Inferred Intent? What Ohio Employers Need to Know

August 21, 2014 by Paul L. Bittner, Partner
Ice Miller can help you implement creative, innovative solutions to attract and retain key employees, while avoiding legal pitfalls. Learn more in our 2014 Labor Law Guides. An excerpt follows:

Inferred Intent? What Ohio Employers Need to Know 

Ohio law generally protects injured employees through workers’ compensation claims filed with the Ohio Bureau of Workers’ Compensation and adjudicated by the Industrial Commission of Ohio. In some workers’ compensation claims, an injured worker can also seek intentional tort damages. This remedy is outside the workers’ compensation system and generally involves a lawsuit filed against the employer in the county in which an injury occurred. These lawsuits typically arise in cases involving serious injuries, such as amputations, burns or death. 
 
Ohio law protects an employer from simple negligence suits filed by employees. However, if an employer is deemed to have intentionally injured its employee, the employee may seek additional damages, such as pain and suffering and punitive damages, in an intentional tort action. Intentional tort lawsuits often arise in situations such as where a safety guard is missing or removed from a machine, management knows about it and nevertheless requires employees to work on the machine, and a serious injury results from the missing guard.
 
Inferred intent
In order for an employee to prove an intentional tort, he/she must establish that the employer:

• Intentionally caused an injury; or
• That sufficiently egregious facts exist to warrant a finding of inferred intent
 
To establish “inferred intent,” an injured worker has been historically required to establish that (1) the employer was aware of a dangerous process or procedure in its workplace; (2) the employer had prior knowledge that if the employee was exposed to this danger, harm would be a substantial certainty; and (3) that despite this prior knowledge, the employer nevertheless required the worker to be exposed to the danger.
 
Limiting intentional tort lawsuits
In 2005, Ohio legislators enacted a statute attempting to limit intentional tort lawsuits. That statute is intended to require that an employee must have proof that an employer actually intended to injure the employee in order to establish a viable intentional tort case. Although found to be constitutional by the Ohio Supreme Court in 2010, there is still confusion as to the phrase “substantial certainty” as used in the statute. For now, Ohio employers can rely upon the intentional tort guidelines set forth in Ohio law for all injuries occurring on or after April 7, 2005.
 
Pre-existing common law standards may remain pertinent, however, in light of likely litigation aimed at minimizing the impact of the statute limiting intentional tort lawsuits. This is especially appropriate as that statute provides there is a presumption of “intent to injure” by the employer in favor of injured employees in situations such as an employer removing a safety device or misrepresenting a hazardous substance.
 
The risk of intentional tort cases to Ohio employers is they can potentially involve jury verdicts or settlements outside the scope of Ohio workers’ compensation coverage and are paid directly by employers. Most commercial insurance policies purchased by employers exclude indemnification for the level of intentionally wrongful conduct necessary to establish an intentional tort. Because most intentional tort lawsuits involve catastrophic injury or death, the exposure from such a case if an employee prevails can be extremely significant. The best defense available to Ohio employers to avoid such exposure is to adopt and enforce a written safety program, with a focus on immediate response to any safety concerns or complaints made by employees. It is when employers either ignore or disregard such safety complaints that intentional tort cases can arise.
 


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