Employer's Knowledge of Substantial Certainty of Harm
Establishing that the employer's conduct was more than negligence or recklessness is a difficult standard to meet:
In establishing whether an employer knows that an injury is substantially certain to occur, prior accidents are probative. Taulbee v. Adience Inc., BMI Div. (1997), 120 Ohio App.3d 11, 20.
Moreover, "the absence of prior accidents 'strongly suggests' that injury from the procedure was not substantially certain to result from the manner in which the job was performed. Id.
Establishing the employer's knowledge of substantial certainty of harm is difficult where there are no prior accidents of a similar character, but a lack of prior accidents is not necessarily fatal to a plaintiff's case. Id.
"In the final analysis, absent some other evidence indicating that injury is substantially certain to occur, such as a number of prior accidents resulting from the dangerous condition, a determination of substantial certainty turns in large part on the nature of the dangerous condition." Id., 21.