               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 08a0270n.06
                            Filed: May 16, 2008

                                         07-3726

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


TRACY L. JOHNSON,                            )
                                             )
      Plaintiff-Appellant,                   )
                                             )
v.                                           )   ON APPEAL FROM THE UNITED
                                             )   STATES DISTRICT COURT FOR THE
KINDRED HEALTHCARE, INC., a/k/a              )   SOUTHERN DISTRICT OF OHIO
KINDRED NURSING CENTERS EAST,                )
LLC, d/b/a MINERVA PARK NURSING              )
AND REHABILITATION CENTER,                   )
      Defendants-Appellees.                  )




      Before: DAUGHTREY, GILMAN, and ROGERS, Circuit Judges.


      PER CURIAM. The plaintiff, Tracy Johnson, appeals the district court’s grant of

summary judgment to the defendant, Kindred Nursing Centers East, LLC, doing business

as Minerva Park Nursing and Rehabilitation Center, on Johnson’s state-law claim that her

employer knew of a dangerous health condition in its facility and intentionally failed to

protect her from that known harm. The district court held that Johnson “failed to establish

the most salient features of the employer intentional tort: employer’s knowledge of the

dangerous condition and intentional exposure of the employee to that condition.”


      The record establishes that while working as a nursing assistant at the defendant’s

facility, Johnson was unwittingly exposed to methicillin-resistant staphylococcus aureus
07-3726
Johnson v. Kindred Healthcare, Inc.

(MRSA), which is highly infectious, when she went to the rescue of an elderly patient in

imminent danger of falling out of bed and, thus, did not have time to don protective gloves

that would have prevented her from becoming infected with MRSA. At the time of the

plaintiff’s contact with the MRSA-infected patient, the nursing facility was unaware of the

nature of the patient’s infection and, indeed, was not notified that he suffered from MRSA

until four days after the plaintiff was diagnosed with MRSA and more than a month after

her contact with the patient.


       The plaintiff’s complaint theorized that the defendant must have known that the

infection was MRSA and, therefore, had intentionally and knowingly subjected her to a

dangerous condition by allowing her to come into close physical contact with the MRSA-

infected patient. Applying Ohio state law, the district court recognized, as have we, that

“[i]n most circumstances, an employee injured in the course of employment is limited to

redress through the Ohio Workers’ Compensation Act. The Workers’ Compensation Act,

although generally comprehensive, contains certain limited exceptions.          One such

exception exists for injuries resulting from an employer’s intentional tort upon an

employee.” Jandro v. Ohio Edison Co., 167 F.3d 309, 313 (6th Cir. 1999) (citation

omitted).


       Under Ohio law, in order to establish that an employer is liable for committing an

intentional tort upon an employee, a plaintiff must prove that: “(1) the defendant had

knowledge of the existence of a dangerous condition, process, procedure, or


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07-3726
Johnson v. Kindred Healthcare, Inc.

instrumentality, (2) the employer knew with substantial certainty that the employee was

likely to suffer harm, and (3) the employer required the employee to perform the job despite

its knowledge of the danger.” Id. (citing Fyffe v. Jeno’s, Inc., 570 N.E.2d 1108, 1112 (Ohio

1991)). Furthermore, in Sanek v. Duracote Corp., 539 N.E.2d 1114, 1117 (Ohio 1989), the

Ohio Supreme Court emphasized that “[t]he plaintiff has the burden of proving by a

preponderance of the evidence that the employer had ‘actual knowledge of the exact

dangers which ultimately caused’ injury.” (Citing Van Fossen v. Babcock & Wilcox Co., 522

N.E.2d 489, 501 (Ohio 1988)).


       The district court held, correctly, that the plaintiff’s case failed on the knowledge

prong, noting that Johnson “fail[ed] to point to any facts demonstrating Defendant’s actual

knowledge of an MRSA infection prior to” the time of her own diagnosis. Having had the

benefit of oral argument, and having studied the record on appeal and the briefs of the

parties, we are not persuaded that the district court erred in dismissing the complaint.

Because the reasons why summary judgment was appropriately entered for the defendant

have been fully articulated by the district court, the issuance of a detailed opinion by this

court would be duplicative and would serve no useful purpose. Accordingly, we AFFIRM

the judgment of the district court upon the reasoning set out by that court in its opinion and

order entered on April 23, 2007.




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