Ohio employers have had more predictability in connection with tort reform legislation due to the Ohio Supreme Court upholding two portions of this legislation, Senate Bill 80 (S.B. 80). Recently, however, a court of appeals struck down as unconstitutional the employer intentional tort portion of S.B. 80, codified at R.C. § 2745.01, and it likely is only a matter of time before this issue reaches the Ohio Supreme Court.

In Kaminski v. Metal & Wire Products Co., an employee who worked as a press operator was injured when an unstable coil fell onto her legs. She alleged both an employer intentional tort under R.C. § 2745.01 and, because she claimed the law was unconstitutional, an employer intentional tort under common law. The trial court upheld R.C. § 2745.01 as constitutional, but the Seventh District Court of Appeals reversed after “interpreting and applying the Ohio Supreme Court’s past holdings dealing with similar statutes and the Ohio Constitution” and concluding that the current statute violates the Ohio Constitution. The court remanded the case upon finding questions of fact regarding the common law claim of employer intentional tort.

The Seventh District is the first appellate court to address the constitutionality of the employer intentional tort statute. Kaminski is binding only in the Seventh District, but it likely will be considered by other courts of appeals that address this issue. It is also likely that the Ohio Supreme Court will ultimately address this issue, at which time employers will find out whether they will have greater predictability on the law of employer intentional tort. In the meantime, employers in districts other than the Seventh District may be facing a constitutional battle on any claim of employer intentional tort.