Page 34 - MetalForming July 2010

Doug Ehlke, a national board-certi- fied civil trial lawyer, has for more than 20 years represented metal- forming companies in OSHA litiga- tion and in labor-union elections. His law practice emphasizes labor law, personal injury, product liabili- ty, probate, estate planning and environmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelawoffices.com
In the early 1980s, the Ohio State Supreme Court broadened the work- er compensation statute exemption for civil intentional tort lawsuits by employees for workplace injuries from “specific intent to injure” (the employ- ee) to simply an employer belief that injury of employees was “substantially certain to occur.” Under that relaxed threshold, numerous injured employees filed for worker’s compensation claim benefits and then filed a claim for civil court damages as well. Multiple employ- er-group efforts led to several tort- reform legislative relief statutes—all of which were declared unconstitutional by Ohio’s Supreme Court, principally because they were overly restrictive (such as requiring high levels of proof by employees such as “clear and con- vincing evidence.”)
But the Ohio legislature kept try- ing, and passed this reform statute to limit, but not abolish such employee tort claims in 2005—Ohio statute, R.C. 2745.01, effective April 7, 2005, pro- viding in its entirety:
“A) An action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employ- ment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortuous act with the intent to injure another or with the belief that the injury was sub- stantially certain to occur.
“B) As used in this section, ‘sub- stantially certain’ means that an employ- er acts with deliberate intent to cause an employee to suffer an injury, a disease,
a condition or death.
“C) Deliberate removal by an
employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was com- mitted with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.
“D) This section does not apply to claims arising during the course of employment involving discrimination, civil rights, retaliation, harassment in violation of Chapter 4112 of the Revised Code, intentional infliction of emo- tional distress not compensable under Chapters 4121 and 4123 of the Revised Code, contract, promissory estoppels or defamation.”
The Ohio State Supreme Court recently saw this as a new approach and took a “fresh look” at the constitution- al issues, and decided on March 23, 2010 that the 2005 statute was consti- tutional and did not “do away with the common law cause of action for employer intentional tort.”
Facts of the Two Cases
In the first case, Stetter et. al. v. R.J. Corman Derailment Services, L.L.C., et. al., the plaintiff, Carl Stetter, sued his employer after receiving broken bones and other injuries when a truck tire he was inflating explosively separated from the rim. He claimed and received work- er’s compensation benefits before filing the civil suit alleging that his company knew of the dangers inherent in the workplace and failed to comply with state/federal safety requirements.
In the second case, Kaminski v. Metal www.metalformingmagazine.com
32 METALFORMING / JULY 2010
YOU & THE LAW DOUGLAS B.M. EHLKE
Law Limiting Employee Workplace Intentional Tort Claims Against Employers Upheld