Blankenship v. Cincinnati Milacron Chemicals, Inc.

433 N.E.2d 572, 69 Ohio St. 2d 608, 23 Ohio Op. 3d 504, 1982 Ohio LEXIS 620

• Court: Ohio Supreme Court
• Decided: March 3, 1982
• Docket: No. 81-402
• Status: Published

Opinions

William B. Brown, J.

The sole issue raised in this appeal is whether the trial court properly granted appellees’ motion to dismiss appellants’ complaint on the grounds that an employee is barred by Section 35, Article II of the Ohio Constitution, and R. C. 4123.74 and 4123.741 from prosecuting an action at law for an intentional tort.

At the outset, it must be remembered that the appellants are appealing from an order granting a motion to dismiss pursuant to Civ. R. 12(B)(1) and (6). In O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, this court stated that “[i]n order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12 [B] [6]), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery. (Conley v. Gibson, 355 U. S. 41, followed.)” And, in Steffen v. General Telephone Co. (1978), 60 Ohio App. 2d 144, 145, it was stated that, in considering a motion which claims lack of jurisdiction over the subject matter (Civ. R. 12[B][1]), “a similar principle controls: * * * the question is whether the plaintiff has alleged any cause of action cognizable by the forum.”

Thus, the purpose of this appeal is not to try the factual issues presented by this complaint, but rather to determine whether the facts alone are sufficient to withstand a motion based on Civ. R. 12(B)(1) and (6). After carefully reviewing the complaint and seriously considering the arguments presented, this court, for the reasons stated .hereinafter, finds that the complaint in question is sufficient to withstand such a challenge.

The primary focus of the dispute between the parties centers upon the question of whether the Workers’ Compensation Act (R. C. 4123.35 et seq.) is intended to cover an intentional tort committed by employers against their employees. Section 35, Article II of the Ohio Constitution, serves as a basis for legislative enactments in the area of workers’ compensation by providing, in pertinent part:

“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 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. * * * ”

The constitutional mandate has been implemented by R. C. 4123.74 which provides:

“Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment * * * whether or not such injury, occupational disease [or] bodily condition * * * is compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code.” (Emphasis added.)⁶

Clearly, neither the relevant constitutional language nor the pertinent statutory language expressly extend the grant of immunity to actions alleging intentional tortious conduct by employers against their employees. The General Assembly, however, in enacting R. C. 4123.95, established a rule of construction which is clearly of assistance in determining the scope of employer immunity. This section provides that:

“Sections 4123.01 to 4123.94, inclusive, of the Revised Code, shall be liberally construed in favor of employees and the dependents of deceased employees.”

It is with this requirement in mind that we address the language in R. C. 4123.74. The emphasized language in R. C. 4123.74 quoted above, as was noted in Delamotte v. Midland Ross (1978), 64 Ohio App. 2d 159, 161, “ * * * clearly limits the categories of injuries for which the employer is exempt from civil liability.” By designating as compensable only those injuries “ * * * received or contracted * * * in the course of or arising out of * * * employment * * * ,”' the General Assembly has expressly limited the scope of compensability. In so doing, the General Assembly surely did not intend to remove all remedies from the employee whose injury is not compensable under the Act.⁷ And, by its use of this phrase, the General Assembly has seemingly allowed the judiciary the freedom to determine what risks are incidental to employment in light of the humanitarian purposes which underlie the Act.

In this regard, this court further agrees with the Delamotte court that where an employee asserts in his complaint a claim for damages based on an intentional tort, “ * * * the substance of the claim is not an ‘injury * * * received or contracted by any employee in the course of or arising out of his employment’ within the meaning of R. C. 4123.74 * * * .” Id. No reasonable individual would equate intentional and unintentional conduct in terms of the degree of risk which faces an employee nor would such individual contemplate the risk of an intentional tort as a natural risk of employment.⁸ Since an employer’s intentional conduct does not arise out of employment, R. C. 4123.74 does not bestow upon employers immunity from civil liability for their intentional torts and an employee may resort to a civil suit for damages. Accord Barley v. Harrison Manufacturing (No. E-80-75, May 22, 1981), Sixth District Court of Appeals, unreported; Pariseau v. Wedge Products, Inc. (No. 43195, May 7, 1981), Eighth District Court of Appeals, unreported.⁹

This holding not only comports with constitutional and statutory requirements, but it is also consistent with the legislative goals which underlie the Workers’ Compensation Act.

The workers’ compensation system is based on the premise that an employer is protected from a suit for negligence in exchange for compliance with the Workers’ Compensation Act. The Act operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability.¹⁰ But the protection afforded by the Act has always been for negligent acts and not for intentional tortious conduct.¹¹ Indeed, workers’ compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional torts are covered under the Act would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act.

It must also be remembered that the compensation scheme was specifically designed to provide less than full compensation for injured employees.¹² Damages such as pain and suffering and loss of services on the part of a spouse are unavailable remedies to the injured employee. Punitive damages cannot be obtained. Yet, these damages are available to individuals who have been injured by intentional tortious conduct of third parties, and there is no legitimate reason why an employer should be able to escape from such damages simply because he committed an intentional tort against his employee.

In addition, one of the avowed purposes of the Act is to promote a safe and injury-free work environment. (R. C. 4101.11 and 4101.12.)¹³ 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.

Moreover, as this court noted in State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 274, workers’ compensation “ * * * is founded upon the principle of insurance * * * .”¹⁴ An insurance policy does not protect the policy holder from the consequences of his intentional tortious act. Indeed, it would be against public policy to permit insurance against the intentional tort. See, generally, Northwestern National Cas. Co. v. McNulty (C.A. 5, 1962), 307 F. 2d 432.

The use of the element of intent in workers’ compensation is in no way novel. Under R. C. 4123.54, an employee is denied benefits when he inflicts an injury upon himself intentionally. This section thus illustrates that intent plays an important role in the determination of whether an injury is compensable.

In conclusion, it is for the trier of fact to initially determine whether the alleged conduct constitutes an intentional injury. In the instant case, the facts will demonstrate whether an intentional tort occurred or whether the injuries received by appellants were incurred in the course of and arising from appellants’ employment such that the worker’s compensation remedy would be exclusive. These questions of fact, however, are not properly determinable by a Civ. R. 12(B)(6) motion to dismiss, for the lower court had before it insufficient facts to determine as a matter of law that appellants’ complaint was barred. Appellants should be given an opportunity to prove their allegations that their employer committed an intentional tort causing them injury.

For the foregoing reasons, the judgment of the Court of Appeals is reversed, and this cause is remanded for further proceedings according to law.

Judgment reversed.

Celebrezze, C. J., Sweeney and C. Brown, JJ., concur. Locher, J., concurs in part and dissents in part. Holmes and Krupansky, JJ., dissent.

6 The emphasized language was added to the statute in 1959. (128 Ohio Laws 743, 770.)

R. C. 4123.741 is also relevant to the resolution of this case. That section provides that:

“No employee of any employer, as defined in division (B) of section 4123.01 of the Revised Code, shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee’s employment, * * * on the condition that such injury, occupational disease or death is found to be compensable under sections 4123.01 to 4123.94, inclusive of the Revised Code.”

7 As was stated in Mercer v. Uniroyal, Inc. (1976), 49 Ohio App. 2d 279, 285, “ * * * [w]hen the initiating cause is not a hazard of employment, there is no causal connection between the employment and the injury.”

Thus, at some point, the employment relationship terminates and the intentionally inflicted injury cannot be considered compensable under a system that has been promulgated to insure against accidents which occur within the scope of employment.

Appellees cite Greenwalt v. Goodyear Tire & Rubber Co. (1955), 164 Ohio St. 1, as authority for their position. This case is, however, factually distinguishable. The intentional misconduct of the employer in Greenwalt amounted to fraud perpetrated toward the employee that deprived the employee of workers’ compensation benefits. Whereas the intentional conduct in Greenwalt involved omission, the intentional conduct alleged herein involved commission. Here, the employees allegedly suffered direct physical harm as a result of the alleged intentional torts of their employer.

8 In Toth v. Standard Oil Co. (1953), 160 Ohio St. 1, 5, this court stated that “injury” as used in the Ohio Workers’ Compensation Act, comprehends a physical or traumatic damage or harm, accidental in its character in the sense of being unforeseen, unexpected and unusual.

An intentional tort, then, is clearly not an “injury" arising out of the course of employment. This very point was recognized in Boek v. Wong Hing (1930), 180 Minn. 470, 231 N.W. 233, wherein it was stated, at page 471, that it would be a “perversion of” the Workmen’s Compensation Act’s purpose to allow employers immunity from intentional torts. Indeed, it would be travesty on the use of the English language to allow someone who intentionally inflicts an injury on another to call the injury a work incident.

9 See, also, Boek v. Wong Hing, supra; Artonio v. Hirseh (1957), 163 N.Y. Supp. 2d 489, 3 A.D. 2d 939; Cohen v. Lion Products Co. (D.C. Mass. 1959), 177 F. Supp. 486; Skelton v. W. T. Grant Co. (C.A. 5, 1964), 331 F. 2d 593; 2A Larson, Workmen’s Compensation Law 13-1, Section 68.

10 2A Larson, Workmen’s Compensation Law 12-1, Section 65.10, at 12-4.

11 As was stated in Mandolidis v. Elkins Industries, Inc. (W. Va. 1978), 246 S.E. 2d 907, 913:

“The workmen’s compensation system completely supplanted the common law tort system only with respect to negligently caused industrial accidents, and employers and employees gained certain advantages and lost certain rights they had heretofore enjoyed. Entrepreneurs were not given the right to carry on their enterprises without any regard to the life and limb of the participants in the endeaver and free from all common law liability.” (Emphasis sic.)

12 This court stated in State, exrel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 275, that:

“ * * * [Workers’ Compensation] was never intended by the most ardent advocates of * * * [it] to give full and adequate remuneration, because this would remove much of the inducement of * * * [workers] to exercise care and caution on their own part.”

13 Not only is an employer required to provide a safe workplace under Ohio law, but under federal law, no employee may be discriminated against because he refuses to work when he has a reasonable belief that his health and safety are in jeopardy. See Whirlpool Corp. v. Marshall (1980), 445 U. S. 1.

14 See, also, R. C. 4123.29.