Johnson v. BP Chemicals, Inc.

707 N.E.2d 1107, 85 Ohio St. 3d 298

Opinions

Douglas, J.

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

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 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. 103, 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.⁴

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.

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.

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 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.

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 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.

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 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.

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

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 dear and convincing evidence that the employer deliberately 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.

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 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

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 Clev.St.L.Rev. 381, 405-406 (“To impose a clear and convincing standard of 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 employeefs] 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.’ ”).

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

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.

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

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.

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.

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:

“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 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.

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 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, 622 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 . 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 appeal’s that R.C. 2745.01(A) is internally inconsistent.

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.”).

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.)

“ ‘Knowingly1 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).

14 . In the ease 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, 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.