[Cite as Klaus v. United Equity, Inc., 2010-Ohio-3549.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                        ALLEN COUNTY



JONATHON KLAUS,                                             CASE NO. 1-07-63

    PLAINTIFF-APPELLANT,

    v.

UNITED EQUITY, INC.,                                              OPINION

    DEFENDANT-APPELLEE.



                     Appeal from Allen County Common Pleas Court
                                 Trial Court No. CV2006 0696

                                       Judgment Affirmed

                               Date of Decision: August 2, 2010




APPEARANCES:

         Victoria U. Maisch, for Appellant

         Elizabeth A. Harvey, for Appellee
Case No. 1-07-63




PRESTON, J.

                         I. Facts/ Procedural Posture

      {¶1} Plaintiff-appellant, Jonathon Klaus (hereinafter “Klaus”), appeals the

Allen County Court of Common Pleas’ grant of summary judgment in favor of his

former employer, defendant-appellee, United Equity, Inc. (hereinafter “United”)

on his claim for an employer intentional tort for injuries he sustained while

working. For the reasons that follow, we affirm.

      {¶2} Around 1983, the Delphos Equity Elevator Company and The

Spencerville Farmers’ Union merged into one corporation called United Equity.

(Knippen Depo. at 11-12). United’s Spencerville facility grinds, mixes, loads, and

packages grain products and feed. (Haehn Depo. at 7). In order to accomplish

these tasks, United uses various pieces of mechanical equipment, including

various augers, which move and grind grain. At the time of Klaus’ injury, United

had five (5) employees at its Spencerville facility: Cory Haehn, general

manager/supervisor; Jacqueline Knippen, general manager/bookkeeper; Allen

McMichael, laborer/truck driver; and Phillip O’Neill and Jonathon Klaus, laborers.

(Haehn Depo. at 33).

      {¶3} United hired Klaus as a general laborer at the Spencerville grain

facility in April 2005. (Klaus Depo. at 52). Klaus was trained by his fellow

employees, McMichael and O’Neill, to grind, mix, load, and package grain. (Id. at



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38-40). Occasionally, equipment at the Spencerville facility would need repairs.

Klaus helped his fellow employees with the repairs and, on occasion, would make

some small repairs himself. (Id.; Id at 53-56)

       {¶4} As a part of its operational safety plan, United implemented a

written lock-out/tag-out (hereinafter “LO/TO”) procedure for repairing power

equipment. Klaus, however, never received LO/TO training nor is it clear whether

he ever received a written LO/TO policy when he began his employment. (Klaus

Depo. at 66); (O’Neill Depo. at 47). United’s employees and management did not

follow or enforce the written LO/TO policy; rather, each employee developed their

own safety “rules of thumb.” (Haehn Depo. at 21); (O’Neill Depo. at 17, 22, 31);

(McMichael Depo. at 30-32). Haehn removed fuses from electrical boxes before

repairing equipment, while others, like Klaus and O’Neill, simply turned off the

equipment’s power switch or made sure someone else had turned it off. (Klaus

Depo. at 59); (Haehn Depo. at 21).

       {¶5} On February 13, 2006, Klaus was informed that two (2) shear bolts

on a grinding auger needed to be replaced. Klaus had replaced these shear bolts

three or four (3 or 4) times prior and proceeded to make the repairs this time as

well. (Klaus Depo. at 62). The shear bolts that needed to be replaced were located

in the section of the auger located on the facility’s third floor. (McMichael Depo.

at 27-28). The power source for the auger is located on the facility’s first floor.

(O’Neill Depo. at 26). The person on the third floor cannot see the first floor



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power source while repairing the auger, and there is no communication device for

employees to use while making the repair. (Klaus Depo. at 59); (O’Neill Depo. at

45); (Rauck Aff. at ¶14).

       {¶6} Klaus found a shear bolt to make the repair. Klaus then told O’Neill

to turn off the power to the auger and keep an eye on the power switch. (Klaus

Depo. at 64). Klaus went to the man-pull lift and ascended to the third floor. At

some point after Klaus began making the repairs, McMichael came into the

facility and asked O’Neill if they had “got it.” (O’Neill Depo. at 42). O’Neill

thought McMichael was asking if Klaus had found a shear bolt and remembered

saying, “yes, we got one.” (Id.). McMichael, on the other hand, thought O’Neill

meant that Klaus was finished repairing the auger, and so McMichael activated the

power to the auger. (Id.); (McMichael Depo. at 36). Klaus, however, was not

finished repairing the auger, and his hand was amputated when McMichael

activated the power. (McMichael Depo. at 45-46).

