[Cite as Mal-Sarkar v. Cleveland State Univ., 2010-Ohio-5913.]

                                                        Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




SANCHITA MAL-SARKAR, Admx., et al.

       Plaintiffs

       v.

CLEVELAND STATE UNIVERSITY

       Defendant
       Case No. 2006-02331

Judge Joseph T. Clark

DECISION




        {¶ 1} Plaintiffs, Sanchita Mal-Sarkar, as the estate administratrix and next of kin
of Tarun Mal, and Tatini Mal-Sarkar, brought this wrongful death action alleging a claim
of employer intentional tort. The issues of liability and damages were bifurcated and the
case proceeded to trial on the issue of liability.
        {¶ 2} Tarun Mal, Ph.D., was employed by defendant, Cleveland State University
(CSU), as an associate professor in the department of biology.            Part of Dr. Mal’s
teaching responsibilities included conducting botany experiments with his students at a
laboratory located in CSU’s Basic Sciences Building. On August 15, 2005, Dr. Mal was
working with two students at the laboratory when he was electrocuted.
        {¶ 3} After one of the students had suggested that an experiment at the
greenhouse on the building’s fourth floor be moved to the laboratory, Dr. Mal and the
student began examining potential work spaces and decided to utilize a three-tiered
metal rack that was equipped with two florescent light fixtures suspended from the top
tier. The light fixtures were attached to the rack with copper wire. A by-pass adapter,
also known as a “cheater plug,” was attached to the three-prong light plug. The adapter
Case No. 2006-02331                               -2-                                     DECISION

plug allowed the three-prong light plug to be attached to a two-prong timer device that
controlled the lighting sequence; however, the adapter eliminated the ground path.
Unbeknownst to Dr. Mal, a ballast in one of the florescent lights was defective, causing
the metal rack to be energized. Dr. Mal was allegedly holding onto the metal rack,
crouching down between the rack and a steel work sink, and attempting to plug the
timer into a wall receptacle when he was electrocuted.                  Both of the students were
looking away from Dr. Mal at the time. It is undisputed that the light rack assembly was
not purchased, put into use, or authorized by CSU. Neither party could establish when
the rack, light fixtures, timer, and by-pass adapter were acquired or if they had ever
previously been put into use at the laboratory.
        {¶ 4} The parties stipulated that CSU was obligated to comply with all applicable
regulations of the Occupational Safety and Health Administration (OSHA) and the
Public Employees Risk Reduction Program (PERRP).1 Plaintiffs contend that CSU’s
deliberate failure both to comply with OSHA requirements for routine inspections of
electrical equipment and wiring in their laboratories and to provide electrical safety
training to its employees, including faculty, was the proximate cause of Dr. Mal’s death.
Plaintiffs also allege that the proximity of electrical equipment to sinks and water, which
were needed for botany experiments, the use of cheater plugs, and the lack of ground
fault circuit interrupters (GFCIs)2 contributed to the unsafe conditions in the laboratory.


        1
       In putting PERRP into effect, the Bureau of Workers’ Compensation was required to adopt all
OSHA standards. R.C. 4167.07 provides in pertinent part:

        “(A) The administrator of workers’ compensation, with the advice and consent of the bureau of
workers’ compensation board of directors, shall adopt rules that establish employment risk reduction
standards. * * * in adopting these rules, the administrator shall * * *:

        “(1) * * * adopt as a rule and an Ohio employment risk reduction standard every federal
occupational safety and health standard then adopted by the United States secretary of labor pursuant to
the ‘Occupational Safety and Health Act of 1970 * * *.’”
        2
         A GFCI is a safety device that detects fluctuations in current and breaks the circuit to prevent
electrocution.
Case No. 2006-02331                           -3-                                 DECISION

         {¶ 5} R.C. 2745.01, “Employer’s liability for intentional tort,” provides in pertinent
part:
         {¶ 6} “(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 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.
         {¶ 7} “(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.” (Emphasis added.)
         {¶ 8} At the time of trial, the constitutionality of R.C. 2745.01, which became
effective approximately four months before Dr. Mal’s death, was in question.
Consequently, the parties framed their arguments in terms of the common-law employer
intentional tort standard set forth in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115. In
that case, the Supreme Court of Ohio 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 paragraph
one of the syllabus. (Additional citations omitted.)
         {¶ 9} Subsequent to the trial, the Ohio Supreme Court issued decisions in two
companion cases wherein it upheld the constitutionality of R.C. 2745.01. See Kaminski
Case No. 2006-02331                                 -4-                                        DECISION

