COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59760 EUGENE S. JASINSKI, ET AL. : : Plaintiff-appellants : : JOURNAL ENTRY -vs- : AND : OPINION FORD MOTOR COMPANY, ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : JANUARY 30, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-156492 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: PATRICK DICHIRO, ESQ. HAROLD A. ROSS, ESQ FORD L. NOBLE, ESQ. 1548 Standard Building 950 Standard Building 1380 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 CARL H. GLUEK, ESQ. KEITH ASHMUS, ESQ. 1100 National City Bank Cleveland, OH 44114 - 2 - PATTON, J., Plaintiffs-appellants, Eugene and Sharon Jasinski ("appellants") appeal the trial court's entry of summary judgment in favor of defendants-appellees, Ford Motor Company ("Ford") and Local 1250 of the International Union of United Automobile, Aircraft and Agricultural Implement Workers ("Local 1250"). For the following reasons we affirm the decision of the trial court. The relevant facts contained in the record are as follows: On September 14, 1988, Eugene Jasinski, an employee of Ford filed a complaint for serious injuries he received on December 17, 1987, while in the course and scope of his employment. He was injured when he was attacked at Ford by a co-worker, Harvey Wright. Jasinski alleged in the complaint that Ford knew or should have known of Wright's propensity for violence because Ford had previously discharged Wright for criminal violence on Ford's premises. Further, the complaint alleged that Local 1250 was responsible for the reinstatement of Wright after successfully prosecuting a grievance at some unspecified past date. According to the complaint the actions of Local 1250 were responsible for placing Wright in a position to perpetuate harm on others. Additionally, the complaint raised a claim of assault against Wright. The complaint also contained a claim for loss of consortium on behalf of Sharon Jasinski, Eugene's wife. On December 16, 1988, Ford moved for summary judgment contending that the appellants' claims were not cognizable as - 3 - they were pre-empted by Ohio's constitution and workers' compensation statutes. Further, Ford alleged the appellants were unable to establish an intentional tort in the work place. On February 24, 1989, Local 1250 moved for summary judgment contending that the claim asserted against it arose out of its duties as a collective bargaining representative for Ford's production and maintenance employees and, therefore, was pre- empted by federal labor laws. Further Local 1250 contended that it had not engaged in any conduct breaching a duty of care owed to the appellants and any action or omission on its part was not the proximate cause of harm suffered by the appellants. On September 18, 1989, the trial court granted Ford's motion for summary judgment. The court concluded that the appellants' injuries arose in the course of his employment and were thus pre-empted by Ohio's workers compensation provisions. On October 26, 1989, the trial court entered a Memorandum and Order granting Local 1250's motion for summary judgment. The court found that Local 1250 had a duty of fair representation under federal labor laws and that it would be unreasonable to premise liability on the union for fulfilling its obligations thereunder. Furthermore, the court found that the appellants failed to present evidence rebutting Local 1250's showing that it did not seek reinstatement or pursue a grievance on behalf of Mr. Wright within five years prior to the attack involved herein. - 4 - Thus, the court concluded Local 1250 was not the proximate cause of appellants' injuries. On November 16, 1989, appellants filed a motion for summary judgment against Harvey Wright. On April 12, 1990, the trial court granted the appellants' motion and subsequently awarded $100,000 in damages against Wright. The instant appeal followed. Appellants' first assignment of error provides: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE FORD MOTOR COMPANY BASED ON THE COURT'S FINDING THAT APPELLEE FORD MOTOR COMPANY WAS IMMUNE FROM LIABILITY PURSUANT TO OHIO REVISED CODE SECTION 4123.74 WHERE THERE WERE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER APPELLEE FORD MOTOR COMPANY'S FAILURE TO PROVIDE A SAFE WORK PLACE WAS INTENTIONAL AND CREATED A TERROR IN THE WORK PLACE. Appellant concedes he was assaulted in the course and scope of his employment. He further concedes his cause of action is closely akin to that of an intentional tort. However, he argues that where an employee is assaulted in the work place by a fellow employee such conduct provides a cause of action separate and apart from a workers' compensation claim and an intentional tort claim. We specifically reject appellant's argument and find no persuasive reason to deviate from an intentional tort analysis. To hold otherwise would require an employer to ensure the safety of an employee against assaults by other employees. We are unwilling to adopt such a position. Thus, we will proceed with an intentional tort analysis. - 5 - The Ohio Supreme Court recently enunciated the standard required to state a cause of action for intentional tort by an employer in Sanek v. Duracote Corp. (1989), 43 Ohio St. 3d 169. Therein the court held that such an action must be determined according to the standards set forth in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100. In Van Fossen the court stated: Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed. 1984), in order to establish "intent" for the purpose of proving the existence of an intentional tort committed by an employer against his 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 subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty and not just a high risk; 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., paragraph five of the syllabus. Further, the court stated: To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. Where the risk is great and the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or - 6 - substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent. Van Fossen, supra, at paragraph six of the syllabus. In a case such as this, the employee at all times has the burden to demonstrate that the employer had knowledge amounting to