       {¶7} On July 12, 2006, Klaus filed a complaint against United alleging an

employer intentional tort as a result of the injuries he sustained. (Doc. No. 1). On

September 8, 2006, United filed its answer. (Doc. No. 5). On June 1, 2007, United

filed a motion for summary judgment. (Doc. No. 23). On July 23, 2007, the trial

court granted United’s motion. (Doc. No. 34). On September 10, 2007, the trial

court filed a judgment entry dismissing the complaint. (Doc. No. 40).




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      {¶8} On September 14, 2007, Klaus appealed to this Court asserting four

assignments of error. (Doc. No. 42). On March 24, 2008, we reversed the trial

court’s grant of summary judgment, finding material issues of fact remained as to

whether Klaus’s injury was “substantially certain” to occur under Fyffe v. Jeno’s

Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus.

Klaus v. United Equity, 3d Dist. No. 1-07-63, 2008-Ohio-1344.

      {¶9} On May 12, 2008, United Equity appealed our decision to the Ohio

Supreme Court, which accepted the appeal on September 10, 2008.

      {¶10} On March 23, 2010, the Ohio Supreme Court reversed our decision

and remanded the matter for this Court to “apply” its recent decisions in Kaminski

v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d

1066, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280,

2010-Ohio-1029, 927 N.E.2d 1092, neither of which had been decided prior to

Klaus’ appeal to this Court. Klaus v. United Equity, Inc., 125 Ohio St.3d 279,

2010-Ohio-1014, 927 N.E.2d 1092.

      {¶11} The Ohio Supreme Court’s notice of remand was filed with this

Court on April 8, 2010, and, on April 14, 2010, we ordered the parties to file

supplemental briefs in light of Kaminski and Stetter, supra. The parties have filed

their supplemental briefs, and the appeal is now before the Court on remand.




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                                Standard of Review

       {¶12} We review a decision to grant summary judgment de novo. Doe v.

Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243, citing Grafton v. Ohio

Edison (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is

proper where: (1) there is no genuine issue of material fact; (2) the moving party is

entitled to judgment as a matter of law; and (3) reasonable minds can reach but

one conclusion when viewing the evidence in favor of the non-moving party, and

the conclusion is adverse to the non-moving party. Civ.R. 56(C); Grafton, 77 Ohio

St.3d at 105, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn.

(1994), 69 Ohio St.3d 217, 219, 631 N.E.2d 150.

       {¶13} Material facts are those facts “that might affect the outcome of the

suit under the governing law.” Turner v. Turner (1993), 67 Ohio St.3d 337, 340,

617 N.E.2d 1123, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 202. “Whether a genuine issue exists is answered

by the following inquiry: [d]oes the evidence present ‘a sufficient disagreement to

require submission to a jury’ or is it ‘so one-sided that one party must prevail as a

matter of law[?]’” Id., citing Liberty Lobby, Inc., 477 U.S. at 251-52.

       {¶14} Summary judgment should be granted with caution, resolving all

doubts in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d

326, 333, 587 N.E.2d 825. “The purpose of summary judgment is not to try issues

of fact, but is rather to determine whether triable issues of fact exist.” Lakota Loc.



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Schools Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671

N.E.2d 578.

                                    III. Analysis

A.     The Ohio Supreme Court’s Decisions in Kaminski & Stetter

       {¶15} Before reviewing the assignments of error in this appeal, it is

necessary to discuss the Ohio Supreme Court’s recent decisions in Kaminski and

Stetter. 2010-Ohio-1027; 2010-Ohio-1029. As the Court noted, the net result of

these two decisions was to confirm the constitutionality of R.C. 2745.01, the

employer intentional tort statute. Kaminski, 2010-Ohio-1027, at ¶2. That being

said, we now turn our attention to the first of these two cases.

