To prove an intentional workplace tort for civil employer liability in Ohio, a worker must show that the employer 1) had knowledge of a workplace hazardous task or process, 2) had knowledge that if a worker carried out the hazardous task, that injury to the worker would be a "substantial certainty" and 3) despite having this knowledge, the employer still "required" the worker to perform the dangerous task.
In a manufacturing plant where leaking molten plastic, in the presence of continued energized line heaters, can form a built-up hot spot and dangerously spray out of the machinery, the plant foreman admitted this danger of keeping the heaters in operation in testimony about the accident. A safety expert for the injured worker agreed.
The facts found persuasive by the Ohio Supreme Court and Court of Appeals included the following:
- In 1994, OSHA cited this employer for failing to have a lockout-tagout program;
- In 1996, following this fatal accident from sprayed molten plastic, OSHA again cited the employer for failing to follow its own lockout-tagout program;
- The employer knew the manufacturing line was dangerous and knew that failure to follow LO/TO safety procedures could result in death or serious harm to employees;
- A manager in charge of plant safety testified that it was a "virtual certainty" that molten plastic would likely break through existing piping and injure workers on this type of continued operation of the line and heaters and, further, that a lockout-tagout plan was needed for plant safety;
- The accident was preventable using lockout procedures; and
- Yet the employer ignored its own LO/TO safety procedures.
"With that in mind, cases involving workplace intentional torts must be judged on the totality of the circumstances surrounding each incident. Here, molten plastic was forcefully discharged from appellee's manufacturing line and traveled a distance of approximately 3 to 4 ft. before it struck and severely burned Mike Gibson. Whether Gibson was specifically requested to participate or was actually participating in the ongoing repair of the extruder is not relevant to determining whether Gibson was required to perform a dangerous task. Rather, the primary concern is whether appellee, through its policies and conditions of employment, placed Gibson in a position where he was subjected to a "dangerous process, procedure, instrumentality of condition" where harm was substantially certain to follow.
In Gibson v. Drainage Products Inc., 95 Ohio St.3d 171 (May 8, 2002), the court held that the third element could be proven if the worker was merely required to be in the vicinity of a dangerous condition, even if the employee had not been required to perform a dangerous task. The court essentially relaxed the third element, expanding the scope of employees who may be able to sue for workplace injuries.