COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59941 KAJETAN J. KOZIOL, etc., et al.: : Plaintiffs-appellants : : JOURNAL ENTRY -vs- : AND : OPINION QUALITY STAMPING PRODUCTS, : et al. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 5, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 162460 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: For Defendants-Appellees: WILLIAM VANCE, ESQ. TERRANCE P. GRAVENS, ESQ. DAVIS AND YOUNG CO., L.P.A. WILLIAM J. COYNE & 1700 Midland Building ASSOCIATES CO., L.P.A. Cleveland, Ohio 44115 1240 Standard Building Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Kajetan Koziol filed an amended complaint against appellees, Quality Stamping Products and All Stamping Products, alleging that appellees had committed an intentional tort against him on December 30, 1987, while he was employed by them. Appellees filed a motion for summary judgment March 19, 1990, which was granted by the trial court. Appellant appealed from the grant of summary judgment in a timely manner and makes one assignment of error. I THE TRIAL COURT ERRED BY GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. On December 30, 1987, appellant was employed by the appellees to operate a punch press. He had been employed by the appellees for approximately one month with no prior experience operating such equipment. Appellant had applied for the position when he was sixteen years old. Knowing that the legal requirement for operating a punch press was that he be at least eighteen years, he lied about his age and the number of years attending school on his employment application. The management had given appellant some training on the use of the machines. The operation of each of the different types of punch presses was explained to appellant before he began working on them. Appellant recognized the potential danger of the machines and he also recognized the necessity of wearing the safety device. The safety device consisted of a band which was - 2 - buckled around appellant's wrist and thumb. The device was attached by wires to the punch press itself. Each time the ram descended to punch a piece of metal out of the rolled steel, the wires were pulled in such a way as to pull the wearer's hands out of the die area where the ram descended. If worn properly the safety device would keep the worker's hands out of the dangerous area of operation. Appellant admits to being warned on numerous occasions to wear the safety device. At this time the safety device was available for his use and no supervisor told him directly not to wear it. Appellant stated that prior to working on this particular machine that night he was told by a supervisor that it was not necessary to wear the safety device "if he did the job right." (Appellant's deposition, p. 37). On the night of the incident, appellant had been operating the punch press for approximately an hour when he felt the need to stand up from the stool where he was working and stretch. In order to keep the machine punching properly it was necessary to periodically oil the parts being pressed. Consequently, the floor beneath the machine had accumulated a puddle of oil from this process. As appellant stood up to stretch, he slipped on this oil and his foot hit the pedal which activated the ram on the press. Simultaneously, appellant reached for the machine to regain his balance. His hand went into the die area and the ram, activated by his foot, dropped onto his hand, crushing it. The hand was injured irreparably and had to be amputated. - 3 - Appellant argues that appellees were aware that this injury was substantially certain to occur because of three actions or omissions on the part of appellees. One, they failed to verify appellant's age when he was hired, knowing the legal age requirement for operation of the punch press. Two, even though they were aware that appellant had no prior experience with the machine, they only gave him five minutes of training. And, three, one of appellees' employees told the appellant that he did not have to wear his safety device. The statute relied upon by the parties and the trial court in granting summary judgment was R.C. 4121.80. This statute created a standard under which employees could sue their employers for intentional torts which was slightly more difficult for the employees to meet than the previous law as developed by the courts in Ohio. This statute was made effective August of 1987 and was in effect at the time of appellant's accident, December of 1987. In August of 1991, the Supreme Court of Ohio ruled that R.C. 4121.80 was unconstitutional. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St. 3d 624. The first issue before this court is whether or not to apply the law as it now stands under this latest ruling to a case which was pending appeal at the time the decision came down from the Supreme Court. The general rule in Ohio governing this issue "is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not - 4 - that the former was bad law, but that it never was the law." Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210; Shaffer v. Frontrunner, Inc. (1990), 57 Ohio App. 3d 18, 20; Anello v. Hufziger (1988), 48 Ohio App. 3d 28. This general rule has been applied in cases where the Supreme Court is not overruling one of its former decisions but interpreting a statute. Anello v. Hufziger, supra. The court in Anello gave retroactive effect to an Ohio Supreme Court decision interpreting a statute of limitations provision in a statute governing malpractice claims. The claim was pending at the time of the Supreme Court decision. The appellate court also adopted a test enunciated by the United States Supreme Court in Chevron Oil Co. v. Huson (1971), 404 U.S. 97; A high court decision will not be applied retroactively if the decision meets three 'separate factors.' [Chevron Oil Co. v. Huson] at 106-107. As applicable to the instant case, these three factors may be expressed in question form: (1) Is the decision one of first impression that was not clearly foreshadowed? (2) Will retrospective application retard the operation of the statute, considering its prior history, purpose and effect? (3) Will the retrospective application produce substantial inequitable results ('injustice or hardship')? Anello v. Hufziger (1988), 48 Ohio App. 3d 29, 30. In applying this test to the retrospective application of the Brady v. Safety-Kleen Corp. decision, the answer to all three questions is in the negative. Brady v. Safety-Kleen Corp. is - 5 - applicable to this appeal and this court will not recognize the standard set forth by R.C. 4121.80. The Anello court contends that the principal of law which was reversed was not supported by a "'long-line' of decisions." Anello v. Hufziger at 31. They therefore assert that the reversing decision was readily