substantial certainty that an injury would occur. Pariseau v. Wedge Products (1988), 36 Ohio St. 3d 124, 127. Moreover, the focus of such an action is on the knowledge of the employer regarding the risk of injury. Van Fossen, supra, at 112. In its motion for summary judgment Ford contended it did not possess the requisite deliberate intent to injure Mr. Jasinski by its hiring of Mr. Wright and additionally that appellants' claims were pre-empted by workers compensation statutes. In its brief in opposition to Ford's motion for summary judgment the appellants attempted to show that Ford had knowledge of Wright's history of violent acts both within and outside of the confines of the work place. In support, the appellants attached copies of Wright's disciplinary action reports. They showed that on May 2, 1985, Wright was suspended for three days after verbally threatening a supervisor. On February 17, 1987, Wright was docked time for being away from his work station and on February 23, 1987, Wright received a reprimand for taking his - 7 - break at the same time as another employee. Also, attached was the affidavit of Eugene Jasinski. Therein, Jasinski stated that Ford had knowledge of Wright's numerous work rule infractions. Viewing the evidence in a light most favorable to the appellants, we find that there exists no genuine issue of fact indicating that Ford either intended to injure Mr. Jasinski or it knew that harm to him was substantially certain to occur as a result of the employment of Mr. Wright. Furthermore, Wrights' disciplinary action reports fail to establish a sufficient propensity for violence to place Ford on notice of possible harm to fellow employees. Accordingly, the appellants failed to show that there was a genuine issue of whether Ford had committed an intentional tort. Van Fossen, supra. Thus, the trial court correctly held that appellants were limited to recovery of workers compensation benefits. Appellants' first assignment of error is overruled. Appellants' second assignment of error provides: II. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE INTERNATIONAL UNION OF UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS, LOCAL 31250 WHERE GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER APPELLEE UNION'S ACTIONS IN REINSTATING AN EMPLOYEE WERE INTENTIONALLY DIRECTED AT OTHER EMPLOYEES, SUCH AS APPELLANT, CREATING A DANGEROUS WORK PLACE WHERE APPELLANT WAS ULTIMATELY INJURED. Appellant argues genuine issues of material fact exist as to whether Local 1250's participation in the grievance procedures which resulted in the retention of Mr. Wright as an employee of - 8 - Ford were intentionally directed at other Ford employees so as to create an unsafe work place. Further, appellant maintains genuine issues of material fact exist as to whether the injuries suffered were directly linked to the intentional act of Local 1250 in representing Mr. Wright through grievance proceedings. We disagree and find no merit in appellants' arguments. Attached to Local 1250's motion for summary judgment was the affidavit of Jerome Melillo, President of Local 1250. Therein, he stated Local 1250 is the collective bargaining representative for the production and maintenance employees at Ford and pursuant to federal labor laws it has a duty of fair representation to its members. Further, Mellillo stated Local 1250 had no knowledge of any physical violence by Wright nor had they requested his reinstatement since 1982. The appellants attached the same disciplinary action reports of Wright to their brief in opposition to Local 1250's motion for summary judgment that they had attached to their brief in opposition to Ford's summary judgment motion. Also attached was the affidavit of Eugene Jasinski who stated that at some time during Wright's employment at Ford, Wright had viciously attacked a Ford employee named Katrina Langel. Furthermore, Wright was allegedly discharged as a result of the incident and then reinstated pursuant to an agreement between Local 1250 and Ford. - 9 - Initially we note that a union has a statutory duty fairly to represent all of the employees, both in its collective bargaining with the employer and in its enforcement of the resulting collective bargaining agreement. Vaca v. Sipes (1967), 386 U.S. 171, 177. Further, an exclusive bargaining agent's statutory authority to represent all members of a designated bargaining unit includes a statutory obligation to serve the interest of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty and to avoid arbitrary conduct. Id., at 177. Thus, pursuant to its duty of fair representation a union lacks the discretion to refuse to proceed with a member's grievance. In the instant case Local 1250 was obligated to undertake the representation of Wright pursuant to its duty of fair representation. Had Local 1250 refused to represent Wright he could have proceeded against them for breach of their duty of fair representation. The appellants now seek to hold Local 1250 liable for faithfully discharging its statutory duty to Wright. We find such a position untenable. We decline to premise liability upon Local 1250 for the faithful discharge of its duty to represent Wright. Additionally, assuming arguendo Local 1250 violated some duty owed to Mr. Jasinski by participating in Wright's grievance proceedings leading to his reinstatement, the record fails to indicate that Local 1250 either intended to injure Mr. Jasinski - 10 - or it knew that harm to him was substantially certain to occur as a result of Wright's reinstatement. The appellants have failed to demonstrate that Local 1250 had knowledge amounting to substantial certainty that an injury would occur. See, Pariseau, supra. Thus, we conclude as a matter of law that the appellants failed to show that there was a genuine issue of whether Local 1250 had committed an intentional tort. Van Fossen, supra. Accordingly, the trial court properly entered summary judgment in the union's favor. The appellant's second assignment of error is overruled. Judgment affirmed. - 11 - It is ordered that appellees recover of appellants their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, CHIEF JUSTICE, CONCURS KRUPANSKY, J., CONCURS IN JUDGMENT ONLY JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .