Kunkler v. Goodyear Tire & Rubber Co.

522 N.E.2d 477, 36 Ohio St. 3d 135, 1988 Ohio LEXIS 94

• Court: Ohio Supreme Court
• Decided: April 13, 1988
• Docket: No. 87-425
• Status: Published

Opinions

H. Brown, J.

Before deciding whether' summary judgment was proper, we must determine whether the provisions of R.C. 4121.80 apply to the case at bar and, if so, whether the statute can operate retroactively without violating the Ohio Constitution.

I

R.C. 4121.80 was enacted to govern actions alleging intentional torts committed by employers against their employees. Such intentionally tortious conduct is not protected by the immunity from civil liability granted to employers by the Ohio Constitution and the Ohio Revised Code.¹ Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St. 2d 608, 23 O.O. 3d 504, 433 N.E. 2d 572, syllabus.

In deciding whether the legislature intended the provisions of the intentional tort claims statute (R.C. 4121.80) to govern the cause before us, we turn to the language of the statute.

Subsection (H) states:

“This section applies to and governs any action based upon a claim that an employer committed an intentional tort against an employee pending in any court on the effective date of this section and all claims or actions filed on or after the effective date, notwithstanding any provisions of any prior statute or rule of law in this state.” (Emphasis added.)

Appellant Goodyear argues that the case herein was “pending in any court” on August 22, 1986 (the effective date of R.C. 4121.80) because it was pending in the court of appeals from February 13, 1986 until January 7, 1987. We agree.

The phrase “pending in any court” is not defined in the statute nor elsewhere in the Workers’ Compensation Act. In the absence of clear legislative intent to the contrary, words and phrases in a statute shall be read in context and construed according to their plain, ordinary meaning. Youngstown Club v. Porterfield (1970), 21 Ohio St. 2d 83, 50 O.O. 2d 198, 255 N.E. 2d 262.

We concluded in State, ex rel. Cleveland Ry. Co., v. Atkinson (1941), 138 Ohio St. 157, 20 O.O. 162, 34 N.E. 2d 233, that a “pending” proceeding includes a subsequent appeal. We adhere to the reasoning by which we reached that conclusion.

Accordingly, we hold that when an appeal has been commenced in the court of appeals but the court has not yet disposed of the case on its merits, the case is pending for the purpose of applying R.C. 4121.80.

II

Since the case was pending in the court of appeals on August 22, 1986 (the effective date of R.C. 4121.80), we must next decide whether the legislature can, without violating the Ohio Constitution, make the definition of intentional tort retroactive to actions which accrued prior to August 22, 1986.

Because R.C. 4121.80(H) expressly makes the statute retroactive, the statute must be scrutinized in light of Section 28, Article II of the Ohio Constitution, which provides in part: “The general assembly shall have no power to pass retroactive laws * *

This constitutional bar has been frequently interpreted by the courts in this state. It has been established that the proscription against retroactivity applies to laws affecting substantive rights but not to the procedural or remedial aspects of such laws. French v. Dwiggins (1984), 9 Ohio St. 3d 32, 9 OBR 123, 458 N.E. 2d 827; Kilbreath v. Rudy (1968), 16 Ohio St. 2d 70, 45 O.O. 2d 370, 242 N.E. 2d 658; State, ex rel. Slaughter, v. Indus. Comm. (1937), 132 Ohio St. 537, 542, 8 O.O. 531, 534, 9 N.E. 2d 505, 508. In making the distinction between substantive and remedial, we are guided by State, ex rel. Holdridge, v. Indus. Comm. (1967), 11 Ohio St. 2d 175, 178, 40 O.O. 2d 162, 164, 228 N.E. 2d 621, 623:

“* * * [Substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress."

Subsection (G)(1) of R.C. 4121.80 defines the elements of an intentional tort committed by an employer upon an employee. It provides in part:

“(1) ‘Intentional tort’ is an act committed with the intent to injure ahother or committed with the belief that the injury is substantially certain to occur. U * * *

“ ‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.”

This is substantive law. It defines the cause of action. It purports to govern the rights and duties of the employee and the employer.

Appellant Goodyear implies in its reply brief that subsection (G)(1) of the new statute merely reiterates the common-law definition of an intentional tort expressed in Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046, and thus does not impair or restrict the common-law intentional tort cause of action. The argument is specious. If the statute works no change in the common-law definition of intentional tort, the exercise in determining whether the statute applies to this case would be pointless.

Since the new statute purports to create rights, duties and obligations, it is (to that extent) substantive law. State, ex rel. Holdridge, supra; State, ex rel. Slaughter, v. Indus. Comm., supra.

Therefore, we hold that R.C. 4121. 80(G)(1) does not apply to intentional tort causes of action arising prior to August 22, 1986, the effective date of the statute. Accordingly, whether summary judgment was proper in this case must be resolved under the law as it existed prior to the enactment of R.C. 4121.80. In view of this holding, we need not analyze the extent of the change to the definition of intentional tort (as between employees, and employers) that has been wrought by R.C. 4121.80(G)(1).