v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027; Stetter v. R.J.
Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029.3                                    The
statutory standard is more restrictive than that expressed in Fyffe. In Kaminski, the
court observed 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 * * *.” (Emphasis
added.) Id. at ¶56. The court went on to explain that “‘* * * it would be inappropriate for
the judiciary to presume the superiority of its policy preference and supplant the policy
choice of the legislature. For it is the legislature, and not the courts, to which the Ohio
Constitution commits the determination of the policy compromises necessary to balance
the obligations and rights of the employer and employee in the workers’ compensation
system.’” Id. at ¶75, quoting Bickers v. W. & S. Life Ins. Co., 116 Ohio St.3d 351, 2007-
Ohio-6751. Thus, the court concluded that, “[b]ecause R.C. 2745.01 is constitutional,
the standards contained in the statute govern employer intentional tort actions, and the
statutory standards apply rather than the common-law standards of Fyffe.” Id. at ¶103.
        {¶ 10} In support of their claim, plaintiffs submitted a set of documents
concerning the investigation of Dr. Mal’s death that was conducted by Glenn McGinley,
a PERRP Safety and Health Consultant, who worked in conjunction with a number of
CSU officials, and Anthony Medina, a Safety Violations Special Investigator from the
Bureau of Workers’ Compensation.                  (Plaintiffs’ Exhibits 5(A) and 5.)           The parties
stipulated that the Investigative Report, Investigative Findings, Violation Notice, and
Citations “reflect conditions in the lab at issue in the case, and at Cleveland State



        3
          In Kaminski, the court held that R.C. 2745.01, effective April 7, 2005, does not conflict with the
legislative authority granted to the General Assembly by Sections 34 and 35, Article II of the Ohio
Constitution. Id. at the syllabus.

        In Stetter, the court held that the statute “does not violate the Ohio Constitution’s trial-by-jury
provision (Section 5, Article I), the right-to-a-remedy and open-courts provisions (Section 16, Article I), the
due-course-of-law provision (Section 16, Article I), the equal protection provision (Section 2, Article I), or
University on August 1[5], 2005 prior to Dr. Mal’s death.” It was further stipulated that
“[CSU] admitted to the citations and violations contained in Exhibit 5 and the factual
basis for them.” (Plaintiffs’ Exhibit 5(A) and 5.)
        {¶ 11} In addition to the parties’ stipulations, plaintiffs presented the testimony of
three CSU employees: Harry Ratka, an electrical maintenance foreman; Christopher
Wilson, P.E., the Director of Utilities, and Paul Novak, the Director of Environmental
Health and Safety. Plaintiffs also offered the deposition testimony of Debroop Sarkar,
one of the students who was in the lab when Dr. Mal was electrocuted, and the expert
testimony of Richard Hayes, a journeyman electrician and president of Hayes
Environmental Services, Inc., a health and safety organization who had investigated
approximately 3,000 work-place fatalities.
        {¶ 12} The testimony of Ratka, Novak, and Wilson established that prior to Dr.
Mal’s death their respective departments did not provide electrical safety training for
faculty or other staff, nor did they conduct routine inspections of CSU’s 200 laboratories.
Wilson testified that Ratka and the electrical-shop staff reported to him, and that they
would get service requests from professors asking for repair work, but that they could
not enter the labs unless the professors granted access. He related that he had once
questioned his supervisors about the matter and was advised that “the labs are under
the jurisdiction of the academic side of the university, and that because of the nature of
things going on in the labs; research that could involve radiation, growing of germs,
those sort of things, that unless somebody knew what the hazards were in those rooms,
they shouldn’t be going in unescorted.”               (Transcript, Page 166, Lines 1-8.)              The
testimony was consistent that the lack of unlimited access to the labs interfered with the
staff’s ability to perform inspections.
        {¶ 13} Both Ratka and Wilson acknowledged that the proximity of water and
electricity in the botany labs could create a special hazard for the faculty and students.
Wilson testified that “where you are using electrical equipment [in] water or damp
conditions, good prudence and safety mandates the use of GFCIs.” (Transcript, Page
178, Lines 4-11.) Both Ratka and Wilson recognized that federal and state regulations
existed which required training and inspections to guard against potential hazards.

the separation-of-powers doctrine and is therefore constitutional on its face.” Id. at paragraph one of the
syllabus.
However, Wilson also testified that electrical safety training of students and professors
would be required only “if they were doing electrical work similar to what an electrician
was doing * * *.” (Transcript, Page 175, Lines 11-17.)
        {¶ 14} Novak, whose department                 was responsible for maintaining CSU’s
compliance with health and safety mandates, also testified that the OSHA regulation
that required safety training, “was very clear in listing certain occupations, blue collar
supervisors, electricians, and so forth * * * it says, and other people who reasonably can
be expected to face or be exposed to a risk of shock. And faculty members were not
expected to face an unreasonable amount of risk to electrical shock.” (Transcript, Page
147, Lines 19-24 and Page 148, Lines 1-5.)                   Ratka’s testimony confirmed that the
electrical department staff was “highly trained” in safety hazards but not other university
staff. (Transcript, Page 65, Lines 19-24.) Ratka also related that the use of cheater
plugs was prohibited by the National Electric Code (NEC) and that if he saw them in use
anywhere throughout the university, albeit rarely, he would confiscate them, and leave
his business card with a warning noted. According to Ratka, the 2005 NEC required
GFCIs in places such as restroom areas of noncommercial buildings, but not in areas
such as Dr. Mal’s botany lab, which was constructed in the 1970s.
        {¶ 15} Hayes, plaintiffs’ expert, testified that the fluorescent light and rack
assembly in Dr. Mal’s lab was unsafe and an obvious violation of the PERRP. He
stated that CSU was required to conduct inspections for such hazards, which could
cause physical harm or death. Hayes noted that, although GFCIs cost only $7 to $8,
none were installed in Dr. Mal’s botany lab. He testified that there was “no question” in
his mind that a GFCI would have saved Dr. Mal’s life. (Deposition, Page 43, Lines 11-
15.) It was his opinion that, under the circumstances presented in the botany lab,
including the metal rack being located close to a utility sink, a GFCI was required by
both OSHA regulations and the NEC. (Deposition, Page 45, Lines 16-25 and Page 46,
Lines 1-8.)     Hayes also opined that electrical safety training was required for CSU
employees, including those such as Dr. Mal.4 He further opined that because of the

        4
           One of the PERRP citations that defendant stipulated to was that “[a]n employee was not trained
in or familiar with the safety-related work practices * * * that pertained to his or her job assignment.” The
citation was based upon a finding that “* * * employees were not trained in the safe use of flexible cords,
ground by-pass adapters, outlet capacities, and the importance of equipment ground connections.”
(Plaintiffs’ Exhibits 5(A) and 5.)
hazardous conditions that existed in the lab “the event that occurred to Dr. Mal was
substantially certain to occur, it was substantially certain to result in his death * * *.”
(Deposition, Page 65, Lines 7-10.)
      {¶ 16} In response to plaintiffs’ evidence, defendant presented by deposition the
expert testimony of Ralph Dolence, a licensed electrician, forensic investigator, and
president of Dolence Electric Company. Dolence also investigated the incident shortly
after its occurrence at the request of the county coroner. He testified that “there was
nothing wrong with the electrical system or the wiring in the [botany lab] at CSU.”
(Deposition Page 31, Lines 13-16.) Dolence noted that there were no PERRP citations
concerning the lack of GFCIs or routine inspections of Dr. Mal’s laboratory. (Deposition,
Page 195, Lines 3-19.)
      {¶ 17} Dolence testified that he did not observe running water in the sink located
next to the metal light rack assembly, or in the laboratory when he was there.
(Deposition, Page 48, Lines 13-17.) According to Dolence, the laboratory would not be
defined as a wet area such that GFCIs would be required under the 2005 NEC.
(Deposition, Page 60, Lines 7-18.) He also recited at length the NEC designations of
areas that would require GFCIs, such as bathrooms, unfinished basements, kitchens,
laundries, and boathouses. (Deposition, Page 59, Lines 11-17.) Dolence was not of
the opinion that the presence of GFCIs in the laboratory would unquestionably have
saved Dr. Mal’s life. (Deposition, Page 62, Lines 2-21.)
      {¶ 18} With regard to inspections, Dolence testified that employers were required
to inspect hazardous areas within the workplace, that it is the employer’s duty to define
an area as hazardous, and it is the employer’s duty to establish a program. He stated
that if an area was not considered hazardous, an inspection once every five years
would comply with state regulations and that, in a defined hazardous area, an
inspection every three months may be necessary. (Deposition, Page 154, Lines 20-25
and Page 155, Lines 1-6.)
      {¶ 19} Dolence also opined that OSHA standards did not require that Dr. Mal be
trained in electrical safety. (Deposition, Page 95, Lines 14-19.) He stated that the
regulation applied to “employees facing higher than normal risk of electrical accidents”
including “blue-collar supervisors, electrical and electronic engineers * * * industrial
machine operators * * * mechanics and repairers * * *.” (Deposition, Page 81, Lines 15-
25.) In short, Dolence did not believe that any culpable action or omission on the part of
CSU caused Dr. Mal’s death.
       {¶ 20} Upon review of the testimony and other evidence presented, the court is
convinced that, although CSU may have violated certain PERRP and OSHA
regulations, such violations do not rise to the level of either tortious acts committed with
the intent to injure or actions committed with deliberate intent to cause injury for
purposes of R.C. 2745.01(A) and (B).
       {¶ 21} Further, even assuming that the lower standard of Fyffe were to be
applied, the court explained in that case:       “[t]o establish an intentional tort of an
employer, proof beyond that required to prove negligence and beyond that to prove
recklessness must be established. Where the employer acts despite his knowledge of
some risk, his conduct may be negligence. As the probability increases that particular
consequences may follow, then the employer’s conduct may be characterized as
recklessness. As the probability that the consequences will follow further increases,
and the employer knows that injuries to employees are certain or substantially certain to
result from the process, procedure or condition and he still proceeds, he is treated by
the law as if he had in fact desired to produce the result. However, the mere knowledge
and appreciation of a risk — something short of substantial certainty — is not intent.”
Fyffe, supra, at paragraph two of the syllabus, citing Van Fossen v. Babcock & Wilcox
Co. (1988), 36 Ohio St.3d 100, at paragraph six of the syllabus.
       {¶ 22} The key to the common law standard was knowledge on the part of the
employer and a conscious decision to proceed despite a substantial certainty that harm
to employees would result. In this case, the parties agree that the metal light-rack
assembly was not purchased, put into use, or authorized by CSU, and that it could not
be established when the assembly was acquired, or if it had been put into use at the lab
prior to Dr. Mal’s death. There is no evidence that CSU knew or could predict that
faculty, other staff, or students, might opt to bring in or utilize equipment such as that
which caused Dr. Mal’s death. Even if CSU had provided electrical-safety training, or
had conducted routine inspections, there is no way of determining in this case whether
inspectors would both have been on-site at a time when the unauthorized equipment
had been put into use and have been able to warn employees against its use prior to
Dr. Mal’s death. Similarly, there is no way that any failure to train employees such as
Dr. Mal against the use of cheater plugs or the importance of GFCIs could give rise to
substantial certainty of injury, inasmuch as the presence of the metal rack assembly
was not known and could not reasonably have been anticipated.
       {¶ 23} In short, the court finds for the foregoing reasons that plaintiffs failed to
prove their employer intentional tort claim under either the statutory or common law
standard.5 Accordingly, judgment shall be rendered in favor of defendant.




                                                    Court of Claims of Ohio
                                                                                The Ohio Judicial Center
                                                                        65 South Front Street, Third Floor
                                                                                   Columbus, OH 43215
                                                                         614.387.9800 or 1.800.824.8263
                                                                                    www.cco.state.oh.us




SANCHITA MAL-SARKAR, Admx., et al.

       Plaintiffs

       v.

CLEVELAND STATE UNIVERSITY

       Defendant
       Case No. 2006-02331

Judge Joseph T. Clark

JUDGMENT ENTRY




       This case was tried to the court on the issue of liability.                   The court has
considered the evidence and, for the reasons set forth in the decision filed concurrently
herewith, judgment is rendered in favor of defendant. Court costs are assessed against



       5
         Based upon the above, the parties cross-motions for dismissal pursuant to Civ. R. 41(B)(2) at
the close of the proceedings are DENIED as moot.
plaintiffs. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.




                                                  _____________________________________
                                                  JOSEPH T. CLARK
                                                  Judge

cc:


Eric A. Walker                                        Jaime M. Bouvier
Randall W. Knutti                                     Subodh Chandra
Assistant Attorneys General                           1265 West 6th Street, Suite 400
150 East Gay Street, 18th Floor                       Cleveland, Ohio 44113-1326
Columbus, Ohio 43215-3130

W. C. Bashein
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113-2216
LH/cmd/Filed November 17, 2010/To S.C. reporter December 1, 2010
