No Employment Intentional Tort Liability For Occupational Exposures Prior To 1982? A Potential Emerging Trend In Ohio Law
We have been watching with interest recent developments in a solvents case currently pending in Summit County, OH: Widican v. Bridgestone/Firestone North American Tire, LLC, et al. A summary judgment order entered in that case may portend a serious body blow to employee "intentional tort" claims against Ohio employers for occupational illnesses with long latencies.
Beginning in 1939, worker's compensation was the exclusive remedy that Ohio workers could seek against their employers for injuries suffered in the course of their employment. That is to say, workers' compensation preempted employer tort liability. This involved the trade-off typical of most workers compensation systems: the employee received reliable compensation for workplace injuries without having to prove fault, and the employer in return received a predictable and reasonable cap on its liability for such injuries.
All that changed in 1982. That year, the Ohio Supreme Court held in Blankenship v. Cincinnati Milicon Chemicals, Inc. that there was an exception to worker's compensation preemption. If the employee could prove that the employer intended to harm him/her, he/she could recover both workers compensation and the full range of tort damages against his/her employer. Two years later, the Ohio Supreme Court in Jones v. VIP Development Company further expanded the exception, holding that "intentional tort" could be established by showing that the employer knew that injury to the employee was "substantially certain." The requisite "intent," the Court later explained in Fyffe v. Jeno's, Inc., was something more than "reckless" or "willful and wanton" conduct, but something less than specific intent to harm.
In the ensuing two decades, more and more Ohio workers sought (and often received) "intentional tort" recoveries against their employers. Indeed, such claims came to be known to most attorneys practicing in the area as “Blankenship claims.” Most cases involved sudden traumatic injuries, but at least a few began to crop up claiming occupational disease. Perhaps most notable among these claims were claims of asbestos-related occupational disease, with latencies typically in the range of 20 years or more.
Since Blankenship, Ohio's General Assembly has made three attempts to legislatively re-interpret the "intentional tort" standard. To date, two of those statutes have been resoundingly rejected by the Ohio Supreme Court as unconstitutional. The third is at issue in two cases currently pending before the Court.
In 2008, the Ohio Supreme Court decided DiCenzo v. A-Best Products Company, Inc. That case had nothing to do with employment intentional tort. Rather, it analyzed the question whether strict liability of non-manufacturing suppliers, which the Court had recognized for the first time in 1977 in Temple v. Wean, could be retroactively applied to exposures prior to the date of that decision. The Court held that such liability could not be retroactively applied.
Utilizing the same reasoning applied in DiCenzo, Summit County Common Pleas Judge Judy Hunter held last year in Widican that employer intentional tort liability can not be applied for exposures prior to the first recognition of that type of claim in 1982 by Blankenship. Because other defendants remain in the case, the summary judgment for the employer in Widican is not yet subject to appeal. However, if and when it makes its way to the Ohio Supreme Court, the case could spell the end of employment intentional tort claims arising from exposures prior to 1982.
This potential trend in Ohio law may also be of interest to mass tort litigants in other states, since the test applied by DiCenzo and Widican is the same as that applied by the U.S. Supreme Court in Chevron Oil Co. v. Huson.
