Determining Whether An Employer Committed An Intentional Tort Against An Employee
In Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, the Ohio Supreme Court articulated the legal standard by which courts determine whether an employer committed an intentional tort against an employee:
"In order to establish 'intent' for the purpose of proving the existence of an intentional tort committed by an employer against an employee, the following must be demonstrated:
(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;
(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;
(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. at paragraph one of the syllabus.
Furthermore, mere knowledge and appreciation of a risk by an employer is not enough to establish intent. Barger v. Freeman Mfg. Supply Co., 9th Dist. No. 03CA008313, 2004 Ohio 2248, at P10, citing Fyffe, 59 Ohio St.3d at paragraph two of the syllabus.
Moreover, in order to establish an intentional tort by an employer, a plaintiff must demonstrate proof beyond that required to prove negligence or recklessness. Fyffe, 59 Ohio St.3d at paragraph two of the syllabus.
If a plaintiff can show that harm or consequences will follow the risk, that the employer knows that injuries to employees are certain or substantially certain to result from the risk, and yet the employer still requires the employee to proceed, the employer is treated by the law as if he had in fact desired the end result. See Id.