## Facts

- Mar-Bal, Inc. operated a plastics manufacturing plant.
- To clean equipment at the plant, Mar-Bal had employees use methylene chloride, a solvent.
- At high doses or with significant exposure, methylene chloride could cause serious health problems when inhaled or absorbed through the skin.
- Evidence at trial showed Mar-Bal knew the solvent posed health risks and that protective equipment and safety steps were needed to reduce exposure.
- Despite that knowledge, Mar-Bal allegedly had employees use methylene chloride without proper protective equipment.
- Evidence also indicated Mar-Bal permitted, and at times directed, employees to wash their hands with the solvent.
- Several employees who used the solvent were members of the Ailiff family.
- After experiencing health problems they attributed to solvent exposure, the Ailiff employees filed an employer intentional-tort action against Mar-Bal (seeking recovery outside workers’ compensation).
- At the close of the plaintiffs’ evidence, the trial court granted Mar-Bal’s motion for a directed verdict.
- The Ailiff employees appealed the directed verdict to the Eleventh District Court of Appeals.

## Issues

1. Whether, viewing the evidence and reasonable inferences most strongly in favor of the employees, the trial court erred by granting a directed verdict because reasonable jurors could find an employer intentional tort based on “certain or substantially certain” injury from continued methylene chloride exposure.

## Decision

- The court of appeals reversed the directed verdict entered for Mar-Bal.
- The court remanded for further proceedings because the employees presented evidence from which reasonable jurors could find that Mar-Bal knowingly subjected them to a dangerous condition with injury as a certain or substantially certain result.

## Legal Principles

- Ohio recognizes an employer intentional tort when an employer knows that an employee’s injury is certain or substantially certain to occur from a work condition or practice and, despite that knowledge, the employer still requires the employee to continue the work.
- The employee need not show the employer acted with a purpose to injure; proof may rest on evidence that the employer knew the danger and knew harm was certain or substantially certain.
- Evidence bearing on “substantial certainty” may include the employer’s knowledge of a chemical’s hazards, knowledge that safety measures are necessary, failure to provide required protective equipment or procedures, and continuation of the hazardous practice.
- On a motion for directed verdict, the court must construe the evidence most strongly in favor of the nonmoving party; if reasonable minds could reach different conclusions on the intentional-tort elements, the claim must go to the jury.

## Conclusion

In *Ailiff v. Mar-Bal, Inc.*, the Eleventh District reversed a directed verdict for the employer because the Ailiff employees offered evidence that Mar-Bal knew methylene chloride posed serious risks, knew protective measures were needed, and nonetheless continued solvent-cleaning practices without proper protection (including alleged hand-washing in the solvent), allowing reasonable jurors to find an employer intentional tort under Ohio’s substantial-certainty standard.


Ailiff v. Mar-Bal, Inc., 575 N.E.2d 228 (1990)