The Tenth District Court of Appeals this week affirmed a Franklin County Common Pleas Court ruling that a construction company was not liable for the death of an employee.

Delores Johnson filed the employer intentional-tort claim after her husband, Wilbur Lee Johnson, died when he fell from an unsecured scaffold in July 2009. Mrs. Johnson contended that International Masonry, Inc. deliberately intended to cause injury to her husband. The Cincinnati Insurance Company intervened as a plaintiff seeking a ruling on its duty to indemnify International Masonry, Inc. for claims based on employer intentional-tort.

Court documents state that Mr. Johnson’s supervisor did not instruct him to work near the scaffold and were unaware that he and two other employees were using it. The scaffolding collapsed when a bracket that supports the scaffold platform gave way. The documents state the bracket had been inspected multiple times before the accident with no problems.

Citing precedent, the trail court stated that “pursuant to R.C. 2745.01, appellant could recover under a theory of employer intentional tort only ‘when an employer acts with specific intent to cause an injury’ and that proof of negligence or even recklessness does not suffice.” The court concluded that Mrs. Johnson failed to prove International Masonry, Inc. deliberately intended to cause injury, and it found moot all issues related to The Cincinnati Insurance Company.

Tenth District Court of Appeals Judge Julia L. Dorrian wrote the court’s majority opinion. The court, citing the Ohio Supreme Court decision Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, affirmed the trial court’s opinion. In Houdek, the Supreme Court affirmed that “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.” Because evidence did not show deliberate intent to injure Houdek, the court stated the employer was not liable for damages.

“We acknowledge that an intent to injure may, in theory, be inferred from the facts and circumstances in a particular case,” Dorrian wrote. “However, the discrepancies in the testimony identified by [Mrs. Johnson] in this case, even when construed in favor of [Mrs. Johnson], do not justify the inference that Johnson’s employer intended that Johnson be harmed.”

“Johnson’s employer is entitled to judgment as a matter of law due to the absence of any genuine issue as to the lack of deliberate employer intent to harm Johnson,” Dorrian added.

Judges Gary Tyact and John W. McCormac, concurred in the July 8 opinion that affirmed the trial court’s judgment.

Johnson v. Cincinnati Ins. Co., 2013-Ohio-2749
Opinion: http://www.sconet.state.oh.us/rod/docs/pdf/10/2013/2013-ohio-2749.pdf
Civil Appeal From: Franklin County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 8, 2013

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