Van Fossen v. Babcock & Wilcox Co

In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, the Supreme Court of Ohio held that knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent. Id. at paragraph six of the syllabus. The Court further held that the threshold for establishing employer intentional tort is very high in light of the exclusivity of the workers' compensation system: "There are many acts within the business or manufacturing process which involve the existence of dangers, where management fails to take corrective action, institute safety measures, or properly warn the employees of the risks involved. Such conduct may be characterized as gross negligence or wantonness on the part of the employer. However, in view of the overall purposes of our Workers' Compensation Act, such conduct should not be classified as an 'intentional tort'." Id. at 117. The Ohio Supreme Court held that the proof required to establish an intentional tort must be beyond that required to prove negligence or recklessness. Id. at paragraph six of the syllabus. The Court set forth a three-part test an employee must satisfy in order to prevail against his or her employer for an intentional tort. Id. at paragraph five of the syllabus. This test was modified in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, where the Court held that the employee must prove: (1) knowledge by the employer of the existence of a dangerous process; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and; (3) that the employer under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.' Id.