Companies engaged in the construction industry in Ohio are likely aware that employees injured in the workplace have the potential for a greater recovery than in most jurisdictions. Of course, injured workers are able to claim benefits under Ohio’s workers’ compensation system. However, unlike many states, Ohio has a workplace intentional tort claim that creates the possibility of damages in a tort action. A recent court of appeals decision from Ohio has narrowed the scope of such a claim, which is good news for construction employers.

Johnson v. Cincinnati Ins. Co., 10th Dist. No. 12AP-966, 2013-Ohio-2749, addressed the claim of the estate of a construction worker who died when he fell from an unsecured scaffold while installing bricks. The worker’s wife, the administrator of his estate, filed an intentional-tort claim against her husband’s employer, claiming that the company deliberately intended to cause injury to her husband. The issue before the court was whether the plaintiff proved that the construction company deliberately intended to cause injury to the decedent – the applicable standard under Ohio law.

Like most states, Ohio has a no-fault workers’ compensation system, which compensates employees for workplace injuries while assuring employers that they won’t be forced to defend a lawsuit every time a workplace injury occurs. Employer intentional torts are an exception to this general rule. Ohio courts have recognized employer intentional torts as a common law theory of recovery for injured workers beginning with Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St.2d 608 (1982). Generally, while the standard has evolved as the Ohio Supreme Court and Generally Assembly have repeatedly modified it, Ohio law has allowed recovery where the employer has some level of knowledge of a safety hazard and that it was likely to cause injury to an employee.

However, the most recent version of the statute sets forth a higher standard, requiring that the plaintiff prove “that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.” The law defines “substantially certain” as an employer acting with “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” While there is an exception for the employer’s removal of a safety guard, the Ohio Supreme Court in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250 (2010), has upheld the constitutionality of the law. Not surprisingly, it has proven very difficult for employees to recover under this standard.

Johnson follows this trend. In reaching its holding, the Tenth District noted that the supervisor had not instructed the worker to perform work in the area where he was injured, and the supervisor had no knowledge that the worker was on the unsecured scaffold and had not approved the scaffold for use. The court held that the plaintiff did not raise a genuine issue of material fact as to the company’s deliberate intent to harm the worker.

Absent the most egregious circumstances where the intent to injure is established, employers are protected from workplace injuries under Ohio’s workers’ compensation system. The Ohio General Assembly and the courts are making it clear that the exclusive remedy provision of the workers’ compensation statute applies to nearly all workplace injuries.


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