Vacha v. N. Ridgeville , 2011 Ohio 2446 ( 2011 )

[Cite as Vacha v. N. Ridgeville, 2011-Ohio-2446.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
LISA VACHA C.A. No. 10CA009750
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NORTH RIDGEVILLE, OHIO (CITY OF), COURT OF COMMON PLEAS
et al. COUNTY OF LORAIN, OHIO
CASE No. 08CV156999
Appellants
DECISION AND JOURNAL ENTRY
Dated: May 23, 2011
Per Curiam.
{¶1} Appellant, the city of North Ridgeville, appeals from a judgment of the Lorain
County Court of Common Pleas that denied its motion for summary judgment on its defense that
it was immune from civil liability to its former employee, Lisa Vacha. This Court affirms in part
and reverses in part.
I.
{¶2} On June 2, 2006, Lisa Vacha was raped by a coworker, Charles Ralston, while she
was working a shift with him at the French Creek Wastewater Treatment Plant, which is owned
and operated by the city of North Ridgeville. Shortly after the incident, Vacha applied for
worker’s compensation benefits, seeking recovery for the physical and psychological injuries
that she sustained in the attack. Although the specific details of her workers’ compensation
claim are not clear from the record, Vacha’s application was approved and she was granted
permanent total disability benefits.
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{¶3} Vacha later filed this action against the city, alleging that it was liable for her
injuries that resulted from the rape, on theories that included vicarious liability, negligent and
reckless hiring and supervision of Ralston, and that the city committed an employer intentional
tort by employing Ralston. The city eventually moved for summary judgment on all of Vacha’s
claims. It asserted, among other things, that it was entitled to immunity under R.C. 4123.74
and/or R.C. 2744.02. Although the trial court granted the city summary judgment on Vacha’s
claims for vicarious liability, it denied the city’s motion for summary judgment on her remaining
claims. The trial court found that there were genuine issues of material fact on those claims,
implicitly rejecting the city’s immunity defenses. Pursuant to R.C. 2744.02(C), the city appealed
the trial court’s denial of its immunity defenses, raising two assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE LOWER COURT ERRED WHEN IT DENIED THE APPELLANT/CITY
OF NORTH RIDGEVILLE THE BENEFIT OF IMMUNITY UNDER R.C.
CHAPTER 4123.”
{¶4} The city’s first assignment of error is that the trial court erred in denying its
motion for summary judgment on Vacha’s remaining claims because it was entitled to
immunity under R.C. 4123.74, which provides that worker’s compensation is an employee’s
exclusive remedy against her employer for workplace injuries. For ease of discussion, this
Court will address Vacha’s claims based on the city’s alleged negligence and recklessness
separately from her employer intentional tort claim.
Negligent and Reckless Hiring and Supervision
{¶5} The city first argued that it was immune from liability for Vacha’s claims for
negligent and reckless hiring and supervision of Ralston. R.C. 4123.74 provides that employers
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who are in full compliance with their obligation to pay workers’ compensation premiums “shall
not be liable to respond in damages” for “any injury *** received or contracted by any
employee in the course of or arising out of his employment[.]” The statute is a codification of
the principle set forth in Section 35, Article II of the Ohio Constitution that workers’
compensation benefits will be an employee’s exclusive remedy against her employer for
workplace injuries and provides, in part:
“Such compensation shall be in lieu of all other rights to *** damages, for such
*** injuries *** and any employer who pays the premium or compensation
provided by law *** shall not be liable to respond in damages at common law or
by statute for such *** injuries[.]”
{¶6} The philosophy behind the exclusivity of the worker’s compensation system is to
balance the competing interests of employer and employee “‘whereby employees relinquish
their common law remedy and accept lower benefit levels coupled with the greater assurance of
recovery and employers give up their common law defenses and are protected from unlimited
liability.’” Bunger v. Lawson Co. (1988), 82 Ohio St.3d 463, 465, quoting Blankenship v.
Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 614.
{¶7} At the time Vacha was assaulted by Ralston, R.C. 4123.01(C) defined the term
“injury” for purposes of the workers’ compensation act to include: “any injury *** received in
the course of, and arising out of, the injured employee's employment.” It further provided that
“‘[i]njury” does not include ***[p]sychiatric conditions except where the conditions have arisen
from an injury or occupational disease[.]” The Ohio Supreme Court has repeatedly construed
this provision to mean that a psychiatric condition does not constitute a compensable “injury”
under the workers’ compensation system unless it accompanies a physical injury. See, e.g.,
McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, at paragraph one of the
syllabus; Kerans v. Porter Paint Co. (1991), 61 Ohio St.3d 486.
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{¶8} To support its motion for summary judgment under R.C. 4123.74, the city pointed
to evidence that it was in full compliance with the payments of its workers’ compensation
premiums and that Vacha had sustained an “injury” within the meaning of the worker’s
compensation act because she had applied for workers’ compensation benefits and her claim
had been approved. It specifically pointed to evidence that the sexual assault had caused Vacha
to sustain both physical and psychological injuries, that she applied for workers’ compensation
benefits for those injuries, that her workers’ compensation claim had been approved, and that
she was receiving permanent total disability benefits. Vacha admitted in her answers to
interrogatories and when deposed by defense counsel that she had sustained physical injuries
during the rape that included bruises, muscle soreness, chipped teeth, and an injured right
shoulder. She testified that, after the rape, she “was so sore that [she] was bedridden for four
days” and that she had her shoulder x-rayed five days after the rape because she thought that
Ralston had dislocated it. Vacha further explained that she had been regularly seeing a
psychologist and a psychiatrist, who had prescribed an antidepressant and sleep aid, and that all
of those expenses are covered by her worker’s compensation benefits.
{¶9} In opposition to the city’s motion for summary judgment, Vacha did not dispute
that the city was in full compliance with the payments of its workers’ compensation premiums
or that her workers’ compensation claim had been approved for her to receive permanent total
disability benefits for her injuries. Instead, she made a legal argument that her injury was not an
“injury” as that term is defined in R.C. 4123.01(C)(1). She did not argue that her workers’
compensation claim had been wrongly decided, however, nor did she cite any legal authority for
the underlying premise of her argument that the same injury could fall within this definition for
purposes of qualifying for workers’ compensation benefits but outside of it for purposes of her
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employer’s immunity for civil suits. There is but one definition of “injury” in R.C. Chapter
4123; if an employee’s “injury” is compensable within the workers’ compensation system, the
employer is consequently immune from a civil action by the employee for negligently or
recklessly causing the injury.
{¶10} Vacha relied primarily on distinguishable case law such as Kerans, supra, in
which the Court found that R.C. 4123.74 did not bar Kerans’ civil claim against her employer
because she had sustained a purely psychological injury that did not qualify for workers’
compensation benefits. 61 Ohio St.3d at 488-489.1 The Kerans court emphasized that
employees who suffer purely psychological injuries caused by their employers’ negligence
would be left without any remedy if their only recourse were the workers’ compensation system
for which they do not qualify:
“[I]n order for this court to find that the workers’ compensation statute provides
the exclusive remedy for appellant’s injury, we must find that it is theoretically
possible for her to recover under the statute, i.e., that she has suffered the type of
injury which is compensable under the statute.” (Emphasis sic.) 61 Ohio St.3d at
431, fn.2.
{¶11} Likewise, in Bunger, 82 Ohio St.3d at 465, it was critical to the court’s decision
that Bunger’s workers’ compensation claim for purely psychological injuries had been denied
because there had been no physical, compensable “injury” under R.C. 4123.01(C). Because the
injuries sustained by Bunger and Kerans did not satisfy the definition of “injury” under R.C.
4123.01(C)(1), those employees did not qualify for workers’ compensation benefits and,
1
Although Vacaha also relied on Prewitt v. Alexson Servs., Inc., 12th Dist. No. 2007-09-218,
2008-Ohio-4306, we are not persuaded by its reasoning, which is at odds with a prior decision of
this Court. See Luo v. Gao, 9th Dist. No. 23310, 2007-Ohio-959 (rejecting the argument that an
“injury” must be accidental to qualify for workers’ compensation benefits, the basic premise of
the Prewitt decision).
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therefore, R.C. 4123.74 did not provide their employers with immunity from their civil actions
for damages.
{¶12} Those employers were not immune from liability for the employees’ injuries
because the injuries were not compensable within the workers’ compensation system:
“If a psychological injury is not an injury according to the statutory definition of
‘injury,’ then it is not among the class of injuries from which employers are
immune from suit. Any other interpretation is nonsensical, and leads to an
untenable position that is unfair to employees.” 82 Ohio St.3d at 465.
{¶13} Conversely, if an employee’s “injury” does qualify for workers’ compensation
coverage, that remedy is exclusive and the employer is immune from civil action liability arising
out of an allegation that the employer was negligent or reckless in causing the employee’s injury.
That is the only reasonable interpretation of the language of R.C. 4123.74 and 4123.01(C) and
any other interpretation would be unfair to the employer in the overall balance of competing
interests in the workers’ compensation system.
{¶14} Because it was not disputed that Vacha’s injuries qualified for compensation
under the workers’ compensation system and that she was, in fact, receiving permanent total
disability benefits, there was no genuine issue of material fact that the city was immune from
Vacha’s claims for negligent and reckless hiring and supervision of Ralston. Therefore, the trial
court erred in denying the city’s motion for summary judgment under R.C. 4123.74 on those
claims.
Employer Intentional Tort Claim
{¶15} The city conceded that an employee’s claim for an employer intentional tort does
not occur in the course of or arise out of employment and, therefore, is not barred by R.C.
4123.74. See, e.g., Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, paragraph one of the
syllabus, approving and following Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982),
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69 Ohio St.2d 608. It argued in its summary judgment motion, however, that Vacha could not
prove that the city committed an employer intentional tort, citing the common law standard for
an employer intentional tort set forth in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115. The
trial court found that there were genuine issues of material fact as to whether Vacha could
establish a common law employer intentional tort claim against the city.
{¶16} On appeal, the city does not argue that the trial court wrongly determined that
there were factual issues under the common law intentional tort standard. Instead, it argues that
this Court should apply the more stringent standard for establishing an employer intentional tort
set forth in R.C. 2745.01, because, since the trial court ruled on the summary judgment motions,
the Ohio Supreme Court held that the statute is constitutional. See Kaminski v. Metal & Wire
Prods. Co., 125 Ohio St.3d 250, 2010–Ohio–1027.
{¶17} Although the current version of R.C. 2745.01 was in effect at the time of Vacha’s
injury, and it had not been declared unconstitutional by this appellate court, the city did not
mention R.C. 2745.01 in its motion for summary judgment. The trial court had no authority to
grant summary judgment on a ground that the city failed to raise in its motion for summary
judgment. See Smith v. Ray Esser & Sons, Inc., 9th Dist. No. 10CA009798, 2011-Ohio-1529, at
¶14-17 (fully addressing the impropriety of a defendant raising the statutory standard for the first
time in its summary judgment reply brief). Therefore, the city has failed to demonstrate that the
trial court erred in denying it summary judgment on Vacha’s employer intentional tort claim.
{¶18} The city’s first assignment of error is sustained insofar as it challenges the trial
court’s denial of its motion for summary judgment on Vacha’s claims for the negligent and
reckless hiring, employment, and supervision of Ralston, as alleged in counts two and four of her
amended complaint. To the extent that the city challenges the denial of summary judgment on
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Vacha’s employer intentional tort claim, as alleged in count five of her complaint, the first
assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE LOWER COURT ERRED WHEN IT DENIED THE APPELLANT/CITY
OF NORTH RIDGEVILLE THE BENEFIT OF IMMUNITY UNDER R.C.
CHAPTER 2744.”
{¶19} The city also argues that the trial court erred in denying its motion for summary
judgment on Vacha’s employer intentional tort claim because it was entitled to immunity under
R.C. 2744.02. According to the city, it is immune from civil actions seeking to recover damages,
except as provided in R.C. 2744.02(B), none of which apply here. Vacha responded in
opposition to the summary judgment motion and argued, among other things, that R.C.
2744.09(B) explicitly provides that R.C. Chapter 2744 political subdivision tort immunity does
not apply to “[c]ivil actions by an employee *** against his political subdivision relative to any
matter that arises out of the employment relationship between the employee and the political
subdivision[.]”
