2020 Ohio 2668
Ohio Ct. App.2020Background
- Michael Ramsey, a laborer and driver for Dash Tree Services (Dash), was injured when owner/operator David Pitz ran a stump grinder over Ramsey’s foot and leg. Pitz had earlier disabled the grinder’s audible warning beeper.
- Ramsey sued Dash and Pitz asserting (1) an employer intentional tort under R.C. 2745.01 and (2) a common-law co-employee intentional tort against Pitz (relying on Head and Fyffe).
- Defendants moved for summary judgment on the statutory employer-intentional-tort claims and related theories, but did not move on Ramsey’s common-law claim against Pitz.
- In opposition, Ramsey flagged that Pitz never carried the moving-party burden on the common-law claim and alternatively argued the claim’s merits; Pitz responded to the merits only in his reply brief.
- The trial court granted summary judgment in favor of Dash and Pitz on all claims. On appeal the court affirmed summary judgment for the statutory claims but reversed and remanded as to the common-law claim against Pitz because Pitz had not satisfied the initial Dresher burden required to obtain summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment could be entered for Pitz on Ramsey's common-law co-employee intentional-tort claim when Pitz did not move on that claim | Ramsey: summary judgment improper because Pitz failed to carry the movant's initial burden under Civ.R. 56/Dresher; thus burden never shifted to Ramsey | Pitz: merits response in reply argued the common-law claim fails on the facts (but did not move on that claim) | Court: Reverse and remand — movant must carry the initial Dresher burden; summary judgment was improper on that claim |
| Whether the trial court properly resolved the common-law claim on the merits | Ramsey: did not contest merits on appeal because primary argument is procedural; alternatively argued facts support survival | Pitz: merits-based argument raised only in reply | Court: The trial court should not have decided the merits after the movant failed to meet the initial burden; merits disposition was erroneous and remanded |
Key Cases Cited
- Head v. Reilly Painting & Contracting, Inc., 28 N.E.3d 126 (2015) (recognizes co-employee intentional-tort analysis under Fyffe)
- Fyffe v. Jeno's, Inc., 570 N.E.2d 1108 (Ohio 1991) (governs co-employee intentional tort standard)
- Dresher v. Burt, 662 N.E.2d 264 (Ohio 1996) (movant's initial burden and burden-shifting framework for summary judgment)
- AAAA Enters. v. River Place, 553 N.E.2d 597 (Ohio 1990) (summary judgment as a litigation shortcut; burden on moving party)