Monnin v. Larger Construction Co. ( 1995 )

I concur with the judgment of the majority affirming the trial court's dismissal of appellant's third claim, on the basis of the relevant workers' compensation law. However, I respectfully dissent from the majority in reversing the trial court's dismissal of the claims based upon intentional tort, because the cause of action alleged by the appellant fails to meet the standard established by the Supreme Court in Mitchell v. LawsonMilk Co. (1988), 40 Ohio St.3d 190, 532 N.E.2d 753, and Byrd v.Faber (1991), 57 Ohio St.3d 56, 565 N.E.2d 584. The Supreme Court in Byrd reiterated the Mitchell standard for pleading an intentional tort claim against an employer as a "heightened standard of pleading" wherein a plaintiff must set forth "certain facts with particularity" which clearly support the complaint's allegations of intent. I do not find appellant's allegations against appellee to be thus supported.

In paragraph 5 of the complaint appellant alleges that the decedent had previously fallen from a building while working for the appellee and that appellee failed to provide fall-protective equipment before and after that fall. In my opinion that paragraph contributes nothing to appellant's cause of action. The fact that the decedent fell in 1989 means nothing unless the fall can be connected to the same type of work that was being performed when he was killed. Only then could it be construed to mean that the employer was on notice about the hazards connected with the work. Moreover, appellant failed to even suggest thatany incidents had occurred in appellee's construction operation which would put appellee on notice that the decedent's accident was substantially certain to occur.

In paragraph 6 of the complaint appellant alleges that the roofing material being installed was covered with oil. This is a fact which we are required to accept as true while considering a Civ.R. 12(B)(6) motion. The rest of this paragraph, however, recites a conclusion that this oil coating virtually assured that workers walking on the sheeting would slip on this oil and fall. This is merely an unsupported conclusion. Missing from this paragraph is a factual allegation that the workers were required to walk on the oil-coated sheeting to complete the installation. See Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740,746, 651 N.E.2d 1314, 1317.

As the court noted in Mitchell, even if the employer failed to equip its employees with safety devices or failed to provide its employees with safety training, "it does not follow that [the employer] knew that injury to its employees was certain, or substantially certain, to result." Mitchell,40 Ohio St.3d at 192-193, 532 N.E.2d at 755-756. Furthermore, the assertion of the simple fact that a particular type of work is dangerous is never enough to establish the employer's knowledge in an intentional tort claim. As the Supreme Court has stated, the purposes of the Workers' Compensation Act must not be "circumvented simply because a known risk later blossoms into reality." Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100,116, 522 N.E.2d 489, 504. As further noted by the court:

"There are many acts within the business or manufacturing process which involve the existence of dangers, where management fails to take corrective action, institute safety measures, or properly warn the employees of the risks involved. Such conduct may be characterized as gross negligence or wantonness on the part of the employer. However, in view of the overall purposes of our Workers' Compensation Act, such conduct should not be classified as an "intentional tort" and therefore an exception, under Blankenship [v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572] orJones [v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246,472 N.E.2d 1046] to the exclusivity of the Act." Id.,36 Ohio St.3d at 117, 522 N.E.2d at 504.

In paragraph 7 of the complaint appellant alleges that appellee knew of the dangers involved in steel construction and the safety procedures required because a manager of the appellee had attended a seminar on this subject. Again I find this paragraph adds nothing to appellant's cause of action. Without some allegation that the seminar discussed the same type of construction in which the decedent was involved at the time of the accident, this allegation is meaningless.

In paragraph 9 of the complaint appellant alleges that appellee knew that injury was certain to occur for three reasons. First, there had been a previous fall. Second, the metal sheeting was coated with oil. Third, appellee's manager had attended a seminar on steel construction and safety procedures. As I have pointed out above, these three allegations are not substantiated by specific, supporting facts relevant to the fall which caused the death of appellant's decedent. Appellant's amended complaint contains only the unsupported assertions that the defendant knew the metal sheeting used on the job was slippery, that previous accidents of some type had occurred, that the defendant had received some type of safety training, and that the defendant had failed to provide safety equipment for its workers installing roofing materials.

As previously noted, even "gross negligence" or "wantonness" on the part of an employer in failing to supply safety equipment is not sufficient to show intent. See Van Fossen,36 Ohio St.3d at 117, 522 N.E.2d at 504. Accordingly, a claimant must allege "facts which show the employer's actual knowledge of thesituation, even to survive a motion to dismiss on the pleadings. See, generally, Mitchell [supra]." (Emphasis added.)Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740, 746,651 N.E.2d 1314, 1317 (citing Fyffe v. Jeno's, Inc. [1991],59 Ohio St.3d 115, 570 N.E.2d 1108).

This leaves appellant's allegation that the roofing material was covered with oil as the only allegation which survives the Civ.R. 12(B)(6) motion. Thus, I conclude that the complaint fails to set forth a valid claim of intentional tort.

For the foregoing reasons, I would find that the complaint in question does not withstand a Civ.R. 12(B)(6) motion. As stated by the court in Mitchell, "[u]nsupported conclusions that [an employer] committed an intentional tort are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion. * * * Virtually every injury in the workplace can be made the basis for a claim of intentional tort if the unsupported conclusion that the employer intended to injure the employee is allowed to prevail over factual allegations which preclude the possibility of intentional tort. We do not serve the interest of employees, employers or the administration of justice in the already over-docketed courts of Ohio if we permit claims to go forward which, on the face of the pleading, have no chance of success." Id.,40 Ohio St.3d at 193, 532 N.E.2d at 756.

I would affirm the judgment of the trial court dismissing the intentional tort claim against appellee.