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Employer intentional torts

Back in 1911, Ohio created the system of workers compensation.  It offered a tradeoff:  workers could receive compensation for their injuries without having to prove their employer was negligent; on the other hand, the compensation was less than the tort system would normally provide, and they gave up their right to sue the employer in tort.  Until 1982, anyway, when the Supreme Court decided in Blankenship v. Cincinnati Milacron Chemicals that employees could still sue their employers for intentional torts.

As Deadheads might say, "What a long strange trip it's been"; since Blankenship the court's struggled mightily to come up with a definition of exactly what constitutes an employer intentional tort.  That the test subsequently adopted in Fyffe v. Jeno's -- the employer had to know of the dangerous condition, know that subjecting the employee to it would create a substantial certainty of harm, and nonetheless require the employee to perform it -- provided something less than crystalline clarity is indicated by the Court's struggle with defining "substantial certainty":  it's more than negligence, more than recklessness, less than specific intent, bigger than a breadbasket, smaller than a Volvo... I had an intentional tort case a couple years back, based on silicosis, and trust me when I tell you that the appellate decisions are all over the lot.

The Ohio legislature, never one to shirk its responsibility of rushing to the aid of its corporate benefactors, first dove into the morass in 1986, enacting a bill which defined the "substantial certainty" aspect of the test for an intentional tort: 

"Substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death.  [My emphasis].

The Supreme Court threw this out in 1991, so in 1995 the Ohio legislature made another pass at the problem, defining "substantially certain" in the exact same fashion:  deliberate intent.  The Supreme Court tossed that four years later, so in 2005 the Ohio legislature took this all to heart and passed a new statute which provided a new definition of the substantial certainty test, to-wit, as we lawyers like to say:

"substantially certain" means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.  [Why bother?]

That the legislature has satisfied Einstein's definition of insanity -- repeating the same act with the expectation of different results -- adds only incrementally to our knowledge of that august body, of course.  The interesting question is whether it's going to make any difference this time around.  It didn't to the 8th District; a few weeks back, in Barry v. A.E. Steel Erectors, it ruled the statute unconstitutional, as the 7th District had earlier this year in Kaminski v. Metal & Wire Products Co

Of course, the Supreme Court's the last word on this, and just last week the Court accepted jurisdiction on Kaminski, with the Usual Suspects, led by the Chamber of Commerce, filing amicus briefs lamenting the outrageous nullification of the statute.  And this is where it might get interesting.  As the court noted in Barry, the prior Supreme Court decisions had not only found problems with the statute -- as the court pointed out, it could result in an employer being held criminally, but not civilly, liable for an injury -- but had determined that the legislature had no business meddling in this area at all:  the Supreme Court had ruled earlier 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.

Of course, that was then, this is now.  The Court had struck down tort reform on prior occasions, too, only to reverse itself earlier this year in Arbino v. Johnson & Johnson, discussed here.  But while the Court in Arbino could pretend that "the statutes before us here are sufficiently different from the previous enactments so as to avoid the blanket application of stare decisis and to warrant a fresh review of their individual merits," there's no such out available this time:  the statute is identical to the ones passed in 1986 and 1995, and subsequently declared unconstitutional.

There's a theory called critical legal studies which postulates that the law is created by the powerful to preserve their position.  It's always been a little too "man the barricades!" for my tastes, but if the Supreme Court reverses a quarter century of precedents and essentially eliminates employer intentional torts, a reassessment of that position might be in order.

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