       {¶16} The Court in Kaminski ultimately held that R.C. 2745.01 did not

violate Sections 34 or 35 of Article II of the Ohio Constitution. 2010-Ohio-1027,

at ¶¶1, 98, 101. In reaching that conclusion, the Court generally observed that

Section 35 and its derivative legislation “were public policy trade-offs” by which

the employee achieved “a certain and speedy recovery in exchange for granting a

more limited liability to the employer.” Id. at ¶17, citing Van Fossen v. Babock &

Wilcox Co. (1988), 36 Ohio St.3d 100,110, 522 N.E.2d 489. The Court’s analysis

began with the history behind the enactment of Section 35, which allowed for the

establishment of a state-regulated workers’ compensation fund. Id. at ¶¶14-20.

The Court first noted that, in 1911 and prior to Section 35’s enactment, the

legislature passed a statute governing the compensation of industrial injuries,



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which contained a “wilful act” exception that allowed injured employees to bring a

common-law action against his/her employer in certain situations. Id. at ¶¶16, 18.

This statute, however, did not define the term “wilful act,” and, due to

“considerable legal activity against employers,” the legislature amended the statute

in 1914 to define “wilful act” as an act done “knowingly and purposely with the

direct object of injuring another.” Id. at ¶18, citing Van Fossen, 36 Ohio St.3d at

110; 104 Ohio Laws 194. The Court next observed that, in Gildersleeve v. Newton

Steel Co. (1924), 109 Ohio St. 341, 142 N.E. 678, it had found that the term

“willful act” in the revised statute “* * * imports an act of will and design and of

conscious intention to inflict injury upon some person. Gross negligence or

wantonness can no longer be a willful act under this section * * *.” Id. at ¶18. The

Court further noted that, in 1924, Section 35 was amended to provide: “[s]uch

compensation shall be in lieu of all other rights to compensation,” and that

employers who comply with workers’ compensation laws “shall not be liable to

respond in damages at common law or by statute.” Id. at ¶19. “[T]his provision

was widely believed to grant immunity to complying employers ‘from any

common-law actions for injuries suffered by employees in the workplace,’”

according to the Court. Id., citing Van Fossen, 36 Ohio St.3d at 111 (emphasis

sic). The Court in Kaminski further observed that, following its decision in Triff v.

Natl. Bronze & Aluminum Foundry Co. (1939), 135 Ohio St. 191, 20 N.E.2d 232

that an employee could file suit, despite Section 35, for an injury that resulted



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from   a   non-compensable     occupational    disease,   the   General   Assembly

“immediately amended the workers’ compensation laws to restore the exclusivity

of remedy.” Id. at ¶20, citing Van Fossen, 36 Ohio St.3d at 111.

       {¶17} The Court in Kaminski then acknowledged that, despite the

legislative efforts to limit an injured worker’s recovery to that provided within the

workers’ compensation system, it “devised” an exception in           Blankenship v.

Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572. Id.

at ¶21. Blankenship’s syllabus held that “[a]n employee is not precluded by

Section 35, Article II of the Ohio Constitution, or by R.C. 4123.74 * * * from

enforcing his common law remedies against his employer for an intentional tort.”

Id. Thereafter, in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 95, 472 N.E.2d

1046, the Court relied upon Blankenship and rejected the proposition that an

employer’s “specific intent to injure is necessary to a finding of intentional

misconduct.” Id. at ¶25. The Court in Jones held that: “[a]n intentional tort is an

act committed with the intent to injure another, or committed with the belief that

such injury is substantially certain to occur.” Id. After Blankenship and Jones, the

legislature enacted former R.C. 4121.80 (eff. 8/22/86), which defined

“substantially certain” as requiring that an employer act “with deliberate intent to

cause an employee to suffer injury, disease, condition, or death.” Id. at ¶27, citing

141 Ohio Laws, Part I, 733, 736. In the meantime, the Ohio Supreme Court in

Van Fossen clarified the standards set forth in Jones for a common-law, employer



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intentional tort. Id. at ¶28, citing (1988), 36 Ohio St. at 115. The standards in Van

Fossen were subsequently modified in Fyffe (1991), 59 Ohio St.3d 115, wherein

the Court held that:

       * * * in order to establish ‘intent’ for the purpose of proving the
       existence of an intentional tort committed by an employer
       against his 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; 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. at ¶¶29-30. Fyffe’s common-law test applied for employer intentional torts

until April 7, 2005, the effective date of R.C. 2745.01, which was at issue in

Kaminski. Id. at ¶33. The Court in Kaminski then noted that, in Brady v. Safety-

Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, it had found former R.C.

4121.80, which defined “substantially certain,” unconstitutional under Sections 34

and 35, Article II of the Ohio Constitution. Id. at ¶35. After Brady, the legislature

responded yet again and enacted the former version of R.C. 2745.01 (eff. 11/1/95),

but the Court, relying upon Brady, found this statute also unconstitutional.

Johnson v. BP Chems., Inc. (1999), 85 Ohio St.3d 298, 707 N.E.2d 1107.

Kaminski at ¶¶46, 78-80.

       {¶18} In light of this history, the Court in Kaminski observed that: “the

General Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in

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2745.01(B), is to permit recovery for employer intentional torts only when an

employer acts with specific intent to cause an injury, subject to subsections (C)

and (D).” Id. at ¶56 (emphasis added), citing Talik v. Fed. Marine Terminals, Inc.,

117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶17 (the General Assembly

in R.C. 2745.01 “modified the common-law definition of an employer intentional

tort” by rejecting “the notion that acting with a belief that injury is substantially

certain to occur is analogous to wanton misconduct”). The Court also noted that:

       {¶ 99} R.C. 2745.01 by no means places Ohio outside the
       national mainstream relative to employer intentional torts and
       the exclusivity of the workers’ compensation remedy. Rather,
       R.C. 2745.01 appears to harmonize the law of this state with the
       law that governs a clear majority of jurisdictions.

       {¶ 100} “[T]he common-law liability of the employer cannot,
       under the almost unanimous rule, be stretched to include
       accidental injuries caused by the gross, wanton, wilful,
       deliberate, intentional, reckless, culpable, or malicious
       negligence, breach of statute, or other misconduct of the
       employer short of a conscious and deliberate intent directed to
       the purpose of inflicting an injury.” * * * Furthermore, “Ohio is
       one of only eight states that have judicially adopted a
       ‘substantial certainty’ standard for employer intentional torts.”
       (Footnote omitted.) Talik, 117 Ohio St.3d 496, 2008-Ohio-937,
       885 N.E.2d 204, ¶ 32, citing 6 Larson’s Workers’ Compensation
       Law (2007) 103-10, Section 103.04[1].

Id. at ¶¶99-100. The Court in Kaminski ultimately upheld R.C. 2745.01, finding

that it was not in conflict with Sections 34 or 35 of Article II of the Ohio

Constitution. Id. at ¶101. In reaching this decision, the Court also limited its

previous holding in Johnson to former R.C. 2745.01 (eff. 11/1/95). Id. at ¶¶1, 97.




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       {¶19} After concluding that R.C. 2745.01 was constitutional, the Court

applied the statute to the record before it and concluded that the employer was

entitled to summary judgment because “nothing in the record demonstrate[ed] that

Kaminski can prove that her employer committed a tortious act with the intent to

injure her or that the employer acted with deliberate intent to cause her to suffer an

injury for purposes of R.C. 2745.01(A) and (B).” Id. at ¶104.

       {¶20} Stetter v. R.J. Corman Derailment Servs., L.L.C. was before the

Ohio Supreme Court upon certified questions of state law from the Federal District

Court for the Northern District of Ohio, Western Division, regarding the

constitutionality of R.C. 2745.01. 2010-Ohio-1029, ¶1. The Court was presented

with the following eight (8) certified questions:

       “1. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the right to trial by
       jury?

       “2. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the right to a
       remedy?

       “3. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the right to an open
       court?

       “4. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the right to due
       process of law?

       “5. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the right to equal
       protection of the law?


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       “6. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for violating the separation of
       powers?

       “7. Is R.C. § 2745.01, as enacted by House Bill 498, effective
       April 7, 2005, unconstitutional for conflicting with the legislative
       authority granted to the General Assembly by § 34 and § 35,
       Article II, of the Ohio Constitution?

       “8. Does R.C. § 2745.01, as enacted by House Bill 498, effective
       Apri1 7, 2005, do away with the common law cause of action for
       employer intentional tort?”

Id. at ¶¶7-14. The Court answered all the certified questions in the negative and

found R.C. 2745.01 to be constitutional. Id. at ¶¶94-97.

