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Vol. 2006-08-c August, 2006

Employer Immunity for Occupational Injuries

Employers are immune from suit by employees, except for occupational injuries resulting from intentional torts by the employer.

One such case, recently decided, was by a warehouseman, employed by RTS, in the company's rail yard. While performing a procedure of jumping on a moving rail car to apply the car's brake, he fell under the wheels and suffered a traumatic injury to his left leg, resulting in a below-knee surgical amputation. The Trial Court ruled in favor of the employer, and the warehouseman appealed. The Court of Appeals held:

"{12} Section 35, Article II of the Ohio Constitution and R.C. 4123.74 provide an employer is immune from suit by its employees for occupational injuries except for injuries resulting from intentional torts. See Jones v. VIP Development Company (1984), 15 Ohio St.3d 90, 472 N.E.2d 1046. In Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, the Ohio Supreme Court held that in order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against an employee, the following must be demonstrated:"
  1. knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;
  2. knowledge by the employer that if the employee is subject by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and
  3. that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task
Id., at paragraph one of the syllabus. Proof beyond that required to prove negligence and beyond that to prove recklessness must be established.
Id., at paragraph two of the syllabus. In addition, "[a] dangerous condition, as defined in the employer intentional tort doctrine, must be something beyond the natural hazard of employment." Burkey v. Farris (June 30, 2000), Tuscarawas App.No.1999AP030015, citing Taulbee v. Adience, Inc., BMI Div. (1997), 120 Ohio App.3d 11, 17, 696 N.E.2d 625.

The evidence and testimony of Appellant confirmed that he voluntarily continued to perform the hazardous tasks to which he had been assigned, and never declined to do so. ".RTS did not instruct or permit employees to climb on moving railcars, and that if appellant had objected, he would have been told not to do so.

. we find that a material issue of fact would have been presented as to whether RTS, through its actions and policies, placed appellant in a position where he would be continually subjected to the dangerous task of jumping on and braking railcars."

Appellant's claims and appeal were denied. Stine v. Ry. Transfer & Storage, 2006-Ohio-398.

We know what a person thinks not when he tells us what he thinks, but by his actions.

Isaac Bashevis Singer (1904-1991)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

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