Smith v. Ray Esser & Sons, Inc.
2011 Ohio 1529
Ohio Ct. App.2011Background
- Esser is a commercial plumbing contractor; Smith begins work June 30, 2008 and is assigned to repair a leaking fire hydrant under foreman Clouser.
- Esser digs a trench to access the leak; on July 2, 2008 the trench remains muddy and walls are wet due to rain and the leak.
- Smith is instructed to chip away at a thrust block to access piping; as debris is removed, the trench fills with water and the joint leaks.
- Smith becomes trapped as water rises, is submerged, and sustains a torn tendon and six finger fractures; Clouser claims he pulled Smith out, but Smith testifies he climbed out himself.
- In March 2009, Smith sues for workplace intentional tort; Esser moves for summary judgment arguing standards under Fyffe, and later cites Kaminski and Stetter after those decisions.
- The trial court grants summary judgment the day after Esser’s reply brief; the court’s ruling is later reversed on appeal for relying on grounds not raised in the motion and for procedure defects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by granting summary judgment on grounds not raised in the motion | Smith argues Esser waived those grounds by not raising them initially | Esser contends the statutory standard governs, with reliance on Kaminski/Stetter and R.C. 2745.01 | Reversed; judgment granted on improper grounds; remanded |
| Whether genuine issues of material fact exist on the common law workplace intentional tort claim | Smith asserts factual disputes preclude summary judgment | Esser asserts no genuine issues under the applicable standard | Moot due to reversal on Issue I |
Key Cases Cited
- Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115 (Ohio Supreme Court 1991) (Ohio standard for employer intentional tort prior to statutory revision)
- Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250 (Ohio Supreme Court 2010) (upheld constitutionality of R.C. 2745.01)
- Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280 (Ohio Supreme Court 2010) (same constitutional holding on the statutory standard)
- Mitseff v. Wheeler, 38 Ohio St.3d 112 (Ohio Supreme Court 1988) (summary judgment burden shifting; need specific basis in motion)
- Temple v. Wean United, Inc., 50 Ohio St.2d 317 (Ohio Supreme Court 1977) (summary judgment standard and judgments as a matter of law)