{¶20} The city maintained that, as a matter of law, the “civil actions” that are within the
scope of R.C. 2744.09(B) do not include employer intentional torts. It relied on a line of cases
including Ellithorp v. Barberton City School Dist. Bd. of Edn. (July 9, 1997), 9th Dist. No.
18029, in which this Court held that an employer intentional tort claim does not fall within R.C.
2744.09(B) because “[a]n employer's intentional tort against an employee does not arise out of
the employment relationship, but occurs outside of the scope of employment.” Id., citing Brady,
61 Ohio St.3d at paragraph one of the syllabus.
{¶21} Since Ellithorp was decided, the Ohio Supreme Court decided Penn Traffic Co. v.
AIU Ins. Co., 99 Ohio St.3d 227, 2003-Ohio-3373, in which it determined that an employer’s
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intentional torts fall within an exclusion in the employer’s commercial general liability insurance
policy for injuries to an employee that arise out of or in the course of employment. Id. at ¶38 and
42. During its examination of this policy exclusion, the court distinguished its reasoning from
Brady, Blankenship, and other workers’ compensation cases about whether employer intentional
torts occur within the scope of the employment relationship and/or arise out of or in the course of
employment, emphasizing the significance that those decisions arose within the context of the
workers’ compensation system. Id. at ¶39-40.
{¶22} After the Ohio Supreme Court decided Penn Traffic, this Court was asked to
reexamine its Ellithorp decision. See Buck v. Reminderville, 9th Dist. No. 25272, 2010-Ohio-
6497. In Buck, at ¶16, this Court explicitly overruled Ellithorp to the extent that it held that a
political subdivision employer’s intentional tort can never be subject to the immunity exclusion
of R.C. 2744.09(B). This Court concluded “that a claim by the employee of a political
subdivision against the political subdivision for its intentionally tortious conduct may constitute a
‘civil action[ ] *** relative to any matter that arises out of the employment relationship between
the employee and the political subdivision’ under Section 2744.09(B).” Id. at ¶10.
{¶23} Because Vacha’s employer intentional tort claim may constitute a claim within
the scope of R.C. 2744.09(B), the city failed to establish that it was entitled to summary
judgment on that claim based on the immunity provisions of R.C. Chapter 2744. Consequently,
the trial court did not err in denying it summary judgment on that basis. The city’s second
assignment of error is overruled.
III.
{¶24} The city’s first assignment of error is sustained to the extent it challenges the trial
court’s denial of its motion for summary judgment on Vacha’s claims for negligent and reckless
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hiring and supervision of Ralston. The remainder of its first assignment of error, as well as its
second assignment of error, are overruled. The judgment of the Lorain County Court of
Common Pleas is affirmed in part and reversed in part and the cause is remanded for further
proceedings consistent with this opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to both parties equally.
CLAIR E. DICKINSON
FOR THE COURT
DICKINSON, P. J.
BELFANCE, J.
CONCUR
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CARR, J.
CONCURS IN PART, AND DISSENTS IN PART, SAYING:
{¶25} I respectfully dissent from the majority’s conclusion that Vacha’s employer
intentional tort claim may fall within the scope of R.C. 2744.09(B) and that, therefore, the city
was not entitled to summary judgment under the immunity provisions of R.C. Chapter 2744. As
I stated in my dissenting opinion in Buck v. Reminderville, 9th Dist. No. 25272, 2010-Ohio-6497,
at ¶18, I believe that political subdivisions are immune from employer intentional tort claims, as
held by this Court in Ellithorp v. Barberton City School Dist. Bd. of Edn. (July 9, 1997), 9th Dist.
No. 18029, and Dolis v. Tallmadge, 9th Dist. No. 21803, 2004-Ohio-4454, at ¶ 6. For that
reason, I would sustain the city’s second assignment of error. I concur in the remainder of the
majority opinion.
APPEARANCES:
JOHN T. MCCLANDRICH, JAMES A. CLIMER, and FRANK H. SCIALDONE, Attorneys at
Law, for Appellant.
ANDREW CRITES, Law Director, for Appellant.
JOHN HILDERBRAND, SR., Attorney at Law, for Appellee.