JOSEPH BEARY v. LARRY MURPHY DUMP TRUCK SERVICE, INC.
Case No. 2013CA00240
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 29, 2014
[Cite as Beary v. Larry Murphy Dump Truck Serv., Inc., 2014-Ohio-4333.]
Hon. W. Scott Gwin, P.J.; Hon. Sheila G. Farmer, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010CV01412; JUDGMENT: Affirmed
For Plaintiff-Appellant
DANIEL SUCHER
Young Sucher PLL
1001 Jaycox Road
Avon, OH 44011
For Defendant-Appellee
KENNETH CALDERONE
JOHN CHLYSTA
3737 Embassy Parkway
Akron, OH 44334
Gwin, P.J.
{¶1} Appellant appeals the November 15, 2013 judgment entry of the Stark County Court of Common Pleas granting appellee‘s motion for summary judgment.
Facts & Procedural History
{¶2} In October of 2009, appellee Larry Murphy Dump Truck Services, Inc. (“LMDT“) had a contract to repave a parking lot at the Giant Eagle Grocery Store in Louisville, Ohio. The first day of the project involved blocking off, prepping, and paving one-half of the parking lot. The second day of the project involved moving barricades, prepping, and paving the remaining half of the parking lot. On the second day, foreman Ron Blackburn (“Blackburn“) gave his crew members their job assignments. Blackburn was employed by Road Aggregate. Matt Hoopes was told to use a skid steer to clean dirt and debris from the remaining section of the parking lot before it was repaved. The skid steer, often called a “Bobcat,” had a mechanical broom device to sweep dirt and debris from the area. The skid steer was owned by LMDT. Hoopes and appellant Joseph Beary (“Beary“) were employed by LMDT.
{¶3} Appellant and another worker were assigned to stretch caution tape around the remaining parking lot section as a barricade to keep motorists from driving into the area where they would be paving. As appellant was tying caution tape to an overturned shopping cart, he was struck from behind by the skid steer, sustaining serious injuries. At the time of the accident the skid steer was in reverse and the operator did not know appellant was behind him. Appellant did not know the skid steer was headed in his direction because he had his back turned to the machine. The skid
{¶4} Appellant brought suit against his employer LMDT for an intentional tort pursuant to
{¶5} Appellant appealed this Court‘s ruling to the Ohio Supreme Court, asserting two propositions, the first focused on whether the backup alarm was an equipment safety guard under
{¶6} On remand, the parties again briefed the issue in cross-motions for summary judgment. The trial court issued a judgment entry on November 15, 2013, granting summary judgment to LMDT. The trial court applied the Hewitt test and determined the backup alarm is not an “equipment safety guard” because the “alarm does not shield the operator or bystander from exposure to or injury by a dangerous aspect of the equipment. It serves only to alert or warn of the skid steer‘s approach.” The trial court also found that even if the backup alarm is an equipment safety guard, no rebuttable presumption of intent to harm arises because there was no evidence that LMDT deliberately removed the alarm.
{¶7} LMDT appeals the November 15, 2013 judgment entry of the Stark County Court of Common Pleas and assigns the following as error:
{¶8} “I. THE TRIAL COURT ERRED BY DETERMINING THAT A BACKUP ALARM IS NOT AN EQUIPMENT SAFETY GUARD AS SET FORTH IN
{¶9} “II. THE TRIAL COURT ERRED BY FINDING THAT THERE WAS NO DELIBERATE REMOVAL OF A SAFETY GUARD WHEN IT WEIGHED THE FACTS AND IN ITS APPLICATIONS OF THE REBUTTABLE PRESUMPTION OF INJURY AS SET FORTH IN
{¶10}
“Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party‘s favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”
{¶11} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the
{¶12} When reviewing a trial court‘s decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d 1243.
{¶13} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrates absence of a genuine issue of fact on a material element of the non-moving party‘s claim. Drescher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).
I.
{¶14} Appellant contends the trial court erred in finding that the backup alarm in this case is not an equipment safety guard. Appellant argues the backup alarm is a protective device on a skid steer designed to make it safe and guard against the known danger of operating the machine in reverse.
{¶16} In Beyer v. Rieter Automotive North American, 134 Ohio St.3d 379, 2012-Ohio-5627, 982 N.E.2d 708, the Ohio Supreme Court reversed the decision of the appeals court that found that face masks were equipment safety guards, and entered judgment in favor of the employer. In Houdek v. Thyssenkrupp Materials, N.A., Inc., the Court determined that orange cones, reflective vests, and retractable gates are not equipment safety guards. 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253. The Supreme Court declined to accept cases in which appeals courts determined that the
{¶17} In this case, we find the backup alarm is not an equipment safety guard for purposes of
{¶19} The backup alarm in this case does not constitute an “equipment safety guard” for purposes of
II.
{¶20} Appellant further argues the trial court erred by finding, assuming arguendo that the backup alarm is an equipment safety guard, that there was no evidence of deliberate removal of a safety guard. We disagree.
{¶21} There is a rebuttable presumption of employer intent upon a showing of the “deliberate removal * * * of an equipment safety guard * * * if an injury * * * occurs as a direct result.”
{¶22} The Supreme Court further found in Houdek v. Thyssenkrupp Materials, N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, that, in the absence of deliberate removal, a plaintiff must establish that the employer acted with specific intent to injure him. In Houdek, the Court rejected the argument that the intent inquiry was an objective one satisfied by an employer‘s mere knowledge of a hazardous condition, as such would be covered by workers’ compensation. See Broyles v. Kasper Machine Co., 6th Cir. No. 12-3464, 2013 WL 827713 (March 7, 2013). Even if an employer places an employee in a potentially dangerous situation, there must also be evidence that either management or the supervisor deliberately intended to injure the employee for
{¶23} Even if we found that the backup alarm is an equipment safety guard, we cannot find any evidence the employer deliberately removed it. Appellant asserts that the evidence that the backup alarm was disconnected and did not work for three to six months was enough to establish the rebuttable presumption of intent. Alternatively, that the affidavit and/or testimony of Steve Mumford (“Mumford“) demonstrates that an issue of fact exists as to deliberate intent.
{¶24} As specifically stated in Houdek, the Ohio Supreme Court rejected the argument that the intent inquiry was an objective one satisfied by an employer‘s mere
{¶25} After reviewing the evidence, we cannot find any indication that the employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate the backup alarm. Appellant‘s second assignment of error is overruled.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur