does not apply to employer
intentional torts because they are not part of the employment relationship.” Brady,

61 Ohio St.3d at 639

, 

576 N.E.2d at 733

.
        {¶ 32} Accordingly, Section 34, Article II offers no basis for finding R.C.
2745.01 unconstitutional.
                                           III
        {¶ 33} The other basis the majority cites for finding R.C. 2745.01
unconstitutional is the immunity/exclusivity provision of Section 35, Article II of
the Ohio Constitution. The majority’s argument, resurrected from Brady, is that




                                           17
                             SUPREME COURT OF OHIO




Section 35 grants authority to the General Assembly to enact laws regarding
injuries occasioned within the employment context, and thus, somehow, this
section thereby proscribes the passing of any laws affecting injuries outside the
scope of employment. Like its Section 34 argument, the majority’s Section 35
argument is unconvincing in its efforts to convert a grant of authority into a
restraint. Brady, 

61 Ohio St.3d at 634

, 

576 N.E.2d at 729

. Justice Brown also noted
this inconsistency in his Brady concurrence, saying: “Intentional torts do not * * *
come within the scope of Section 35, Article II. This does not mean, however, that
the General Assembly has no power to modify intentional tort law by legislation.
The legislature may do so in the exercise of its police power.” (Emphasis sic.) 

Id. at 640

, 

576 N.E.2d at 733

.
       {¶ 34} The majority concedes that “the General Assembly has the authority,
within constitutional limitations, to change the common law by legislation.” If, as
Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 

69 Ohio St.2d 608

, 

23 O.O.3d 504

, 

433 N.E.2d 572

, concludes, Section 35, Article II does not preempt
common-law or statutory actions for employer intentional torts, then the General
Assembly has authority to legislate in this area. This includes the authority to
determine the contextual definition for intentional tort. If, as Brady concludes,
Section 35, Article II precludes the legislation now at issue, then it can only be
because such torts do arise within the course of employment. But Section 35,
Article II cannot be both inapplicable to employer intentional torts and, at the same
time, offended by any legislation regulating such torts. Yet those are exactly the
contradictory conclusions reached by Brady and followed here.
                                         IV
       {¶ 35} Though unnecessary in this dissent, I wish to take issue with the
“outside the scope of employment” fiction initially employed in Blankenship. In
Ruckman v. Cubby Drilling, Inc. (1998), 

81 Ohio St.3d 117

, 

689 N.E.2d 917

, this
court stated that the phrase “in the course of employment” limited compensable




                                         18
                               January Term, 1999




injuries “to those sustained by an employee while performing a required duty in the
employer’s service.” 

Id. at 120

, 

689 N.E.2d at 921

. “An injury is compensable if
it is sustained by an employee while that employee engages in activity that is
consistent with the contract for hire and logically related to the employer’s
business.” 

Id.

       {¶ 36} Blankenship involved employees who claimed they were rendered
ill by exposure to noxious chemicals while performing assigned duties for their
employer.    Nevertheless, the Blankenship majority concluded that employer
intentional torts, although occurring within the course of employment, were
nonetheless excluded from the pervasive immunity provided by Section 35, Article
II. Blankenship, 

69 Ohio St.2d at 612-614

, 

23 O.O.3d at 507-508

, 

433 N.E.2d at 575-577

.
       {¶ 37} In Brady, an employee who was on his shift, performing the duties
expected of him, claimed he was injured when he helped clean up an accidental
chemical spill caused by another employee, similarly performing his assigned
duties for the same employer. In Walton v. Springwood Products, Inc. (1995), 

105 Ohio App.3d 400, 401

, 

663 N.E.2d 1365, 1366

, an employee was injured “in the
course and scope of his employment” when his hand was caught in the machine he
was operating for his employer. In Cook v. Cleveland Elec. Illum. Co. (1995), 

102 Ohio App.3d 417, 419-420

, 

657 N.E.2d 356, 358

, an employee was injured “in the
course and scope of his employment” while performing “a normal part of his
duties.” And in McGee v. Goodyear Atomic Corp. (1995), 

103 Ohio App.3d 236, 239

, 

659 N.E.2d 317, 319

, an employee claimed he suffered liver damage due to
exposure to a chemical solvent “[t]hroughout his employment.” See, also, Richey
v. Johnson & Hardin Co. (July 17, 1998), Hamilton App. No. C-970767,
unreported, 

1998 WL 395899

 (employee injured while cleaning a printing press for
his employer); Jones v. Gen. Motors Corp. (May 9, 1997), Defiance App. No. 4-




                                        19
                             SUPREME COURT OF OHIO




96-21, unreported, 

1997 WL 232730

 (employee fatally injured while performing
an ordinary task assigned by his employer).
       {¶ 38} Despite what would seem to be an indisputable fact that all of these
injuries arose in the course of employment, and despite the clear language of
Section 35, Article II precluding remedies other than workers’ compensation for
such injuries, the courts in these cases found that the employer could be liable to
respond in damages. The facts in this case are similar. As the majority notes,
Johnson himself concedes in his complaint that he was injured “during the course
of his employment.” But, following Blankenship, the majority concludes that
Johnson was injured outside the scope of his employment, although his injuries
were sustained “while performing a required duty in the employer’s service,”
Ruckman, 

81 Ohio St.3d at 120

, 

689 N.E.2d at 921

, and while “engage[d] in activity
that is consistent with the contract for hire and logically related to the employer’s
business.” 

Id.

 Our Constitution requires that such injuries be compensated by
workers’ compensation in lieu of any other statutory or common-law remedy.
                                          V
       {¶ 39} The morass created by Blankenship and its progeny concerning the
definition of an employer intentional tort is exactly what the General Assembly
attempted to remedy by enacting R.C. 2745.01 — to foreclose the filing of cases in
derogation of the clear language of Section 35, Article II and the exclusivity
intended to be afforded that provision.
                                          VI
       {¶ 40} The majority opinion discloses its unfavorable view of the public
policy behind R.C. 2745.01 by characterizing it as the General Assembly’s attempt
“to provide employers with immunity from liability for their intentional tortious
conduct.” The statute, however, codifies a cause of action for employees for injuries
not covered under Section 35, Article II.




                                          20
                                 January Term, 1999




        {¶ 41} The majority is troubled by the legislative policy of setting a high
bar for tort actions in derogation of Section 35, Article II, calling the resulting cause
of action “simply illusory” and the requirements “unreasonable and excessive.”
But in a constitutional democracy, one is moved to ask, “Says who?” The majority
also complains about the General Assembly’s choice of policy, commenting that
“the chance of recovery of damages by employees for intentional torts committed
by employers in the workplace is virtually zero.” The likelihood of recovery,
however, seems far afield of the two asserted arguments for unconstitutionality.
Instead, it expresses disdain for the General Assembly’s public-policy decision.
        {¶ 42} It is true that the statute may rarely be invoked. But that ought to be
the case when claims are permitted in derogation of the constitutional compromise
between employers and employees.           And one would hope that an employer
deliberately injuring an employee would be very rare indeed.
                                          VII
        {¶ 43} “ ‘The question, whether a law be void for its repugnancy to the
Constitution is, at all times, a question of much delicacy, which ought seldom, if
ever, to be decided in the affirmative in a doubtful case.’ ” State ex rel. Dickman
v. Defenbacher (1955), 

164 Ohio St. 142

, 154, 

57 O.O. 134

, 140, 

128 N.E.2d 59

,
67, quoting Fletcher v. Peck (1810), 

10 U.S. (6 Cranch) 87, 128

, 

3 L.Ed. 162, 175

.
I believe the majority errs today by finding this legislation unconstitutional.
Therefore, I respectfully dissent.
        MOYER, C.J., and LUNDBERG STRATTON, J., concur in the foregoing
dissenting opinion.
                                __________________


        LUNDBERG STRATTON, J., dissenting.




                                           21
                             SUPREME COURT OF OHIO




       {¶ 44} Today the majority once again strikes down a constitutionally valid
attempt by the General Assembly to restore balance between employees’ and
employers’ rights in the context of workplace injuries.
       {¶ 45} My dissent is grounded in the history of the workers’ compensation
system. In Ohio, prior to 1911, an employee attempting to recover damages against
an employer for injuries sustained in the workplace had to file a common-law action
against his or her employer. Brady v. Safety-Kleen Corp. (1991), 

61 Ohio St.3d 624, 643

, 

576 N.E.2d 722, 735

 (Holmes, J., dissenting). Injured employees were
required to prove that the employer had a duty of care toward them and that the
employer breached that duty. Keeton, Dobbs, Keeton & Owens, Prosser & Keeton
on the Law of Torts (5 Ed.1984), Section 80, 569, 572-573. Employers could raise
three defenses against such claims: (1) contributory negligence, (2) assumption of
the risk, and (3) the fellow servant rule. Note, Exceptions to the Exclusive Remedy
Requirements of Workers’ Compensation Statutes (1983), 96 Harv.L.Rev. 1641,
1644. But “[t]his system of litigation for obtaining compensation for work-related
injuries became widely recognized as not meeting the needs of injured workers. In
Ohio, a great number of such injuries were reportedly going uncompensated
because of the legal defenses available to the employer.” 

Brady at 643

, 

576 N.E.2d at 735

 (Holmes, J., dissenting).
       {¶ 46} In response to the crisis, in 1911, the General Assembly enacted
Ohio’s first workers’ compensation law. See 102 Ohio Laws 524 et seq. The
Workers’ Compensation Act provided a more equitable system for compensating
employees’ work-related injuries. Both employer and employee could avoid the
burdensome cost of litigation. Claybon, Ohio’s “Employment Intentional Tort”: A
Workers’ Compensation Exception, or the Creation of an Entirely New Cause of
Action? (1996), 44 Cleve.St.L.Rev. 381, 386. The employee received a prompt
recovery for injuries that occurred in the workplace without having to prove
negligence. 

Id.

 In return, the employer was no longer subject to uncertain damages




                                        22
                               January Term, 1999




by way of lawsuits, but also could no longer assert any defense. 

Id.

 G.C. 1465-57
of the newly enacted workers’ compensation law provided that any employer who
paid the state insurance fund premiums “shall not be liable to respond in damages
at common law or by statute, save as hereinafter provided, for injuries or death of
any such employee.”      102 Ohio Laws 524, 528.        However, there were two
exceptions to the exclusivity of the workers’ compensation remedy.            If an
employee’s injuries were caused by a “wilful” act of the employer or if an
employee’s injuries were caused by an employer’s violation of a safety ordinance
or statute, the employee could opt for either a common-law action against the
employer or recovery under the workers’ compensation system. G.C. 1465-61, 102
Ohio Laws 524, 529. Employer participation was not compulsory. G.C. 1465-57,
1465-58, id. at 528.
       {¶ 47} In 1912, Section 35, Article II of the Ohio Constitution was adopted,
which authorized the General Assembly to establish and regulate a workers’
compensation fund that required employer participation.
       {¶ 48} In 1931, the General Assembly repealed the exceptions for willful
acts and for employers’ violations of safety standards. 114 Ohio Laws 26, 39,
repealing G.C. 1465-76 (formerly G.C. 1465-61). Awards for violations of specific
safety requirements were absorbed and codified into the workers’ compensation
system as awards supplemental to the workers’ compensation benefits if an
employer’s violation of a specific safety requirement (“VSSR”) caused the
employee’s injury. See, e.g., State ex rel. Go-Jo Industries v. Indus. Comm. (1998),

83 Ohio St.3d 529

, 

700 N.E.2d 1264

. Subsequent to the repeal of the willful-act
exception, courts interpreted the workers’ compensation system to be the exclusive
remedy for work-related injuries.
       {¶ 49} But in 1982, 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

, held
that an employee is not precluded by the exclusivity provisions of the workers’




                                        23
                             SUPREME COURT OF OHIO




compensation laws from bringing a common-law intentional tort action against the
employer because workers’ compensation covers only injuries received in the
course of or arising out of employment, whereas an intentional act occurs outside
the scope of employment. Two years later, in Jones v. VIP Dev. Co. (1984), 

15 Ohio St.3d 90

, 15 OBR 246, 

472 N.E.2d 1046

, the court defined an intentional tort
in the employment setting as “an act committed with the intent to injure another, or
committed with the belief that such injury is substantially certain to occur.” 

Id.,

paragraph one of the syllabus. While recognizing that “intent to injure” was a
requirement for intentional tort, the court in Jones also determined that conduct by
an employer that lacks specific intent to injure can also be an “intentional” tort. In
response to Jones, the General Assembly enacted R.C. 4121.80, which defined
“intentional tort” in the employment setting as follows:
        “(G) As used in this section:
        “(1) ‘Intentional tort’ is an act committed with the intent to injure another
or committed with the belief that the injury is substantially certain to occur.
        “***
        “ ‘Substantially certain’ means that an employer acts with deliberate intent
to cause an employee to suffer injury, disease, condition, or death.” (Emphasis
added.) 1986 Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 736.
        {¶ 50} Despite the General Assembly’s definition in R.C. 4121.80 of
“substantially certain” as requiring “deliberate intent to cause * * * injury,” the
court in Van Fossen v. Babcock & Wilcox Co. (1988), 

36 Ohio St.3d 100

, 

522 N.E.2d 489

, held that some acts committed with a culpability greater than
recklessness, but not deliberately done with an intent to injure, should be
recognized as intentional. 

