Breitenbach v. Double Z Constr. Co., L.L.C.
63 N.E.3d 498
Ohio Ct. App.2016Background
- Micah Montgomery, a Double Z Construction laborer, was fatally injured when a 60-foot I-beam collapsed into the aerial lift basket he occupied during a bridge demolition on April 12, 2013.
- Montgomery had cut two rigging holes unevenly in the beam, producing unequal sling leg angles; the sling on his side slipped from the crane hook and the lift fell.
- Plaintiffs (estate and minor children) sued Double Z in 2014 alleging an employer intentional tort, claiming Double Z required work without required safety guards and knowingly exposed employees to hazards.
- Double Z moved for summary judgment arguing absence of deliberate intent to injure; trial court granted summary judgment for Double Z, finding no evidence the employer deliberately intended to injure.
- On appeal, plaintiffs argued (1) R.C. §2745.01(C) presumption applied because a clevis shackle (rigging device) was an "equipment safety guard" deliberately removed or made unavailable, and (2) independent evidence showed Double Z acted with deliberate intent or substantial certainty of harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clevis shackle is an "equipment safety guard" under R.C. §2745.01(C) | Clevis is safety device required when sling angle > 90°, so its absence triggers statutory presumption of intent | Clevis is rigging equipment, not a device "designed to shield the operator" from equipment danger; therefore not an "equipment safety guard" | Clevis is not an "equipment safety guard," so §2745.01(C) presumption does not apply |
| Whether employer ‘‘deliberately removed’’ or made guard unavailable under §2745.01(C) | Failure to supply on-site clevis (45-min away) made guard unavailable and constituted deliberate removal | Even if relevant, clevis was available at company office and not deliberately removed or rendered unavailable | No deliberate removal; 45-minute retrieval does not establish unavailability or deliberate removal |
| Whether evidence shows employer acted with deliberate intent or belief injury was substantially certain (R.C. §2745.01(A)/(B)) | Foremen knew rigging was improper, saw lift in fall zone, failed to stop operations, and OSHA cited safety violations — establishing substantial certainty or specific intent to injure | Evidence shows negligence or recklessness at most; no proof that management specifically intended to injure or believed injury was substantially certain | Summary judgment affirmed: evidence insufficient to prove specific or deliberate intent to injure; at most reckless/negligent conduct |
| Whether post-accident OSHA citations establish deliberate intent/substantial certainty | OSHA citations show employer knew and were substantially certain harm would occur | OSHA violations may show negligence but do not alone establish intentional tort intent | OSHA citations do not, by themselves, demonstrate intent to injure; they are insufficient to create triable issue of deliberate intent |
Key Cases Cited
- Jones v. VIP Dev. Co., 15 Ohio St.3d 90 (defines intentional tort requiring specific intent to injure)
- Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115 (employer treated as desiring injury when it proceeds despite knowledge harm is substantially certain)
- Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491 (R.C. 2745.01 requires deliberate intent; presumption applies only on deliberate removal of safety guard)
- Kaminski v. Metal Wire Prods. Co., 125 Ohio St.3d 250 (R.C. 2745.01 restricts employer intentional-tort recovery to specific intent situations)
- Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197 (explains R.C. 2745.01’s convergence of "substantially certain" and "deliberate intent")
- Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199 (adopts common-sense definition of "equipment safety guard")
- Pixley v. Pro-Pak Indus., 142 Ohio St.3d 203 (declines to address broader scope of "equipment safety guard" where intentional tort not established)