foreshadowed. The same situation exists here in that the enacted statute was quite recent and courts had not yet developed case law to support the standard provided by the statute to govern intentional tort cases. The standard which the statute sought to preempt was long-standing and had been utilized in cases as recently as 1990. See, Watson v. Aluminum Extruded Shapes (1990), 62 Ohio App. 3d 242. In the sense that "foreshadowed" was used by the Anello court, the decision of the Supreme Court in Brady v. Safety-Kleen Corp. was foreshadowed by a long line of cases supporting the standard which applied prior to R.C. 4121.80. Retrospective application of the Brady decision will not retard the operation of the Workers' Compensation Act, as it applies to all claims arising from the employment relationship. R.C. 4123.74 still governs the employer's liability in these types of tort claims. The area of intentional tort is not one in which the legislature has the authority to legislate an employee's recourse because it occurs outside of the employment relationship. Brady v. Safety-Kleen Corp. at 633. The purpose of R.C. 4121.80 was to legislate a standard governing intentional - 6 - torts in response to a line of decisions which had expanded the notion of intent to include not only direct intent to cause the employee's injury but also an inferred intent. This indirect intent could be inferred where the employer was aware of a substantial certainty that the injury would occur. The effect of the statute was to eliminate the inferred intent, making it more difficult to meet the standard for an intentional tort claim against an employer. Eliminating R.C. 4121.80 and making its elimination retroactive will not affect the operation of the Worker's Compensation system as it applies to those claims to which it is constitutionally allowed to apply. And, finally, the retrospective application will not produce substantial inequitable results. In this case, the parties have argued the law both as it existed prior to and under R.C. 4121.80. There is no unfair surprise or prejudice against these parties in applying the prior standard governing the element of the employer's intent. Thus, the retrospective application of the Brady decision to a pending case meets the requirements as outlined in the Chevron test and applied in Anello v. Hufziger (1988), 48 Ohio App. 3d 28. R.C. 4121.80 is no longer the governing statute. Once the statutory cause of action is no longer available, only the common law action remains. Anderson v. Brush-Wellman, Inc. (October 11, 1991), Ottawa App. No. 90-OT-046, unreported. - 7 - Appellant argues that a genuine issue of material fact exists as to whether appellees' conduct in failing to verify his age, giving him inadequate training and telling him that he did not have to wear the safety device amounted to an intentional tort. Appellant does not argue that appellees committed the intentional tort with the direct purpose and intent to cause the appellant's injury. Appellant asserts that the element of intent can be inferred from the substantial certainty that the injury would occur. The Supreme Court of Ohio set forth the standard for the common law cause of action where intent is not direct but must be inferred: [I]n order for `intent' to be found 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 his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjected to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 116. To apply this test to the facts of the present case in the light most favorable to the appellant, the result would be that the appellees did not have the requisite intent. The appellees - 8 - knew that the punch press could be dangerous under the first prong of the test. The appellees did require the appellant to operate the punch press as a duty of his employment, under the third prong. However, the appellees did not have knowledge that harm was substantially certain to befall the appellant if he was subjected to the instrumentality of the punch press. Even if appellees were aware of the risk in operating the punch press, they could not have been substantially certain that harm would befall the appellant by their failure to verify his age, or their failure to give him extensive training or by informing the appellant that he did not have to wear his safety device. There are many acts within the business or manufacturing process which involve the existence of dangers, where management fails to take corrective action, institute safety measures, or properly warn the employees of the risks involved. Such conduct may be characterized as gross negligence or wantonness on the part of the employer. However, in view of the overall purposes of our Workers' Compensation Act, such conduct should not be classified as an `intentional tort' and therefore an exception, under Blankenship [v.Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608] or Jones [v. VIP Development Co. (1984), 15 Ohio St. 3d 90], to the exclusivity of the Act. Van Fossen v. Babcock & Wilcox Co. at 117. While recognizing the common-law right of recovery for [an intentional] tort, courts have quite consistently refused to stretch the common- law liability of an employer to include accidental injuries resulting from the gross, wanton, reckless, or culpable negligence of the employer. - 9 - Van Fossen v. Babcock & Wilcox Co. at 113. The appellees' acts could be characterized as reckless or negligent but their acts were not substantially certain to result in harm to the appellant. Even if appellees' acts were causally related to appellant's accidental injury, the appellees will not be liable at common-law for the injury unless those acts were directly or indirectly intentional. "Where the facts alleged are such that reasonable minds could differ as to whether the defendant's conduct was intentional, a jury question is created which ordinarily may not be resolved by summary judgment." Jones v. VIP Development Co. (1984) 15 Ohio St. 3d 90, 96. The facts alleged in this case were not such that reasonable minds could differ as to the intentional nature of the appellees' conduct. Under the definition of intentional as used in the area of torts committed upon employees by employers, the appellees' conduct could not have been characterized as intentional. In conclusion, appellant has failed to allege specific facts to show that a genuine issue of material fact existed for trial. The appellant's assignment of error is overruled. The trial court's grant of summary judgment is affirmed. - 10 - It is ordered that appellees recover of appellants its 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 Common Pleas Court 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, C.J., AND BLACKMON, J., CONCUR JUDGE ANN DYKE 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. .