III

In deciding whether the trial court correctly granted summary judgment to Goodyear, we must follow Civ. R. 56² and view the record in the light most favorable to the party opposing the motion. Williams v. First United Church of Christ (1974), 37 Ohio St. 2d 150, 66 O.O. 2d 311, 309 N.E. 2d 924. Further, the inferences to be drawn from the underlying facts contained in depositions, affidavits, and exhibits must be construed in the opposing party’s favor. When so construed, the motion must be overruled if reasonable minds could find for the party opposing the motion. Hounshell v. American States Ins. Co. (1981), 67 Ohio St. 2d 427, 433, 21 O.O. 3d 267, 271, 424 N.E. 2d 311, 315.

The standard for establishing an intentional tort in an employment situation has been addressed in Jones, supra, and Blankenship, supra. In the aftermath of those decisions, we see that some confusion remains, within the bench and bar. This confusion manifests itself in a failure to distinguish intentionally from recklessness and negligence, and from finding intentional tort in facts which show only recklessness.

To establish an intentional tort there must be proof beyond that required to prove negligence and beyond that to prove recklessness. It is in this context that the facts should be examined to determine whether an employer has acted despite a known threat that harm to an employee is substantially certain to occur. Comment b to Section 8A of 1 Restatement of the Law 2d, Torts (1965) 15, expresses the differences among negligence, recklessness and intentional tort and addresses the precise point at issue when it states:

“* * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ.” See, also, Prosser & Keeton, Law of Torts (5 Ed. 1984) 35, Section 8.

Of course, the standard emerges not so much from the words used to formulate the test as it does from the decisions rendered in response to specific fact situations. Such is the nature of the common law.³

The question before us in this case becomes: Weighing the evidence and inferences favorable to appellees, was there reliable, probative evidence to show that Goodyear intentionally proceeded despite a known threat of harm to others which was substantially certain to occur?

The appellees submitted the affidavit of George Tucker. Tucker, an employee of Goodyear, swore that on three occasions prior to the one at issue here (the most recent being the day before appellees were injured) he had experienced an explosion inside Banbury No. 4 while mixing Stock No. 33377. The stock number, as used by Goodyear, is a short-hand specification of the ingredients to be mixed and of the manner in which the mixture is to be conducted. Tucker swore that on each of these occasions he reported the explosion to the supervisor, James Strayhand, who told Tucker: “run the thing anyway.” The appellees proceeded to again mix Stock No. 33377 in Banbury No. 4, at which time the explosion which injured the appellees occurred. Since the same stock number was used, the inference could be drawn that Goodyear directed the mixture of ingredients known to have caused three previous explosions and which would, with substantial certainty, result in employee injury.

In his deposition, Strayhand denies Tucker’s assertions. Strayhand specifically states that he never told anyone to go ahead in spite of complaints. Additional evidence can be marshaled in favor of appellant.⁴ However, we are not finders of fact. We are not permitted to indulge in a weighing of the substantial evidence submitted on behalf of appellant. To do so would violate deeply ingrained standards of appellate review because this case comes to us from a ruling on summary judgment.

The evidence submitted by the parties is contradictory and we find that a genuine issue of materia! fact exists. Using the test announced in Blankenship, supra, and the Restatement, supra, reasonable minds could differ on the question of whether Goodyear’s conduct was intentional. “Where the facts alleged are such that reasonable minds could differ as to whether the defendant’s conduct was intentional, a jury question is created which ordinarily may not be resolved by summary judgment.” Jones, supra, at 96, 15 OBR at 251, 472 N.E. 2d at 1052; Cascone v. Herb Kay Co. (1983), 6 Ohio St. 3d 155, 6 OBR 209, 451 N.E. 2d 815, paragraph two of the syllabus.

Based on the foregoing, we affirm the holding by the court of appeals that summary judgment was improper and remand the cause to the trial court for further proceedings in accordance with this opinion.

Judgment affirmed.

Sweeney, Douglas and Wright, JJ., concur. Moyer C.J., Holmes and Loch-er, JJ., dissent.

1 Section 35, Article II of the Ohio Constitution is the basis for legislative enactments in the workers’ compensation area and in part 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. * * *” (Emphasis added.)

R.C. 4123.74 implements this constitutional dictate and provides in part:

“* * * [Ejmployers 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 * * (Emphasis added.)

2 Civ. R. 56(C), in pertinent part, provides:

“* * * Summary judgment shall be rendered forthwith if the pleading, depositions, * * * affidavits * * * timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor.”

3 The definition of intentional tort contained in R.C. 4121.80(G)(1) appears to focus on the consequence of an act rather than upon the act itself. The statute states:

“ ‘Substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.”

This standard may be close to that pronounced in 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A, which states:

“The word ‘intent’ is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.”

The definition of intentional tort in R.C. 4121.80(G)(1) is not necessarily antagonistic to, or different from, the standard set by the Restatement. However, the need to apply R.C. 4121.80(G)(1) to a specific set of facts is not before us.

4 See dissenting opinion herein.