       {¶21} Relevant to this appeal, the Court in Stetter, answering certified

question number eight (8) in the negative, stated:

       {¶ 23} In an argument going to the eighth certified question,
       petitioners assert that R.C. 2745.01 “does not do away with the
       common law cause of action for employer intentional tort.”
       (Emphasis added.) Rather than arguing that R.C. 2745.01 is
       unconstitutional, petitioners present an elaborate argument that
       R.C. 2745.01 is actually constitutional when understood in its
       proper context.

       {¶ 24} Petitioners first contend that the portion of R.C.
       2745.01(A) regarding the employer’s intent to injure another is
       actually a codification of the common-law cause of action
       developed by this court, in such cases as Blankenship v.
       Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23
       O.O.3d 504, 433 N.E.2d 572, and in Fyffe v. Jeno’s, Inc. (1991),
       59 Ohio St.3d 115, 570 N.E.2d 1108. Petitioners then assert that
       R.C. 2745.01(A) both acknowledges the existing common-law
       action for employer intentional torts and creates “a new
       statutory cause of action for deliberately intended employer
       intentional torts.” (Emphasis sic.)




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       {¶ 25} Petitioners accordingly contend that the General
       Assembly meant to accept this court’s holdings in Brady and
       Johnson.

       {¶ 26} For reasons also discussed in Kaminski, we reject
       petitioners’ construction of R.C. 2745.01. It was the General
       Assembly’s intent in enacting R.C. 2745.01, as expressed
       particularly in 2745.01(B), to permit recovery for employer
       intentional torts only when an employer acts with specific intent
       to cause an injury. See id., --- Ohio St.3d ----, 2010-Ohio-1027, ---
       N.E.2d ----, at ¶ 56.

       {¶ 27} To accept petitioners’ view of the statute, we must ignore
       the history of employer intentional-tort law in Ohio and the
       dynamic between the General Assembly’s attempts to legislate in
       this area and this court’s decisions reacting to those attempts.
       Instead, we find that R.C. 2745.01 embodies the General
       Assembly’s intent to significantly curtail an employee’s access to
       common-law damages for what we will call a “substantially
       certain” employer intentional tort. We do not view the statute as
       a codification of this court’s decisions in Brady, 61 Ohio St.3d
       624, 576 N.E.2d 722, and Johnson, 85 Ohio St.3d 298, 707 N.E.2d
       1107.

2010-Ohio-1029, at ¶¶23-27. Also relevant to the appeal sub judice, the Court in

Stetter emphasized throughout its opinion that, by enacting R.C. 2745.01, the

legislature permissibly modified the common-law of employer intentional torts. Id.

at ¶¶36, 52-53, 60, 64-65, 84, 94.

B.     Klaus’ Assignments of Error

       {¶22} We now apply the Court’s decisions in Kaminski and Stetter to

Klaus’ assignments of error. For clarity, we elect to address his assignments of

error out of the order they appear in his brief.




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                       ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN FAILING TO ADDRESS
       THE ISSUE OF WHETHER R.C. 2745.01 IS AN
       AFFIRMATIVE DEFENSE WHICH MUST BE RAISED BY
       UNITED OR ITS DEFENSE IS WAIVED.

       {¶23} In his third assignment of error, Klaus argues that R.C. 2745.01 is an

affirmative defense, which United has waived by failing to raise the statute’s

applicability in its answer. We disagree.

       {¶24} As an initial matter, United did not specifically assert R.C. 2745.01

as an affirmative defense in its answer; however, United did assert the protection

of Ohio’s Workers’ Compensation laws. (Answer, Doc. No. 5); Schroerluke v.

AAP St. Mary’s Corp. (Feb. 16, 1996), 3d Dist. No. 2-95-27, at *2, citing

Hamilton v. East Ohio Gas Co. (1973), 47 Ohio App.2d 55, 351 N.E.2d 775 (R.C.

4123.74 is an affirmative defense). Therefore, United has preserved any defenses

it may have relative to the Ohio Workers’ Compensation laws. We now consider

whether R.C. 2745.01 is an affirmative defense and whether or not United has

waived this defense by failing to assert it in its answer.

