         [Cite as Parker v. Ford Motor Co., 2019-Ohio-882.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




HEATHER A. PARKER, as                             :           APPEAL NO. C-180070
Administrator of the Estate of Austin                         TRIAL NO. A-1704993
Riley Parker and on behalf of the                 :
surviving spouse and child of the                                O P I N I O N.
deceased,                                         :

        Plaintiff-Appellant,                      :

  vs.                                             :

FORD MOTOR COMPANY,                               :

    Defendant-Appellee.                           :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 15, 2019



F. Harrison Green Co. LPA and F. Harrison Green, for Plaintiff-Appellant,

Frost Brown Todd LLC and Erin E. Orndorff, and Miller, Canfield, Paddock and
Stone, P.L.C., and Paul D. Hudson, for Defendant-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

       {¶1}    Plaintiff-appellant Heather A. Parker, as the administrator of the

estate of her deceased husband Austin Riley Parker and on behalf of the surviving

spouse and child of the deceased (“Parker”), has appealed from the trial court’s

judgment granting defendant-appellee Ford Motor Company’s (“Ford”) motion to

dismiss all claims asserted by Parker.

       {¶2}   In two assignments of error, Parker argues that the trial court’s

dismissal of her complaint was error. However, because Parker’s complaint failed to

allege that Ford had acted with deliberate intent to injure Austin, the workers’

compensation system governed Parker’s claims.             Therefore, we hold that the

complaint failed to state a claim upon which relief could be granted, and that the trial

court did not err in granting Ford’s motion to dismiss.

                        Factual and Procedural Background


       {¶3}   According to the allegations of the complaint, which the trial court was

required to take as true, Austin Parker, a full-time employee of Ford, collapsed while

on duty at work. Austin was transported to a hospital, where he later passed away. A

toxicology report indicated that Austin had marijuana and fentanyl in his system and

that his blood alcohol level was .08.

       {¶4}   Parker filed a wrongful-death and survival action against Ford. The

complaint alleged that Ford had a company policy prohibiting substance abuse, that

Ford had failed to implement the policy in the workplace, and that Ford’s failure to

implement the policy induced employees like Austin to possess and use drugs and

alcohol in the workplace.     The following claims were alleged in the complaint:



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wrongful death; a survival action; loss of consortium; negligence; negligent hiring,

training, and retention; and respondeat superior.

       {¶5}   Ford filed a Civ.R. 12(B)(6) motion to dismiss, arguing that it was

entitled to immunity under Ohio’s workers’ compensation system because the

complaint failed to allege an intentional tort. It further argued in the alternative that

Ford did not owe Austin a duty to prevent him from abusing drugs or alcohol.

       {¶6}   Following a hearing, the trial court granted Ford’s motion to dismiss.

The court stated, “I agree that the case is properly here on a 12(B)(6) motion due to

the affirmative defense that is available to Ford. And I agree with [defense counsel]

that these claims were barred by the employer immunity statute under workers’

comp [and] that Ford didn’t owe plaintiff a duty to prevent him from using the drugs

or alcohol.” The trial court entered an order of dismissal that stated “[i]t is ordered

that all claims asserted by Plaintiff against Defendant Ford Motor Company is [sic]

hereby dismissed without prejudice.”

                     Trial Court’s Entry is Final and Appealable


       {¶7}   This court only has jurisdiction to review final and appealable orders.

Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2505.03. Typically, a dismissal

without prejudice is not a final, appealable order. State ex rel. DeDonno v. Mason,

128 Ohio St.3d 412, 2011-Ohio-1445, 945 N.E.2d 511, ¶ 2. But an order granting a

motion to dismiss for failure to state a claim upon which relief can be granted, even if

dismissed without prejudice, may still be a final, appealable order if the claims

cannot be pled any differently to state a claim for relief. Hulsmeyer v. Hospice of

Southwest Ohio, Inc., 2013-Ohio-4147, 998 N.E.2d 517, ¶ 11 (1st Dist.).




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       {¶8}    Here, the trial court’s dismissal for failure to state a claim upon which

relief could be granted was based upon its determinations that Ford was entitled to

judgment because Parker’s complaint had failed to allege an intentional tort and that

Ford had not owed Austin a duty to prevent him from using drugs or alcohol.

Parker cannot plead her claims any differently to state a claim for relief. And in fact,

she does not so argue. Consequently, the trial court’s dismissal of her claims was a

ruling on the merits, notwithstanding the language in its entry stating that the claims

were dismissed without prejudice. See id. at ¶ 13. Because Parker cannot plead her

claims any differently to survive dismissal, the trial court’s entry is a final, appealable

order, and we have jurisdiction to entertain this appeal.

                                 No Error in Dismissal


       {¶9}    In two related assignments of error, Parker argues that the trial court

erred in granting Ford’s motion to dismiss, specifically contending that the trial court

erred in finding that she could prove no set of facts entitling her to relief, that her

claims were barred by employer immunity under the workers’ compensation system,

and that Ford owed no duty to Austin to prevent him from using drugs and alcohol in

the workplace.

       {¶10} A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon

which relief can be granted tests the sufficiency of the complaint.            Thomas v.

Othman, 2017-Ohio-8449, 99 N.E.3d 1189, ¶ 18 (1st Dist.). When ruling on a Civ.R.

12(B)(6) motion, the trial court is confined to the allegations in the complaint. Id. It

must accept the complaint’s factual allegations as true and must draw all reasonable

inferences in favor of the nonmoving party. Id. We review the trial court’s ruling on

a Civ.R. 12(B)(6) motion de novo. Id. at ¶ 19. “A complaint should not be dismissed



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for failure to state an actionable claim unless it appears beyond doubt from the

complaint that the plaintiff can prove no set of facts entitling him to recovery.” Id.

       {¶11} We first address Parker’s argument regarding employer immunity, as

it is dispositive of this appeal.

       {¶12} Pursuant to R.C. 4123.74 and Article II, Section 35, Ohio Constitution,

employers are conferred with immunity for a majority of workplace injuries, and an

employee’s exclusive remedy for such injury lies within the workers’ compensation

system. Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122,

¶ 7. The only exception is for an intentional tort. “But when an employee seeks

damages resulting from an act or omission committed by the employer with the

intent to injure, the claim arises outside of the employment relationship, and the

workers’ compensation system does not preempt the employee’s cause of action.” Id.

       {¶13} R.C. 2745.01 sets forth the requirements for an employer to be held

liable for an intentional tort outside of the workers’ compensation system. It states:

       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 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.

R.C. 2745.01(A). The statute provides that “substantially certain” means that the

employer has acted with the deliberate intent to cause injury to the employee. R.C.

2745.01(B). Courts have consistently interpreted R.C. 2745.01 as providing that,




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absent a deliberate intent to injure, an employee’s sole remedy for a workplace injury

lies within the workers’ compensation system. Hoyle at ¶ 11; Pastroumas v. UCL,

Inc., 1st Dist. Hamilton No. C-150352, 2016-Ohio-4674, ¶ 28.

       {¶14} To have stated a claim against Ford upon which relief could be

granted, Parker had to have alleged in her complaint that Ford acted with the

deliberate intent to injure Austin.      Parker’s complaint contained the following

general allegations:

       14. On information and belief, Defendant Ford Motor implements a

       code of conduct for its employees prohibiting the possession and use of

       substance abuse [sic] (hereinafter referred to as the “Policy”).

                                     *     *         *

       15. As a written policy, Defendant Ford Motor’s Policy is enforceable

       and carried more weight and force than an unwritten company policy.

       16. Though Defendant Ford Motor adopted such Policy, they failed to

       implement it in their workplace.          Even if steps were taken to

       implement the Policy, it was ineffective.

       17. Employees are not subjected to any checks or tests to ascertain if

       there are any violations of the Policy.

       18.   Defendant Ford Motor’s lack of supervision, and failure to

       implement the Policy induced employees like Mr. Parker to possess

       and use alcohol and drugs at [the] workplace.

       {¶15} The complaint contained further allegations regarding Ford’s actions

with respect to the individual claims raised. As to the wrongful-death claim, the

complaint alleged that:




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       22. Defendant Ford Motor through its agents, employees, managers,

       and supervisors, was negligent in taking measures to prevent

       substance abuse in the work place [sic].

       23. Defendant Ford Motor through its agents, employees, managers,

       and supervisors, failed to employ required personnel to implement its

       own Policy to prevent substance abuse in the work place [sic].

       24. Mr. Parker’s surviving spouse and son, along with his near and

       dear ones, suffered mental anguish, emotional distress, loss of his

       society and companionship, consortium, and pecuniary loss because of

       the wrongful death caused by Defendant Ford Motor’s negligent

       practices in the workplace.

(Emphasis added.)

       {¶16} As to the survival-action claim, the complaint stated that “[d]efendant

Ford Motor’s willful and negligent acts caused the death of Mr. Parker,” and that

“Mr. Parker was deprived of the opportunity to live a full and productive life with his

near and dear, including his wife and son, by the [sic] reason of the wrongful death

caused by Defendant Ford Motor’s negligent practices in the workplace.” (Emphasis

added.)

       {¶17} Parker’s negligence claim was supported with the following

allegations:

       36. Defendant Ford Motor’s willful and negligent conduct in improper

       implementation of its Policy induced Mr. Parker to have of [sic]

       possession [of] and use alcohol and marijuana on the work premises,

       leading to his untimely demise.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       37. Defendant Ford Motor failed to have periodical checks or other

       measures to deter employees from pursuing substance abuse in the

       work place [sic].

       38. Moreover, personnel authorized to implement the Policy were not

       effective enough to prevent substance abuse in the work place [sic].

       39. As a direct result of Defendant Ford Motor’s negligence, Plaintiff

       suffered conscious pain and suffering, incurred medical expenses,

       funeral expenses, and other damages.

(Emphasis added.)

       {¶18} In support of the claim for negligent hiring, training, and retention,

the complaint alleged that “[d]efendant Ford Motor’s negligence in hiring, training,

and retaining employees and maintaining efficient measures to prevent substance

abuse was the proximate cause of the Plaintiff’s injuries.” (Emphasis added.)

       {¶19} Last, as to the claim for respondeat superior, the complaint stated that

“[d]efendant Ford Motor is responsible for all of the negligent acts committed by its

agents, managers, employees, and supervisors within the scope of their

employment.” (Emphasis added.)

       {¶20} Accepting all allegations in the complaint as true, and making all

reasonable inferences in favor of Parker, we hold that the complaint fails to allege

that Ford deliberately intended to cause injury or death to Austin. At most, the

complaint alleges negligence and/or willful negligence.

       {¶21} Consequently, Parker’s complaint failed to state a claim upon which

relief could be granted, and the trial court did not err in granting Ford’s motion to




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dismiss. Parker’s assignments of error are overruled, and the judgment of the trial

court is affirmed.

                                                                      Judgment affirmed.



CROUSE and WINKLER, JJ., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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