Johnson v. Kindred Healthcare, Inc. ( 2008 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0270n.06
Filed: May 16, 2008
07-3726
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TRACY L. JOHNSON, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
KINDRED HEALTHCARE, INC., a/k/a ) SOUTHERN DISTRICT OF OHIO
KINDRED NURSING CENTERS EAST, )
LLC, d/b/a MINERVA PARK NURSING )
AND REHABILITATION CENTER, )
Defendants-Appellees. )
Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.
PER CURIAM. The plaintiff, Tracy Johnson, appeals the district court’s grant of
summary judgment to the defendant, Kindred Nursing Centers East, LLC, doing business
as Minerva Park Nursing and Rehabilitation Center, on Johnson’s state-law claim that her
employer knew of a dangerous health condition in its facility and intentionally failed to
protect her from that known harm. The district court held that Johnson “failed to establish
the most salient features of the employer intentional tort: employer’s knowledge of the
dangerous condition and intentional exposure of the employee to that condition.”
The record establishes that while working as a nursing assistant at the defendant’s
facility, Johnson was unwittingly exposed to methicillin-resistant staphylococcus aureus
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Johnson v. Kindred Healthcare, Inc.
(MRSA), which is highly infectious, when she went to the rescue of an elderly patient in
imminent danger of falling out of bed and, thus, did not have time to don protective gloves
that would have prevented her from becoming infected with MRSA. At the time of the
plaintiff’s contact with the MRSA-infected patient, the nursing facility was unaware of the
nature of the patient’s infection and, indeed, was not notified that he suffered from MRSA
until four days after the plaintiff was diagnosed with MRSA and more than a month after
her contact with the patient.
The plaintiff’s complaint theorized that the defendant must have known that the
infection was MRSA and, therefore, had intentionally and knowingly subjected her to a
dangerous condition by allowing her to come into close physical contact with the MRSA-
infected patient. Applying Ohio state law, the district court recognized, as have we, that
“[i]n most circumstances, an employee injured in the course of employment is limited to
redress through the Ohio Workers’ Compensation Act. The Workers’ Compensation Act,
although generally comprehensive, contains certain limited exceptions. One such
exception exists for injuries resulting from an employer’s intentional tort upon an
employee.” Jandro v. Ohio Edison Co., 167 F.3d 309, 313 (6th Cir. 1999) (citation
omitted).
Under Ohio law, in order to establish that an employer is liable for committing an
intentional tort upon an employee, a plaintiff must prove that: “(1) the defendant had
knowledge of the existence of a dangerous condition, process, procedure, or
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instrumentality, (2) the employer knew with substantial certainty that the employee was
likely to suffer harm, and (3) the employer required the employee to perform the job despite
its knowledge of the danger.” Id. (citing Fyffe v. Jeno’s, Inc., 570 N.E.2d 1108, 1112 (Ohio
1991)). Furthermore, in Sanek v. Duracote Corp., 539 N.E.2d 1114, 1117 (Ohio 1989), the
Ohio Supreme Court emphasized that “[t]he plaintiff has the burden of proving by a
preponderance of the evidence that the employer had ‘actual knowledge of the exact
dangers which ultimately caused’ injury.” (Citing Van Fossen v. Babcock & Wilcox Co., 522
N.E.2d 489, 501 (Ohio 1988)).
The district court held, correctly, that the plaintiff’s case failed on the knowledge
prong, noting that Johnson “fail[ed] to point to any facts demonstrating Defendant’s actual
knowledge of an MRSA infection prior to” the time of her own diagnosis. Having had the
benefit of oral argument, and having studied the record on appeal and the briefs of the
parties, we are not persuaded that the district court erred in dismissing the complaint.
Because the reasons why summary judgment was appropriately entered for the defendant
have been fully articulated by the district court, the issuance of a detailed opinion by this
court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM
the judgment of the district court upon the reasoning set out by that court in its opinion and
order entered on April 23, 2007.
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