       {¶25} An affirmative defense is “a new matter which, assuming the

complaint to be true, constitutes a defense to it * * * [and] ‘any defensive matter in

the nature of a confession and avoidance. It admits that the plaintiff has a claim

(the “confession”) but asserts some legal reason why the plaintiff cannot have any

recovery on that claim (the “avoidance”).’” Baraby v. Swords, 166 Ohio App.3d

527, 2006-Ohio-1993, 851 N.E.2d 559, ¶34, quoting Eulrich v. Weaver Bros., Inc.,

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165 Ohio App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542, ¶15, quoting State ex rel.

Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 33, 661

N.E.2d 187. “Affirmative defenses must be set forth in a responsive pleading,

through a Civ.R. 12(b) motion, or by an amendment under Civ.R. 15.” Baraby,

2006-Ohio-1993, at ¶34, citing Eulrich, 2005-Ohio-5891, at ¶13.

       {¶26} Klaus cites this Court’s decision in Baraby, supra, in support of his

argument that R.C. 2745.01 is an affirmative defense. 2006-Ohio-1993.              In

Baraby, this Court concluded that R.C. 1705.48, affording members and managers

of limited liability companies protection against individual liability, was an

affirmative defense. 2006-Ohio-1993, at ¶34. The essential and relevant facts of

the case are these. Natalia Baraby was a tenant in an apartment owned by Swords

Property Management, Ltd., a limited liability company whose members were

Lawrence and Carol Swords. Id. at ¶3. Pertinent here, Baraby filed a complaint

against Swords Property Management and Lawrence and Carol Swords,

personally, after two of her children died as a result of a fire at the apartment. Id.

at ¶¶4-5. The trial court granted summary judgment in favor of Lawrence and

Carol Swords on Baraby’s claims against them personally, finding that Lawrence

and Carol had acted in their capacity as members of the limited liability company,

Swords Property Management. Id. at ¶33. On appeal, Baraby argued, in part, that

the trial court erred in dismissing these claims because Lawrence and Carol never




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timely asserted their limited liability as an affirmative defense, and as such, the

defense was waived. Id. This Court agreed, reasoning as follows:

        Affirmative defenses must be set forth in a responsive pleading,
        through a Civ.R. 12(b) motion, or by an amendment under
        Civ.R. 15. See Eulrich v. Weaver Bros., Inc., 165 Ohio App.3d
        313, 2005-Ohio-5891, 846 N.E.2d 542, at ¶ 13. In this case,
        Lawrence and Carol failed to raise the defense provided by R.C.
        1705.48 until they filed their motion for summary judgment. * *
        * By arguing that R.C. 1705.48 protects them from individual
        liability, Lawrence and Carol essentially admit that Natalia has
        a claim (the confession), but assert statutory protection as to why
        she cannot recover from them individually (the avoidance).
        Because Lawrence and Carol failed to properly raise the
        affirmative defense, they have waived it.

Id. at ¶34.

        {¶27} However, R.C. 1705.48, the statute at issue in Baraby, is different

from R.C. 2745.01, the statute at issue here. The former provides, in pertinent

part:

        (A) The debts, obligations, and liabilities of a limited liability
        company, whether arising in contract, tort, or otherwise, are
        solely the debts, obligations, and liabilities of the limited liability
        company.

        (B) Neither the members of the limited liability company nor
        any managers of the limited liability company are personally
        liable to satisfy any judgment, decree, or order of a court for, or
        are personally liable to satisfy in any other manner, a debt,
        obligation, or liability of the company solely by reason of being a
        member or manager of the limited liability company.

R.C. 1705.48(A), (B). The latter provides, in relevant part:

        (A) In an action brought against an employer by an employee,
        or by the dependent survivors of a deceased employee, for
        damages resulting from an intentional tort committed by the


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      employer during the course of employment, the employer shall
      not be liable unless the plaintiff proves that the employer
      committed the tortious act with the intent to injure another or
      with the belief that the injury was substantially certain to occur.

      (B) As used in this section, “substantially certain” means that
      an employer acts with deliberate intent to cause an employee to
      suffer an injury, a disease, a condition, or death.

