A recent Ohio appellate court decision threatens to place a heavier burden on employers defending workplace intentional tort litigation. Several trade groups and companies have filed friend-of-the-court briefs asking the Supreme Court of Ohio to accept jurisdiction over the appeal and to overturn the appellate court’s decision. They include the Ohio Chemistry Technology Council, American Chemistry Council, and PolyOne Corporation (all represented by Thompson Hine). On April 18, 2012 the court declined to review the decision, and the case will now go back to the trial court.  

In Widican v. Bridgestone Firestone North American Tire L.L.C., Ohio’s Ninth District Court of Appeals held that an employer seeking to avoid retroactive application of Ohio’s intentional tort doctrine is required to make an individualized, evidentiary showing that retroactivity would be inequitable. 2011-Ohio-6602 (Dec. 21, 2011).  

Mr. Widican sued his employer in 2006 for injuries allegedly resulting from occupational chemical exposure he claimed occurred from 1951 to 1981. During that period, the law in Ohio stated that employees could seek compensation for such claims solely through the workers’ compensation system. That rule changed in 1982 (after Mr. Widican had retired), when the Supreme Court of Ohio first ruled, in Blankenship v. Cincinnati Milacron Chemicals, that employees could, in some circumstances, sue their employers and recover under an intentional tort theory. 69 Ohio St. 2d 608, 433 N.E.2d 572 (1982). Widican seeks to have Blankenship applied retroactively to his claim.  

The trial court had granted judgment in favor of Bridgestone, but the Ninth District reversed. In ruling that the case should go back to the trial court, the Ninth District focused on the third prong of the test the Supreme Court of Ohio established in DiCenzo v. A-Best Products, 120 Ohio St. 3d 149, 2008-Ohio-5327 (2008), for whether a judicial decision (such as Blankenship) should apply prospectively only: “Does retroactive application of the decision cause an inequitable result?” 897 N.E.2d at 136.  

The court held that answering this question with respect to employer intentional tort doctrine required individualized case-specific factual considerations. Widican, ¶ 12. Applying this holding to Mr. Widican’s claim and reversing the trial court’s decision granting summary judgment, the court held that “[Bridgestone] failed to submit any evidence regarding the time commitment, financial burden, or other hardship it would incur if it were subjected to an intentional tort claim arising out of an employment situation commencing sixty years ago and terminating thirty years ago.” Id.

Arguing in support of the Supreme Court of Ohio’s jurisdiction over the appeal, Bridgestone and the amici curiae noted that the Ninth District’s decision essentially holds that state supreme court decisions may be applied retroactively to some Ohio citizens but not others, and that there is no way to tell whether any given citizen is subject to retroactive application of the decision without litigating the issue.  

In light of the court’s decision to decline jurisdiction, the case will return to the trial court for further development of the factual record – in particular evidence confirming that retroactive application of Blankenship would be individually and specifically inequitable to Bridgestone in this case. A further appeal may follow.