Pariseau v. Wedge Products, Inc.

Per Curiam. Once again, we are asked to distinguish between a factual — 126 — situation in the workplace giving rise to an inference of aggravated negligence or reckless disregard for the rights of another and one giving rise to the legal concept of an intentional tort. As explained in Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St. 3d 135, 139, 522 N.E. 2d 477, 481, “[t]o establish an intentional tort there must be proof beyond that required to prove negligence and beyond that to prove recklessness. It is in this context that the facts should be examined to determine whether an employer has acted despite a known threat that harm to an employee is substantially certain to occur.”1 Unlike Kunkler, the record here does not contain even the suggestion that appellant’s foreman intended to injure appellee or that appellee’s superior placed him in a deadly or extremely dangerous working environment with the foreknowledge that he would be killed or injured. As stated in Prosser & Keeton, The Law of Torts (5 Ed. 1984) (hereinafter referred to as “Prosser”), “* * * the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent.” Id. at 36, Section 8. Testimony in the case at bar suggested that the injury was proximately caused by improper adjustment of pullback restraint guards on the press used by appellee. There was no direct evidence on this point, and at best, the record reflects but an inference of such negligence. Evidence was also offered that the 2/11 press had suffered from brake malfunction in the .past, which malfunction may infereñtially have contributed to appellee’s injury. The trial court, however, found the record devoid of direct evidence on this issue as well. A reading of the record, however, could lead to the inference that such a malfunction proximately contributed to appellee’s injury.2 Counsel for the plaintiff conceded that there were only two possible causes for the accident — maladjustment of the pullback restraint guards and breakage of a bolt in the press. The trial judge noted that direct evidence showed that the 2/11 press had “repeated” on several occasions. This tendency inferentially may also have been a proximate cause of appellee’s injury. Further, there was testimony that this very press had been involved in an earlier accident, — 127 — the circumstances of which are not clear from the record.3 Inferentially, claimant’s foreman may well have been aware that the 2/11 press put its user at some degree of risk. While we are aware that the grounds for granting a judgment n.o.v. are not easily met, a motion for such a judgment must be sustained when circumstances so require. “The test to be applied by a trial court in ruling on a motion for judgment notwithstanding the verdict is the same test to be applied on a motion for a directed verdict. The evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom the motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may reach different conclusions, the motion must be denied. Neither the weight of the evidence nor the credibility of the witnesses is for the court’s determination in ruling upon either of the above motions.” Posin v. A.B.C. Motor Court Hotel (1976), 45 Ohio St. 2d 271, 275, 74 O.O. 2d 427, 430, 344 N.E. 2d 334, 338; McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E. 2d 138; Ayers v. Woodard (1957), 166 Ohio St. 138, 1 O.O. 2d 377, 140 N.E. 2d 401; Civ. R. 50(A) and (B). However, it is noteworthy that the burden to demonstrate knowledge amounting to a substantial certainty that an injury would take place never leaves the plaintiff. See Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489. In the instant case, the trial court, in the course of its written opinion, carefully reviewed the evidence and properly sustained appellant’s motion for a judgment n.o.v. Judge Tyack, construing the evidence most strongly in favor of appellee, found that the various acts of negligence alleged by appellee failed to constitute an “intentional tort,” as established in Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046.4 We agree with his analysis. — 128 — Judge Tyack, in effect, put forth this question: How can any reasonable person find that Wedge Products and/or its foreman knew, with any degree of certainty, that an injury was bound to occur given the record in this case?5 The court of appeals properly held that the jury could have found inferentially that “* * * the press repeat was due to overheated brakes and the failure of the pullback guards was due to improper adjustment.” What the court of appeals failed to discern was that these conditions were the result of negligence, not intentional misconduct. The whole concept of actions premised upon intentional torts in the workplace has been the subject of intense interest in this state in recent years. As Justice Herbert Brown pointed out in Kunkler, supra, this court’s decision in Jones v. VIP Development Co., supra, leaves questions open with respect to just what constitutes “substantial certainty.” In Kunkler, Justice Brown, citing Prosser with approval, adopted the Restatement of the Law 2d, Torts definition of intent and applied it to a case similar to that before us. Justice Herbert Brown, expanding on and explaining the semantic shortcomings of Jones, alluded to the differences among negligence, recklessness, and intentional tort, and specifically approved both the Prosser and Restatement rationales. See, also, Van Fossen, supra. To establish an intentional tort, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. If the actor knows that the consequences are certain, or substantially certain, to result from his act and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases and becomes less than substantial certainty, the actor’s conduct loses the character of intent and becomes mere recklessness. As the probability decreases further and — 129 — amounts only to risk that the result will follow, it becomes ordinary negligence. Restatement of the Law 2d, Torts, Section 8A, Comment b; Jones v. VIP Development Co., supra, explained; Van