Wineberry v. N. Star Painting Co.
978 N.E.2d 221
Ohio Ct. App.2012Background
- Wineberry, a painter/sandblaster, was injured on July 24, 2006, on the 13th Street Bridge in Ashland, Kentucky while working for North Star on a project hired by the Kentucky DOT.
- Wineberry filed an employer intentional tort action on July 21, 2008 arising from the incident; North Star answered July 1, 2009 and discovery followed.
- North Star moved for summary judgment in August 2010, arguing R.C. 2745.01 applies and there is no evidence of intent to injure; Wineberry opposed in September 2010.
- The magistrate found no direct intent under R.C. 2745.01(A) and held R.C. 2745.01(C) did not apply because there was no evidence North Star removed a safety guard.
- Wineberry argued the failure to install guardrails around the perches constitutes deliberate removal under R.C. 2745.01(C); North Star argued the trial court was correct.
- The Seventh District affirmed summary judgment, holding a broader interpretation of deliberate removal is appropriate, but concluding there was no genuine issue of material fact that North Star intended to injure under either division (A) or (C).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deliberate removal under R.C. 2745.01(C) includes failure to install safety guards. | Wineberry: omission to install guards can be deliberate removal. | North Star: only actual removal of an installed guard triggers §2745.01(C). | Yes, broader interpretation; but no genuine issue of fact on intent under (A) or (C). |
| Whether North Star intended to injure under §2745.01(A) or (C). | Wineberry asserts intent to injure from lack of safety equipment and performance failures. | North Star maintains no evidence of intent; injuries resulted from counterfactual actions. | No genuine issue of material fact of intent under (A) or (C). |
| Whether summary judgment was proper given the factual disputes about the accident mechanics and safety practices. | Wineberry argues material facts support presumptions of intentional conduct. | North Star contends record lacks proof of intent. | Summary judgment appropriate; no evidence of deliberate intent under either provision. |
Key Cases Cited
- McKinney v. CSP of Ohio, L.L.C., 2011-Ohio-3116 (6th Dist. No. WD-10-070, 2011) (presumption of deliberate removal when unsafe conditions are present)
- Fickle v. Conversion Technologies Intl., Inc., 2011-Ohio-2960 (6th Dist. No. WM-10-016, 2011) (jog control not an equipment safety guard; §2745.01(C) not met)
- Hewitt v. L.E. Meyers Co., 2011-Ohio-5413 (8th Dist. No. 96138, 2011) (employer failed to rebut presumption under §2745.01(C))
- Forwerck v. Principle Business Ents., Inc., 2011-Ohio-489 (6th Dist. No. WD-10-040, 2011) (deliberate means careful decision; removal includes bypassing or disabling guards)