Id.

 at paragraph six of the syllabus. This holding was
essentially echoed in Fyffe v. Jeno’s, Inc. (1991), 

59 Ohio St.3d 115

, 

570 N.E.2d 1108

.




                                          24
                                January Term, 1999




       {¶ 51} In a final undoing of the General Assembly’s work, the court in
Brady v. Safety-Kleen Corp. (1991), 

61 Ohio St.3d 624

, 

576 N.E.2d 722

, held that
R.C. 4121.80 was unconstitutional in toto. 

Id.

 at paragraph two of the syllabus.
       {¶ 52} In these cases, this court has blurred the distinction between conduct
truly outside the scope of employment (an intentional act) and conduct that is part
and parcel of the employment relationship. But I believe that only injuries caused
by truly intentional acts fall outside the coverage of the workers’ compensation
system, as established by Section 35, Article II of the Ohio Constitution, and may
be the basis for an intentional tort action against an employer, while all other
injuries are compensable only through the workers’ compensation system. Section
35, Article II of the Ohio Constitution does not differentiate between types or
causes of injuries. Its language is all-encompassing:
       “For the purpose of providing compensation to workmen and their
dependents, for death, injuries or occupational disease, occasioned in the course of
such workmen’s employment, laws may be passed establishing [a workers’
compensation system]. Such compensation shall be in lieu of all other rights to
compensation, or damages, for such death, injuries, or occupational disease, and
any employer who pays the premium or compensation provided by law, passed in
accordance herewith, shall not be liable to respond in damages at common law or
by statute for such death, injuries or occupational disease.”
       {¶ 53} The court makes no differentiation between degrees of risk levels of
knowledge and certainty in interpreting the workers’ compensation laws. The fact
patterns in Jones and Van Fossen clearly fall under Section 35, Article II of the
Ohio Constitution as part of the workers’ compensation trade-off. This court, in its
line of decisions since Blankenship, has imposed another level of compensation for
employees despite the clear proof that these injuries were part and parcel of the
employment relationship.




                                         25
                                SUPREME COURT OF OHIO




          {¶ 54} It is in light of this history that I disagree with the majority’s holding
that R.C. 2745.01 is unconstitutional pursuant to Sections 34 and 35, Article II of
the Ohio Constitution.
          {¶ 55} In supporting its position in this case, the majority reiterates
reasoning from Brady v. Safety-Kleen Corp., 

61 Ohio St.3d 624

, 

576 N.E.2d 722

.
In Brady, the court determined that R.C. 4121.80 exceeded the authority granted by
Sections 34 and 35 of Article II of the Ohio Constitution. The majority, therefore,
holds that R.C. 2745.01 likewise violates these sections of the Constitution.
                     Section 34, Article II of the Ohio Constitution
          {¶ 56} I would hold that R.C. 2745.01 does not conflict with Section 34,
Article II of the Ohio Constitution. Section 34, Article II of the Ohio Constitution
states:
          “Laws may be passed * * * providing for the comfort, health, safety and
general welfare of all employees * * *.”
          {¶ 57} The plurality opinion in Brady stated that “[a] legislative enactment
that attempts to remove a right to a remedy under common law that would otherwise
benefit the employee cannot be held to be a law that furthers the ‘ * * * comfort,
health, safety and general welfare of all employees * * *.’ ” 

Id.,

61 Ohio St.3d at 633

, 

576 N.E.2d at 728

. The majority here makes the same conclusion about R.C.
2745.01.
          {¶ 58} In support of its holding that R.C. 2745.01 violates Section 34,
Article II of the Ohio Constitution, the majority states, “[L]ike former R.C.
4121.80, R.C. 2745.01 was created to provide immunity for employers from civil
liability for employee injuries, disease, or death caused by the intentional tortious
conduct of employers in the workplace.” I disagree and believe that the opposite is
true. R.C. 2745.01 does not deny but instead expressly provides employees a
statutory avenue of redress for employee injuries caused by employer intentional
torts. Specifically, R.C. 2745.01(A) states:




                                             26
                                 January Term, 1999




         “An employer * * * shall be subject to liability to an employee * * * for
damages for an employment intentional tort.” (Emphasis added.)
         {¶ 59} This language does not remove a right to a remedy. It codifies it.
Codification is not removal.
         {¶ 60} Without question the General Assembly’s definition of intentional
tort sets a higher threshold in defining intentional tort than the court-fashioned
definition. However, it was the court that resurrected the intentional tort exception
to workers’ compensation laws in Blankenship and then diluted its definition in
Jones and its progeny to an act done with knowledge that it is substantially certain
to cause harm, as opposed to an act done with the intent to cause harm. See Bishop
v. Hybud Equip. Corp. (1988), 

42 Ohio App.3d 55, 58

, 

536 N.E.2d 694, 697

.
Further, in the original workers’ compensation laws, there was a willful-act
exception to the exclusivity of the workers’ compensation coverage. See G.C.
1465-76, 104 Ohio Laws 193, 194 (which defined “wilful act” as “an act done
knowingly and purposely with the direct object of injuring another”). Thus, in
effect, R.C. 2745.01, which requires “deliberate intent” to cause injury, does not
remove a right to a remedy; it merely restores the definition of intentional tort to its
proper and original, bargained-for definition. But even this definition was part of
the Jones holding: “An intentional tort is an act committed with the intent to injure
another * * *.” Jones, 

15 Ohio St.3d 90

, 15 OBR 246, 

472 N.E.2d 1046

, at
paragraph one of the syllabus, and, therefore, has already been approved by this
court.
         {¶ 61} The majority also complains that the definitional restrictions in
requiring an employment intentional tort to be deliberate and intentional render the
cause of action illusory. Yet the original definition of “intentional tort” is an act
done with intent to cause harm, not an act done with knowledge that it is
substantially certain to cause harm. Bishop, 

42 Ohio App.3d at 58

, 

536 N.E.2d at 697

. The mere fact the evidence will seldom dictate that an employee has a




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                             SUPREME COURT OF OHIO




legitimate intentional tort case does not render R.C. 2745.01 unconstitutional. I
believe we must uphold the true definition of intentional tort to prevent an
“expansive interpretation of the intentional tort exception [which] would thwart the
[workers’ compensation] scheme by eroding the exclusivity of both the liability and
the recovery provided by workers’ compensation.” Van Fossen, 

36 Ohio St.3d at 113

, 

522 N.E.2d at 501

.
       {¶ 62} It is important to remember, in contrast to the bleak picture the
majority depicts, that there is an avenue of redress for these particularly egregious,
but not quite intentional, acts perpetrated by the employer that cause injury to an
employee. Where an employer violates a specific safety requirement and that
violation causes the employee injury, the employee can recover workers’
compensation benefits and a VSSR award, which works not only to provide
additional compensation to the employee but also to punish the employer for that
conduct.
       {¶ 63} Thus, R.C. 2745.01 does not remove a right to remedy, because
employees have remedies available to them, as they had prior to the enactment of
R.C. 2745.01. For injuries caused by no fault at all or by the negligence or
recklessness of an employer, an employee may recover workers’ compensation
benefits. For injuries caused by more egregious acts of recklessness, an employer
may be fined and employees may receive additional compensation by way of a
VSSR award. Finally, where the employer commits a truly intentional act, the
employee may bring an intentional tort action against the employer pursuant to R.C.
2745.01.
       {¶ 64} Accordingly, I would hold that R.C. 2745.01 does not conflict with
Section 34, Article II of the Ohio Constitution.
                  Section 35, Article II of the Ohio Constitution
       {¶ 65} The majority also finds R.C. 2745.01 unconstitutional because
Section 35, Article II of the Ohio Constitution authorizes only legislation pertaining




                                         28
                               January Term, 1999




to acts that occur within the employment relationship. Therefore, the majority
holds, the General Assembly went beyond the authority of Section 35, Article II of
the Ohio Constitution because R.C. 2745.01 attempts to regulate conduct,
intentional torts, that necessarily occurs outside the employment relationship. I
would hold that the General Assembly has authority beyond Section 35, Article II
of the Ohio Constitution to enact R.C. 2745.01.
       {¶ 66} I believe that the General Assembly never intended to rely on
Section 35, Article II of the Ohio Constitution as authority for enacting R.C.
2745.01. Am.H.B. No. 103, which enacted R.C. 2745.01, states:
       “The General Assembly hereby declares its intent in enacting sections
2305.112 and 2745.01 of the Revised Code to supersede the effect of the Ohio
Supreme Court decisions in Blankenship v. Cincinnati Milacron Chemicals, Inc.
(1982), 

69 Ohio St.2d 608

 [

23 O.O.3d 504

, 

433 N.E.2d 572

] (decided March 3,
1982); Jones v. VIP Development Co. (1982 [sic, 1984]), 

15 Ohio St.3d 90

 [15 OBR
246, 

472 N.E.2d 1046

] (decided December 31, 1982 [sic, 1984]); Van Fossen v.
Babcock & Wilcox (1988), 

36 Ohio St.3d 100

 [

522 N.E.2d 489

] (decided April 14
[sic, 13], 1988); Pariseau v. Wedge Products, Inc. (1988), 

36 Ohio St.3d 124

 [

522 N.E.2d 511

] (decided April 13, 1988); Hunter v. Shenango Furnace Co. (1988), 

38 Ohio St.3d 235

 [

527 N.E.2d 871

] (decided August 24, 1988); and Fyffe v. Jeno’s,
Inc. (1991), 

59 Ohio St.3d 115

 [

570 N.E.2d 1108

] (decided May 1, 1991), to the
extent that the provisions of sections 2305.112 and 2745.01 of the Revised Code
are to completely and solely control all causes of action not governed by Section
35, Article II, Ohio Constitution * * *.” (Emphasis added.) 

Id.

 at Section 3, 146
Ohio Laws, Part I, 758.
       {¶ 67} The General Assembly had authority to enact R.C. 2745.01 under its
general grant of legislative power and did not need to rely on the specific grant of
authority in Section 35, Article II of the Ohio Constitution. And, in fact, the




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                             SUPREME COURT OF OHIO




General Assembly specifically stated that R.C. 2745.01 was to control actions not
governed by Section 35, Article II of the Ohio Constitution.
       {¶ 68} Section 1, Article II of the Ohio Constitution provides that “[t]he
legislative power of the state shall be vested in a General Assembly.” Within this
general grant of authority is the General Assembly’s police power. See Marmet v.
State (1887), 

45 Ohio St. 63

, 70, 

12 N.E. 463

, 468. The General Assembly’s ability
to legislate under the police power “is plenary, except as it may be specifically and
clearly limited in the constitution.” Champaign Cty. Bd. of Commrs. v. Church
(1900), 

62 Ohio St. 318

, 344, 

57 N.E. 50

, 52. Within the scope of these police
powers, the General Assembly “may modify or entirely abolish common-law
actions and defenses.” Thompson v. Ford (1955), 

164 Ohio St. 74

, 79, 

57 O.O. 96

,
99, 

128 N.E.2d 111

, 115. The General Assembly has authority to codify the
common law. See, e.g., Long v. Tokai Bank of California (1996), 

114 Ohio App.3d 116, 123

, 

682 N.E.2d 1052, 1057

 (recognizing the General Assembly’s power to
codify products liability law). Thus, R.C. 2745.01 is a valid exercise of the General
Assembly’s police power because R.C. 2745.01 is a codification and modification
of employer intentional tort case law.
       {¶ 69} While the majority may prefer its own definition of “intentional
tort,” it does not have the right to usurp the General Assembly’s role in this regard
because “[j]udicial policy preferences may not be used to override valid legislative
enactments, for the General Assembly should be the final arbiter of public policy.”
State v. Smorgala (1990), 

50 Ohio St.3d 222, 223

, 

553 N.E.2d 672, 674

.
       {¶ 70} Therefore, I would hold that pursuant to its police power, the General
Assembly had the authority to change and codify the law of employment intentional
torts pursuant to R.C. 2745.01. I would also hold that R.C. 2745.01 addresses acts
that occur outside the scope of employment; therefore, Section 35, Article II of the
Ohio Constitution is no impediment to its enactment.
                                    Conclusion




                                         30
                                January Term, 1999




       {¶ 71} In conclusion, I would find that R.C. 2745.01 does not violate
Section 34, Article II of the Ohio Constitution because it does not deprive
employees of a right to a remedy, but in fact provides an action for an employment
intentional tort. I would further find that R.C. 2745.01 does not violate Section 35,
Article II of the Ohio Constitution because the General Assembly derived the
authority to enact R.C. 2745.01 from its police power. Therefore, I dissent.
                              __________________




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