R.C. 2745.01 (A), (B). The plain language of R.C. 1705.48 assumes the existence

of a valid claim (the “confession”) by using the terms “debts,” “obligations,” and

“liabilities,” as well as “judgment,” “decree,” or “order of a court.” The statute,

then, provides “the avoidance” by specifically exempting members and managers

of limited liability companies from personal liability on these assumed, valid

claims against the limited liability company. As such, the statute provides an

affirmative defense, by definition, as we found in Baraby. 2006-Ohio-1993, at

¶34. Unlike R.C. 1705.48, the plain language of R.C. 2745.01 does not assume

the existence of a valid employer intentional tort claim; rather, the statute

“modifie[s] the common-law definition of an employer intentional tort.” Talik,

2008-Ohio-937, at ¶17; Kaminski, 2010-Ohio-1027, at ¶56, citing Talik at ¶17;

Stetter, 2010-Ohio-1029, at ¶¶36, 52-53, 60, 64-65, 84, 94. Specifically, R.C.

2745.01 modified the common-law of employer intentional torts that was

previously set forth in Fyffe by redefining the claim’s essential elements.

Kaminski, 2010-Ohio-1027, at ¶33. Since R.C. 2745.01 contains no “confession”

like R.C. 1705.48, it can not, by definition, constitute an affirmative defense.

Baraby, 2006-Ohio-1993, at ¶34, quoting Eulrich, 2005-Ohio-5891, at ¶15,

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quoting State ex rel. Plain Dealer Publishing Co., 75 Ohio St.3d at 33.

Furthermore, R.C. 2745.01 places the burden of proof upon the plaintiff, unlike an

affirmative defense, which places the burden of proof upon the defendant.

MatchMaker Internatl., Inc. v. Long (1995), 100 Ohio App.3d 406, 408, 654

N.E.2d 161, citing Dykeman v. Johnson (1910), 83 Ohio St. 126, 135, 93 N.E. 626

and Gordon v. Mobile Diagnostic Serv. (Dec. 7, 1988), 9th Dist. No. 13571, at *7

(“It is well settled in Ohio that the defendant asserting an affirmative defense has

the burden of proof in establishing such defense.”). For these reasons, we find that

R.C. 2745.01 is not an affirmative defense and reject Klaus’ argument that United

waived this defense by failing to timely assert it.

       {¶28} Klaus’ third assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. IV

       THE TRIAL COURT ERRED IN FAILING TO APPLY THE
       REDUCED STANDARD OF “SUBSTANTIAL CERTAINTY”
       ENACTED IN R.C. 2745.01 [SIC] MOST RECENT
       AMENDMENT.

                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED WHEN IT MISAPPLIED
       CIV.R. 56(C) BECAUSE IT FAILED TO CONSTRUE ALL
       THE EVIDENCE IN FAVOR OF THE NONMOVING PARTY.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT ERRED WHEN IT GRANTED
       DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
       PURSUANT TO CIV.R. 56 BY FINDING THAT PLAINTIFF
       DID NOT DEMONSTRATE AN ISSUE OF FACT THAT HIS
       INJURY WAS SUBSTANTIALLY CERTAIN TO OCCUR.

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       {¶29} In his fourth assignment of error, Klaus argues that the trial court

erred by failing to apply R.C. 2745.01’s less stringent standard of “substantial

certainty.” Klaus argues that R.C. 2745.01’s “substantial certainty” requirement is

less stringent than Fyffe’s because the statute only requires that the employer

commit the tortious act with the “belief that the injury was substantially certain to

occur”; whereas, Fyffe required knowledge by the employer that an injury was

substantially certain to occur.

       {¶30} In his first and second assignments of error, Klaus argues that

summary judgment was inappropriate since a question of fact exists concerning

whether his injury was substantially certain to occur under R.C. 2745.01.

Specifically, Klaus argues that United’s conscious decisions not to: enforce

LO/TO procedures, provide the necessary LO/TO equipment, and train him on

LO/TO procedures create a question of fact as to whether United’s tortious acts

were committed with the belief that an injury was substantially certain to occur.

Klaus argues that United’s conscious decisions distinguish his case from

Kaminski.

