Ohio: Court Reiterates “Substantially Certain” Test No Longer Applicable in Intentional Tort Actions

While the action of the employer in utilizing undersized “outriggers” to extend a work platform could be characterized as reckless, the employer was nevertheless entitled to summary judgment in an intentional tort action filed against it by an injured worker. The employer’s outrigging system apparently did not comport to the engineering plans. Neither that fact nor the employer’s failure to provide proper fall or other safety protection created a genuine issue of fact as to whether the employer committed an intentional tort absent proof of a deliberate, conscious attempt to injure. Nor was the employer’s OSHA violation determinative. The Court observed that under Ohio Rev. Code Ann. § 2745.01, the former “substantially certain” test no longer applied. Quoting Larson’s Workers’ Compensation Law, the Court indicated recklessness and other types of misconduct were insufficient to establish an intentional tort; nothing short of a conscious and deliberate attempt directed for the purposes of inflicting an injury would suffice.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Pastroumas v. UCL, Inc., 2016 Ohio App. LEXIS 635 (Feb. 26, 2016) [2016 Ohio App. LEXIS 635 (Feb. 26, 2016)]

See generally Larson’s Workers’ Compensation Law, § 103.04 [103.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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