Workplace Injuries: Intentional Tort Claims in Ohio Are (Nearly) Dead in the Water

by Littler

The Ohio Supreme Court delivered another blow to injured workers who attempt to skirt Ohio's workers' compensation system by pursuing a remedy for their injuries in court. On the heels of another opinion1 narrowly interpreting Ohio's intentional tort statute, Ohio Revised Code section 2645.01, the Ohio Supreme Court, in Houdek v. ThyssenKrupp Materials N.A., Inc., Slip Opinion No. 2012-Ohio-5685 (Ohio Dec. 6, 2012), confronted the question of whether an injured worker who brings an intentional tort claim against his or her employer is required to prove that the employer acted with a deliberate intent to injure. The court answered this question with an unequivocal "yes."     


The plaintiff in Houdek suffered a broken leg and shattered ankle when he was pinned against a piece of machinery by a sideloader while working in a dimly lit, narrow aisle at his employer's warehouse. At the time of the accident, the employee, who was on light duty due to another workplace accident, was standing and labeling inventory located on storage racks. The storage racks were situated in aisles where workers on sideloaders pulled goods from the racks. The operator of the sideloader that injured the plaintiff had allegedly been told that the plaintiff would be working in that aisle that day, but had forgotten. In fact, the week before the injury, the operator asked the plant manager if he should rearrange his assignment to avoid pulling merchandise from the aisles where the employee would be standing, but the plant manager said no. In addition, the plaintiff argued that the company could have taken steps to ensure employee safety, such as using reflective vests and safety cones or gates.     

Before the trial court, Houdek claimed that the company deliberately intended to injure him by directing him to work in the aisle with the knowledge that injury would be certain or substantially certain to occur, and not taking additional steps to prevent the accident. The court found the evidence was insufficient to support the plaintiff's claim that the company intended to injure him and dismissed the case. The Eighth District Court of Appeals reversed the lower court's dismissal, and the employer appealed to the Ohio Supreme Court. 

The General Assembly Meant What It Said

It took the Ohio General Assembly several attempts to enact an employer intentional tort law that would pass the constitutional muster of the Ohio Supreme Court – but it finally succeeded with Ohio Revised Code section 2745.01. Indeed, the legislature was assiduous in its pursuit of statutory language that would strictly limit intentional tort claims against employers by injured workers to the narrowest of circumstances. In creating this limited exception, the General Assembly specified that an employer shall not be liable to an employee for an intentional tort claim unless the employee can prove that the employer acted with "the intent to injure another or with the belief that the injury was substantially certain to occur." The General Assembly defined "substantially certain" as an employer acting "with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death." 

Before the Ohio Supreme Court, Houdek argued that the company deliberately intended to injure him because it directed him to work in the aisle with the knowledge that an injury was substantially certain to occur. Claiming that the employer's subjective mental state is impossible to prove absent a confession, he asserted that intent to injure may be established though the employer's conduct. He maintained that there was sufficient evidence that his employer intended to injure him as it had been warned of the danger posed by working in the aisles, yet it took no action to ensure his safety before requiring him to work there. 

The employer, on the other hand, argued that the court of appeals deviated from the intent to injure standard by applying an objective, rather than subjective, test as to what the employer actually believed. It maintained that the appellate court's decision finding a scrivener's error in the statute conflicts with case law and ignores the intent of the General Assembly to limit the situations in which an employee may pursue an intentional tort claim against his employer in addition to a workers' compensation claim. 

Consistent with the language of the statute, the Ohio Supreme Court reversed the decision of the appellate court and held, "absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system." The court reasoned that even if the employer failed to implement other preventative safety measures, such an omission is not evidence of a deliberate intent to injure. In other words, workplace injuries caused by an employer placing an employee in a potentially dangerous situation – absent evidence that the decision was made with a clear and unambiguous intent to injure – will not be the basis for a successful intentional tort claim in Ohio.

What This Case Means to Ohio Employers

Combined with the Ohio Supreme Court's opinion in Hewitt v. L.E. Myers, employers should feel secure in the predictability of the remedies and liabilities that ensue from an employee who is injured at work. The legislature created a workers' compensation system to address those injuries and ensure that employees are fairly compensated. In the rare occasion that an employer would act with the specific intent of causing an employee harm, the legislature provides an additional legal remedy for that employee. But Houdek, coupled with Hewitt, makes it abundantly clear that an intentional tort claim against an employer is the exception, and not the rule. Nevertheless, employers should place a premium on workplace safety to prevent injuries in the first place – effective safety policies, procedures, and training will help minimize high workers' compensation rates and the potential for meritless but costly lawsuits.

1See Bonnie Kristan and Amy Wentz, Ohio's Intentional Tort Statute Means What It Says, Littler ASAP (Nov. 29, 2012).

Bonnie Kristan is a Shareholder, and Amy Wentz is an Associate, in Littler Mendelson's Cleveland office. If you would like further information, please contact your Littler attorney at 1.888.Littler or, Ms. Kristan at, or Ms. Wentz at


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:


Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.