       {¶31} As an initial matter, we must reject Klaus’ argument in his fourth

assignment of error that R.C. 2745.01’s “substantial certainty” requirement is less

stringent than the “substantial certainty” articulated in Fyffe.      The Court in

Kaminski observed:




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      {¶ 56} * * * we agree with the court of appeals that the General
      Assembly’s intent in enacting R.C. 2745.01, as expressed
      particularly in 2745.01(B), is to permit recovery for employer
      intentional torts only when an employer acts with specific intent
      to cause an injury, subject to subsections (C) and (D). See Talik v.
      Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937,
      885 N.E.2d 204, ¶ 17 (the General Assembly in R.C. 2745.01
      “modified the common-law definition of an employer intentional
      tort” by rejecting “the notion that acting with a belief that injury
      is substantially certain to occur is analogous to wanton
      misconduct”). * * *

      {¶ 57} This view is supported by the history of employer
      intentional-tort litigation in Ohio and by a comparison of the
      current statute to previous statutory attempts. See, e.g., Van
      Fossen, 36 Ohio St.3d at 108-109, 522 N.E.2d 489, holding that
      former R.C. 4121.80(G) (which bore a marked resemblance to
      current R.C. 2745.01(B)) imposed “a new, more difficult statutory
      restriction upon” an employee’s ability to bring an employer
      intentional-tort action; Johnson, 85 Ohio St.3d at 310, 707 N.E.2d
      1107 (Cook, J., dissenting) (“By enacting [former] R.C. 2745.01,
      the General Assembly sought to statutorily narrow [the]
      common-law definition [of employer intentional tort] to ‘direct
      intent’ torts only”). Accordingly, our task in this case and in
      Stetter is to determine whether the statute, insofar as it intends to
      significantly restrict actions for employer intentional torts,
      survives scrutiny under certain provisions of the Ohio
      Constitution.

2010-Ohio-1027, at ¶¶56-57 (emphasis added); Stetter, 2010-Ohio-1029, at ¶26.

Likewise, the Court in Stetter noted “* * * R.C. 2745.01 embodies the General

Assembly’s intent to significantly curtail an employee’s access to common-law

damages for what we will call a ‘substantially certain’ employer intentional tort.”

2010-Ohio-1029, at ¶27. The Court in Stetter further acknowledged that “the

statute significantly limits lawsuits for employer workplace intentional torts.” Id.

at ¶28. Likewise, the argument that R.C. 2745.01 was merely a codification of

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Fyffe’s “substantial certainty” standard is meritless in light of Kaminski and

Stetter. 2010-Ohio-1027, at ¶¶56, 103; 2010-Ohio-1029, at ¶¶23-27. Therefore,

we reject Klaus’ argument that the General Assembly created a less stringent

standard in R.C. 2745.01 than was previously articulated in Fyffe.

       {¶32} Next, we must determine whether the trial court erred in granting

summary judgment in light of R.C. 2745.01. For its part, the trial court’s entry,

much like our prior opinion, cited the statute but analyzed Klaus’ intentional tort

claim under Fyffe. (Jul. 23, 2007 JE, Doc. No. 34); Klaus, 2008-Ohio-1344, at

¶¶16-18. Nevertheless, as this Court has recognized before, “[a] judgment by the

trial court which is correct, but for a different reason, will be affirmed on appeal as

there is no prejudice to the appellant.” See, e.g., Davis v. Widman, 184 Ohio

App.3d 705, 2009-Ohio-5430, 922 N.E.2d 272, ¶16, citations omitted.              After

reviewing the evidence in a light most favorable to Klaus as the nonmovant, we

find that the trial court did not err in granting United’s motion for summary

judgment.

       {¶33} “R.C. 2745.01, as expressed particularly in 2745.01(B), is to permit

recovery for employer intentional torts only when an employer acts with specific

intent to cause an injury, subject to subsections (C) and (D). Kaminski, 2010-

Ohio-1027, at ¶56 (emphasis added), citing Talik, 2008-Ohio-937, at ¶17; Stetter,

2010-Ohio-1029, at ¶26 (same). The facts of this case do not implicate R.C.

2745.01(C) or (D). Furthermore, there is nothing in the record demonstrating that



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United committed a tortious act with the specific intent to injure Klaus or that

United acted with deliberate intent to cause Klaus to suffer an injury for purposes

of R.C. 2745.01(A) and (B). Rather, the evidence demonstrates that Klaus’ injury

was the result of a miscommunication between United’s employees—an

unfortunate accident, but not an employer intentional tort as defined by the Ohio

Supreme Court in Kaminski and Stetter.

       {¶34} Klaus’ fourth, first, and second assignments of error are, therefore,

overruled.

                                IV.    Conclusion

       {¶35} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J., concurs.

SHAW, J., concurs in Judgment Only.

/jnc




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