Fossen v. Babcock & Wilcox Co., supra; Kunkler v. Goodyear Tire & Rubber Co., supra, followed. Thus, to establish that an employer has committed an intentional tort against an employee so as to allow the employee to recover damages, a plaintiff-employee must demonstrate by a preponderance of the evidence that the employer or his agent manifested an intent to injure the employee and this intent includes the knowledge and expectation that such an injury is substantially certain to occur. Therefore, the question in these cases becomes: Weighing the evidence and inferences favorable to the employee, is there reliable, probative evidence to show that the employer intentionally acted in this matter despite a known threat of harm to the employee, using the substantial certainty test noted above? We think it is obvious that such a situation did not prevail in the instant case. We have already disposed of the legislative effort to “limit” this particular form or cause of action by holding that R.C. 4121.80(G)(1) may not be applied retroactively.6 Further, it can hardly be argued that legislative efforts to limit, expand, or even abolish common-law actions are facially unconstitutional. In any event, we hold that the court of appeals erred in reversing Judge Tyack’s granting of judgment n.o.v. Accordingly, the judgment of the court of appeals is reversed and that of the trial court is reinstated. Judgment reversed. Moyer, C.J., Wright and H. Brown, JJ., concur. Holmes, J., concurs separately. Locher, Sweeney and Douglas, JJ., dissent. Footnotes [1] Comment b to Section 8A of 1 Restatement of the Law 2d, Torts (1965) 15, expresses the differences among negligence, recklessness, and intentional tort and addresses the precise point at issue when it states: “* * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ.” See, also, Prosser & Keeton, Law of Torts (5 Ed. 1984) 35, Section 8. [2] The record we face is totally dissimilar to that in Kunkler, where there was evidence that it was certain or virtually certain that the defendant employer was well aware that the materials provided to the injured party were explosive and would explode on use and yet ordered Kunkler to proceed despite such foreknowledge. Indeed, appellee’s own testimony in the instant case puts to lie even a suggestion that his foreman acted with malice aforethought. [3] The record reflects that a prior accident occurred in 1976 involving one Verde Adams who suffered a severe hand injury. The record belies any assertion that the accident was caused by a “repeat” factor, supports the contention that there was a malfunction in one of the press’ functional parts and indicates that the injury was probably caused by maladjustment in Adams’ hand restraints. [4] In its decision, the trial court stated: “While this Court realizes that a jury is a trier of disputed facts some of the claims as to the negligent acts of the defendant were not supported by probative evidence. One of the claims, namely that of the improper adjustment of the hand restraints, was commented upon by plaintiff’s experts and argued extensively by plaintiff’s counsel. Peculiarly, there was no evidence, in this Court’s opinion, to support this facet. of the claim. The only people with direct knowledge of the hand adjustments were George Miller, the foreman for the defendant who did the adjusting, and the plaintiff. Miller denied any failure to properly adjust the hand restraints and the plaintiff, upon cross-examination, stated he was not aware of any problems as to the adjustment of the restraints. “While plaintiff claimed a failure of the brake, and prior notice of the claim of defective brakes, as part of the case, the court notes there was no evidence of brake failure to support this position, in fact, the evidence, in this Court’s opinion, supported the position that the machine was regularly checked and in fact inspected the day after plaintiff’s unfortunate accident, and there was no defect found in the brakes. The court realizes that, at least on the issue of the ‘repeating,’ this was within the jury’s province. There was evidence, however, to — 128 — indicate the operator of the machine could effectuate a repeat by failing to use a foot device properly. “It seemed to be agreed by all parties concerned that even upon a ‘repeat’ the hand restraints should have pulled the persons [sie] hands out of any area of danger prior to any mishap. The court will comment that a mechanical failure or even negligence on the part of the plaintiff [sie] in permitting the injured employee to operate the machine would hardly constitute an intentional tort. While the evidence was quite clear that the plaintiff was a relatively new employee of the company he nevertheless, apparently in keeping the company policy, had been exposed to various equipment at the shop. Furthermore, although a new employee with the defendant corporation, the plaintiff represented himself, as having, considerable experience [in the] operating of similar equipment. The testimony is supported by plaintiffs past employment record. Also, it is interesting to note that the plaintiff had worked on the machine for approximately one hour before his mishap and, if the court recalls the figures correctly was on his two hundredth piece, which was to be the last piece for the day, at the time of the mishap. It is reasonable to assume, in the absence of any testimony to the contrary, that during the period of time the plaintiff was operating the press it was functioning satisfactorily. “As far as the repeating propensities of the press, it would appear that following each complaint the machine was checked out by the supervisory personnel who were unable to effectuate any repeats. This is important because the defendant corporation denied any knowledge of actual repeats although there had been some complaints previously.” [5] Indeed, a directed verdict may well have been tbe more appropriate resolution of this matter. [6] For an exhaustive and scholarly-analysis of this issue, see Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489.