COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69190 CARL LACAVA : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : TIM WALTON, ET AL. : OPINION : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: JUNE 13, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-267107. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Roger M. Synenberg, Esq. Synenberg & Marien 526 Superior Avenue Cleveland, OH 44115 Mary Jo Tipping, Esq. 1504 Hanna Building Cleveland, OH 44115 For Defendants-Appellees: Robert Davis, Esq. Suite 1500 Illuminating Building 55 Public Square Cleveland, OH 44113 G. Michael Curtin, Esq. Phillip A. Kuri, Esq. Keller and Curtin Co., L.P.A. 330 Hanna Building 1422 Euclid Avenue Cleveland, OH 44115-1901 -3- DAVID T. MATIA, J.: Carl LaCava, plaintiff-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas granting Tim Walton, et al.'s, defendants-appellees', motion for summary judgment. Plaintiff-appellant raises two assignments of error. This court, finding error, reverses the decision of the trial court and remands the case back to the trial court for further deliberations. I. STATEMENT OF FACTS Carl LaCava, plaintiff-appellant, is an employee for the Greater Cleveland Regional Transit Authority ("R.T.A."). Plaintiff- appellant is claustrophobic having been so diagnosed after the Korean War. As long as plaintiff-appellant is able to see outside a room, his condition does not affect him. While at work, an incident ensued between plaintiff-appellant and another R.T.A. employee, Tim Walton, defendant-appellee. Apparently, plaintiff-appellant walked into defendant-appellee's office and began opening the blinds. Plaintiff-appellant claims defendant-appellee screamed at him, grabbed his left arm and eventually pushed him out of the office. Plaintiff-appellant filed a workers' compensation claim for injuries sustained in the incident. On September 29, 1993, the claim for injuries was allowed by the Industrial Commission for a left shoulder sprain. Moreover, defendant-appellee received a reprimand for his conduct which included a thirty-day suspension from his job. -4- On March 14, 1994, plaintiff-appellant filed a complaint against 1 Tim Walton, defendant-appellee, and the R.T.A. Plaintiff- appellant amended his complaint on May 23, 1994. Plaintiff- appellant's cause of action included the following claims against Tim Walton, defendant-appellee: 1) assault and battery, 2) negligence, 3) the intentional infliction of emotional distress and 4) the negligence infliction of emotional distress. On April 7, 1995, defendant-appellee filed a motion for summary judgment. Plaintiff-appellant filed his motion in opposition on May 22, 1995. The trial court granted defendant-appellee's motion for summary judgment finding defendant-appellee immune from liability pursuant to R.C. 4123.741. Plaintiff-appellant timely filed this appeal. II. FIRST ASSIGNMENT OF ERROR Carl Lacava, plaintiff-appellant, states as his first assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE WALTON PURSUANT TO R.C. 4123.741 UNDER CIRCUMSTANCES WHERE CAUSES OF ACTION FOR INTENTIONAL TORT ARE LEGITIMATELY ALLEGED AGAINST A FELLOW EMPLOYEE. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO R.C 4123.741. Plaintiff-appellant argues the trial court erred in granting summary judgment in favor of defendant-appellee pursuant to R.C. 1 Appellant voluntarily dismissed the R.T.A. from this lawsuit on March 13, 1995. -5- 4123.741. Specifically, plaintiff-appellant argues R.C. 4123.741 only provides fellow employees with immunity against claims of negligence. Since plaintiff-appellant's complaint against defendant-appellee includes intentional tort claims, plaintiff- appellant argues the trial court erred in granting defendant- appellee's motion for summary judgment. Plaintiff-appellant's first assignment of error is well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT. Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317. "Upon a motion for summary judgment pursuant to Civ.R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of material fact exists is on the party moving for the summary judgment." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. -6- Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), Scioto App. No. 1920, unreported. C. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT BASED UPON R.C 4123.741. Fellow-employee immunity is set forth in R.C. 4123.741 which states: No employee of any employer, as defined in division (B) of section 4123.01 of the Revised Code, shall be liable to respond in damages at common law or by statute for any injury or occupational disease, received or contracted by any other employee of such employer in the course of and arising out of the latter employee's employment, or for any death resulting from such injury or occupational disease, on the condition that such injury, occupational disease or death is found to be compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code. We reiterate plaintiff-appellant's cause of action included claims for intentional torts. However, defendant-appellee argues the statute provides immunity for any injury sustained in the course of and arising out of employment. Since the Industrial Commission determined the injury was sustained in the course of and arising out of employment, defendant-appellee argues the plain meaning of the statute provides immunity against any injury including the alleged intentional tort. See Gilman v. Ross (1971), 30 Ohio Misc. 34. We disagree. It is well established that an intentional tort, as alleged in plaintiff-appellant's complaint, necessarily occurs outside the -7- employment relationship. See Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608. Thus, neither R.C. 4123.74, 4123.741, nor Section 35, Article II of the Ohio Constitution "expressly extended the grant of immunity to actions alleging intentional tortious conduct by employers against employees." Id. at 612; Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 631. Moreover, in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 99, the court held that an employee who has accepted workers' compensation benefits is not barred from recovery for an intentional tort committed by his/her employer. The court reasoned further: Nor our we convinced that a different result is mandated by this court's holding in Kaiser v. Strall (1983), 5 Ohio St.3d 91. In that case, we refused to allow a worker, whose injury had been deemed compensable under the Act, to pursue a civil action against her fellow employee who had caused the injury. The fellow-servant immunity conferred by R.C. 4123.741 was considered to be controlling. Kaiser, however, is readily distinguishable from the instant causes in that the plaintiff therein was attempting to recover damages under a negligence theory, rather than one of intentional tort. Common-law damages are clearly unavailable under R.C. 4123.741 for injuries negligently inflicted by a co- employee in the course of employment. Today's holding is restricted to injuries which are received due to intentional misconduct. Thus, Kaiser is inapposite. (footnote omitted). From this analysis and from the fact that an intentional tort committed by either an employer or fellow-employee falls outside the scope of the employment relationship, we find R.C. 4123.741 -8- does not act as a bar to an employee's cause of action against a fellow-employee for injuries sustained from intentional conduct. See Stockum v. Rumpke (1985), 21 Ohio App.3d 236. Moreover, the fact that the claimant has received workers' compensation benefits is inconsequential. Jones, supra; Stockum, supra. For these reasons the trial court erred in granting summary judgment for defendant-appellee based solely upon the fellow- employee immunity statute, R.C. 4123.741. Plaintiff-appellant's first assignment of error is well taken. III. SECOND ASSIGNMENT OF ERROR Carl LaCava, plaintiff-appellant, states as his second assignment of error: THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE WALTON IN THAT A GENUINE ISSUE OF MATERIAL FACT EXISTS AS TO WHETHER DEFENDANT-APPELLEE WALTON COMMITTED AN INTENTIONAL TORT CAUSING INJURY TO APPELLANT LACAVA. Since the trial court's decision was based solely upon the fellow-employee immunity statute, R.C. 4123.741, we find our disposition of plaintiff-appellant's first assignment of error renders the second assignment of error moot. See App.R. 12(A)(1)(c). Judgment reversed and remanded for further proceedings. -9- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said 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. HARPER, P.J. and DYKE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .