When workers’ compensation isn’t enough, Ohio Revised Code § 2745.01 offers a narrow — but critical — path to justice for workers injured by deliberate employer misconduct.
| TL;DR: In Ohio, workers’ compensation is generally the exclusive remedy for workplace injuries. The narrow statutory exception is an Employer Intentional Tort (EIT) claim under Ohio Revised Code § 2745.01, which requires proof that the employer acted with deliberate intent to injure — or falls within one of two statutory presumptions: deliberate removal of an equipment safety guard, or deliberate misrepresentation of a toxic or hazardous substance. These are among the most difficult injury claims to prove in Ohio, but for catastrophically injured workers, they may be the only path to full compensation. |
What is an Employer Intentional Tort in Ohio?
An Employer Intentional Tort, often called an “EIT” claim, is a civil lawsuit brought by an injured employee (or the family of a deceased employee) against their employer for damages arising from a workplace injury. Unlike a workers’ compensation claim, which is a no-fault administrative benefit, an EIT claim is a full civil lawsuit filed in the Ohio Court of Common Pleas.
EIT claims exist because Ohio law recognizes that some workplace injuries result not from accidents or ordinary negligence, but from the deliberate misconduct of an employer. In those rare cases, the injured worker may recover damages that go well beyond what the workers’ compensation system can offer — including pain and suffering, loss of enjoyment of life, and in some cases punitive damages.
The law governing these claims is Ohio Revised Code § 2745.01, enacted in 2005 and upheld as constitutional by the Ohio Supreme Court in 2010. The statute is narrow by design. As one Ohio Supreme Court Justice observed, the law “in reality defines the employer intentional tort cause of action into oblivion” — yet the cause of action still exists, and at Plevin & Gallucci, we continue to pursue it successfully for workers catastrophically injured by deliberate employer misconduct.
| KEY TAKEAWAY: An Ohio EIT claim is a civil lawsuit against an employer that exists alongside — not instead of — a workers’ compensation claim. It requires proof of deliberate employer intent and is governed exclusively by ORC § 2745.01. |
Why Workers’ Comp Is Usually Your Only Option
Ohio’s workers’ compensation system is rooted in Article II, Section 35 of the Ohio Constitution, ratified in 1912. That provision established a fundamental bargain: Workers give up the right to sue their employers in exchange for guaranteed, no-fault benefits when they’re injured on the job. Employers, in turn, get predictability and protection from unlimited tort liability.
This bargain is known as the exclusive remedy doctrine. For the vast majority of workplace injuries in Ohio — such as cuts, strains, falls, repetitive stress injuries, vehicle accidents while driving for work — workers’ compensation is the only claim available, regardless of who was at fault.
An EIT claim under ORC § 2745.01 is one of only a handful of exceptions. Other narrow exceptions include third-party liability claims (against someone other than the employer), dual-capacity claims (where the employer acted in a non-employer role, such as manufacturer of a defective product), and claims against coworkers for their own intentional acts. Plevin & Gallucci regularly evaluates each of these theories when industrial workplace accidents occur.
The Two Statutory Pathways Under ORC § 2745.01
The statute itself is short. It is also, in practice, the single most important provision in Ohio workplace injury law.
| OHIO REVISED CODER.C. § 2745.01(A)–(C) (A) In an action brought against an employer by an employee … 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. (C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result. |
Read closely, the statute creates two practical pathways to prove an employer intentional tort:
Pathway One: Direct Proof of Deliberate Intent
The plaintiff can prove that the employer acted with the specific, deliberate intent to cause injury. This is an extraordinarily high standard. The Ohio Supreme Court confirmed in Houdek v. ThyssenKrupp Materials N.A., Inc. — a case in which attorney David R. Grant served —that the plaintiff must show the employer acted “with deliberate and specific intent to injure.” Knowledge that injury was likely, even highly likely, is not enough. Knowledge that injury was “substantially certain” to occur is not enough either — not in the ordinary sense of those words.
Pathway Two: The Rebuttable Presumption
Because direct evidence of an employer’s intent to injure is rarely available, the statute provides two situations in which intent is presumed: deliberate removal of an equipment safety guard, or deliberate misrepresentation of a toxic or hazardous substance. If an injured worker can prove one of these predicate acts caused the injury, the burden shifts to the employer to rebut the presumption.
For most EIT cases filed in Ohio today, the rebuttable presumption under § 2745.01(C) is the only realistic pathway to recovery.
The Equipment Safety Guard Presumption
The first and most commonly invoked presumption applies when an employer deliberately removes an equipment safety guard and an injury results. To succeed, the injured worker must prove three elements:
- The device qualified as an “equipment safety guard.” Under Ohio Supreme Court precedent, this means a device designed to shield the operator from exposure to or injury by a dangerous aspect of a piece of equipment.
- The employer deliberately removed the guard. “Deliberate removal” means the employer made a conscious decision to lift, push aside, take off, or otherwise eliminate the guard.
- The injury resulted directly from the removal. There must be a proximate causal link between the absent guard and the worker’s injury.
| GOVERNING CASE: Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199 (2012) The Ohio Supreme Court defined “equipment safety guard” narrowly as a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment. Personal protective equipment such as rubber gloves and sleeves does not qualify. An employer’s failure to require PPE is not “deliberate removal.” |
The Ohio Supreme Court’s decision in Hewitt was significant. Frank L. Gallucci III, who tried the Hewitt case at the trial level and argued it through the Ohio appellate system, noted that the decision closed off a category of claims that some trial courts and appellate panels had been willing to recognize — namely, claims based on the absence of personal protective equipment. After Hewitt, the safety guard presumption is largely limited to guards built into or for machinery and equipment: press guards, point-of-operation guards, barrier guards, interlocks, blade guards on saws, light curtains, point of access guards, and similar devices.
The important news for injured workers is that where a guard was deliberately removed — because it slowed production, because a supervisor wanted faster output, because it was considered inconvenient — Ohio law still provides a powerful presumption of intent to injure. These cases remain very much alive, and Plevin & Gallucci has extensive experience litigating them.
The Toxic Substance Misrepresentation Presumption
The second statutory presumption applies when an employer deliberately misrepresents a toxic or hazardous substance, and an occupational disease or condition results. Common scenarios include:
- An employer concealing the presence of silica dust in stone fabrication or foundry operations, leading to silicosis;
- An employer hiding known asbestos exposure, leading to mesothelioma or asbestosis;
- An employer misrepresenting the presence of benzene, lead, or heavy metals in an industrial process, leading to cancer or chronic disease;
- An employer falsifying Safety Data Sheets (SDS) or removing warning labels from hazardous chemicals.
Crucially, “misrepresentation” under the statute can include affirmative lies (telling workers a substance is safe when the employer knows it isn’t) as well as material omissions where the employer has a duty to disclose. The plaintiff must typically prove that the employer knew the substance was hazardous, knew workers were being exposed, and knowingly concealed or distorted the truth.
This pathway is particularly relevant to the rising number of silicosis cases emerging from Ohio’s stone fabrication industry, where engineered quartz has been linked to severe and progressive lung disease.
How Ohio Courts Have Narrowed These Claims
Four Ohio Supreme Court decisions define the modern EIT landscape. Any injured worker considering an EIT claim — and any attorney evaluating one — must understand all four.
| DECISION 1 — CONSTITUTIONALITY Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250 (2010) The Ohio Supreme Court upheld ORC § 2745.01 as constitutional, rejecting arguments that it violated Article II, Sections 34 or 35 of the Ohio Constitution. The Court confirmed that the General Assembly had the power to restrict — though not eliminate — the common-law cause of action. |
| DECISION 2 — BROADER CONSTITUTIONAL CHALLENGES Stetter v. R.J. Corman Derailment Services, LLC, 125 Ohio St.3d 280 (2010) Decided the same day as Kaminski, Stetter rejected eight additional constitutional challenges, including arguments based on the right to trial by jury, right to a remedy, open courts, due process, and separation of powers. |
| DECISION 3 — INTENT STANDARD | HANDLED BY OUR FIRM Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491 (2012) The Court held that to recover under ORC § 2745.01, a plaintiff must prove the employer acted with deliberate and specific intent to injure. Placing an employee in a potentially dangerous situation — even knowingly — is not enough without evidence of actual intent to cause harm. |
| DECISION 4 — SAFETY GUARD DEFINITION | HANDLED BY OUR FIRM Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199 (2012) The Court narrowly defined “equipment safety guard” and “deliberate removal,” holding that personal protective equipment (gloves, sleeves, respirators worn by the employee) does not qualify as a safety guard under ORC § 2745.01(C). |
| PRACTICAL EFFECT Since 2012, successful Ohio EIT claims generally fall into two patterns: a machine guard that was deliberately disabled or removed, or a toxic substance the employer knowingly concealed. Ordinary negligence — even egregious negligence — does not meet the statutory standard. |
Can You File Workers’ Comp and an EIT Claim Together?
Yes — and in almost every case where an EIT claim is viable, you should. Filing for workers’ compensation does not bar you from also pursuing an intentional tort lawsuit. The two claims proceed in entirely different forums, on different timelines, and seek different categories of relief.
| Feature | Workers’ Compensation | Employer Intentional Tort |
|---|---|---|
| Fault required? | No — no-fault system | Yes — deliberate intent |
| Forum | Ohio BWC / Industrial Commission | Court of Common Pleas |
| Filing deadline | One year from injury | Two years (personal injury) |
| Damages available | Medical + partial wages | Full economic + non-economic + possible punitive |
| Pain and suffering | Not available | Available |
| Attorney fees | Contingency on disputed benefits | Contingency |
| Likelihood of recovery | Most legitimate claims approved | Low — narrow statutory standard |
Because workers’ compensation benefits may be subject to subrogation if an EIT lawsuit succeeds, coordinating the two claims requires careful strategy. An attorney experienced in both systems — like the team at Plevin & Gallucci — can help injured workers avoid costly procedural mistakes and preserve all available avenues of recovery.
Filing a VSSR (Violation of Specific Safety Requirement)
A Violation of Specific Safety Requirement claim, or VSSR, is a procedural component of the Ohio workers’ compensation system that exists alongside an Employer Intentional Tort claim — and in nearly every viable EIT matter, a VSSR claim should be considered in parallel.
A VSSR is a separate award added on top of standard workers’ compensation benefits when an injured worker can prove the employer violated a specific safety regulation contained in the Ohio Administrative Code, and that violation caused or contributed to the injury. The Ohio Industrial Commission, which adjudicates these claims, can award an additional 15 percent to 50 percent of the worker’s maximum weekly compensation rate, paid on top of all other workers’ comp benefits the injured worker is already receiving. For workers facing months or years of disability, this can amount to tens of thousands of dollars of additional compensation.
What You Must Prove
To prevail on a VSSR claim, an injured worker must establish three elements:
- A specific safety requirement existed in the Ohio Administrative Code that applied to the employer at the time of the injury;
- The employer failed to comply with that requirement when the injury occurred;
- The employer’s non-compliance directly caused or contributed to the injury, illness, or death.
Most VSSR awards are based on the safety codes in Ohio Administrative Code Chapter 4123:1, which is divided into nine categories by industry — covering everything from construction and manufacturing to specific machinery, electrical work, and toxic substance handling. The injured worker bears the burden of proof on every element, and Ohio courts have held that all reasonable doubts in interpreting a specific safety requirement are resolved in favor of the employer. Proof of an OSHA violation alone is not sufficient — the violation must be of a state-promulgated specific safety requirement under the OAC.
How a VSSR Claim Works Procedurally
To prevail on a VSSR claim, an injured worker must prove three elements:
- A specific safety requirement existed in the Ohio Administrative Code that applied to the employer at the time of the injury;
- The employer failed to comply with that requirement when the injury occurred;
- The employer’s non-compliance directly caused or contributed to the injury, illness, or death.
The injured worker initiates the claim by filing Form IC-8/9 (Application for Additional Award for Violation of Specific Safety Requirement) with the Industrial Commission. The Bureau of Workers’ Compensation’s Safety Violations Investigation Unit (SVIU) then conducts an independent investigation that may include site inspections, witness interviews, and document discovery. After the investigation report is filed, both parties have 30 days to submit additional evidence before a pre-hearing conference is scheduled. If no settlement is reached, the matter proceeds to a merit hearing before the Industrial Commission, which issues a binding decision subject to appeal.
Damages Available in an Ohio EIT Case
Unlike workers’ compensation, which pays only medical bills and a portion of lost wages, a successful employer intentional tort verdict can include the full range of tort damages recognized under Ohio law:
- Economic damages cover medical expenses (past and future), lost wages, loss of earning capacity, and costs of ongoing care. These damages are generally not capped.
- Non-economic damages cover pain and suffering, emotional distress, loss of consortium, and loss of enjoyment of life. Under ORC § 2315.18, non-economic damages in most Ohio tort cases are capped at the greater of $250,000 or three times economic damages, up to a maximum of $350,000 per plaintiff. However, the statute includes a catastrophic injury exception: the cap does not apply to cases involving permanent and substantial physical deformity, loss of use of a limb or bodily organ, or permanent physical functional injury that prevents the plaintiff from independently caring for themselves.
- Punitive damages may be available in truly egregious cases under ORC § 2315.21, subject to the statutory cap of two times compensatory damages. Because the EIT statute already requires deliberate intent to injure, punitive damages are conceptually available in these cases — though they must still be pleaded and proved by clear and convincing evidence.
Statute of Limitations
In Ohio, an employer intentional tort claim must generally be filed within two years of the date of injury under ORC § 2305.10, the statute governing bodily injury claims. For wrongful death EIT claims, the deadline is also two years, running from the date of death. However, in particular instances where the claim is based on conduct such as assault or battery, a one-year statute of limitations may apply.
Occupational disease claims based on toxic substance misrepresentation may benefit from the discovery rule, which can delay the start of the limitations period until the worker knew or reasonably should have known of both the injury and its cause. This rule is particularly important in silicosis, asbestos, and other latent-disease cases where decades may pass between exposure and diagnosis.
Missing the EIT deadline is catastrophic — the claim is gone, regardless of how strong the underlying facts are. And because the workers’ compensation deadline is only one year under ORC § 4123.84, it is possible to miss the shorter workers’ comp deadline even while the EIT clock is still running. For this reason, prompt consultation with an attorney is essential as soon as an injury occurs.
When to Contact an Attorney
Most workplace injuries in Ohio are resolved through the workers’ compensation system alone. Plevin & Gallucci advises all injured workers to consult with an experienced attorney from the outset, even before a workers’ comp claim is filed. This matters because the workers’ compensation deadline is only one year from the date of injury, which is shorter than the two-year deadline for EIT claims. To preserve all potential avenues of recovery, it’s important to seek legal guidance promptly.
An EIT claim is only appropriate in specific, serious circumstances. You should contact an experienced workplace injury attorney immediately if:
- A safety guard was missing or disabled. If a machine guard, interlock, or similar device had been removed or bypassed at the time of your injury, you may have an EIT claim.
- You were exposed to a toxic substance you weren’t warned about, especially if you were later diagnosed with an occupational disease like silicosis, asbestosis, or a chemical-related cancer.
- Your injury is permanent or catastrophic. Amputations, severe burns, traumatic brain injuries, paralysis, and wrongful death cases warrant full legal evaluation — not just a workers’ comp claim.
- Your workers’ compensation claim was denied. A denied claim may signal that your employer is contesting the injury — and may also indicate potential grounds for a separate lawsuit.
- A third party may share fault. Equipment manufacturers, contractors, and property owners can sometimes be sued in addition to — or instead of — your employer.
Plevin & Gallucci has represented injured Ohio workers since 1971. Our attorneys have secured more than one billion dollars in recoveries for clients, including major verdicts and settlements in catastrophic workplace injury cases. We serve workers across Ohio from offices in Cleveland, Columbus, Waverly, Canfield, and Dayton.
We work on contingency — no fee unless we recover for you — and consultations are free and confidential.
Ohio Employer Intentional Tort Claims
FREQUENTLY ASKED QUESTIONS
Q. Can I sue my employer in Ohio for a workplace injury?
In most cases, Ohio workers’ compensation is your exclusive remedy for a workplace injury. However, under Ohio Revised Code § 2745.01, you may bring a separate Employer Intentional Tort (EIT) lawsuit if your employer acted with deliberate intent to injure you, deliberately removed an equipment safety guard, or deliberately misrepresented a toxic or hazardous substance. These claims are difficult to win but can result in significantly greater compensation than workers’ comp alone.
Q. What does “substantially certain” mean under Ohio’s intentional tort statute?
Under ORC § 2745.01(B), “substantially certain” is defined narrowly as the employer acting with deliberate intent to cause an employee to suffer an injury, disease, condition, or death. The Ohio Supreme Court confirmed this interpretation in Kaminski v. Metal & Wire Products Co. (2010) and reinforced it in Houdek v. ThyssenKrupp Materials N.A., Inc. (2012). In practical terms, the statute requires proof of actual intent to injure — not merely knowledge that injury was likely.
Q. Can I file both a workers’ comp claim and an intentional tort lawsuit in Ohio?
Yes. Filing for workers’ compensation benefits does not bar you from also pursuing an employer intentional tort claim. The two claims run in parallel in different forums — workers’ comp through the Ohio Bureau of Workers’ Compensation, and an EIT lawsuit in the Court of Common Pleas. Coordination between the two claims requires careful strategy by a skilled and experienced legal team to maximize your overall recovery and avoid subrogation issues.
Q. What qualifies as an equipment safety guard under Ohio law?
Under the Ohio Supreme Court’s decision in Hewitt v. L.E. Myers Co. (2012), an “equipment safety guard” is a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment. Examples include press guards, point-of-operation guards, blade guards, and machine interlocks. Personal protective equipment such as gloves, sleeves, and helmets does not qualify as a safety guard for purposes of the statutory presumption.
Q. How long do I have to file an employer intentional tort claim in Ohio?
The general statute of limitations is two years from the date of injury under ORC § 2305.10. Wrongful death EIT claims also have a two-year deadline, running from the date of death. For occupational disease claims, the discovery rule may extend the period. Note that workers’ compensation has a separate and shorter one-year filing deadline, so prompt legal consultation is critical.
Q. What damages are available in an Ohio employer intentional tort case?
A successful plaintiff may recover economic damages (medical expenses, lost wages, loss of earning capacity), non-economic damages (pain and suffering, emotional distress), and in some cases punitive damages. Non-economic damages may be subject to statutory caps under ORC § 2315.18, but the caps do not apply to catastrophic injuries involving permanent disfigurement, loss of use of a limb or organ, or permanent functional impairment preventing self-care.
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