2006 Ohio 596 | Ohio Ct. App. | 2006
{¶ 2} Appellant, Cheryl Davis, who was employed by appellee, severely injured her hand when she attempted to clean an 18-inch temper mill at appellee's Coshocton, Ohio facility. The mill contains two work rolls which create an ingoing nip point when operating in the "run" mode. The nip point is approximately 46 inches inside the mill. The nip point can be eliminated by putting the mill into a "polish" or "cleaning" mode, which reverses the rotation of the work rolls so that they push away, rather than draw in, anything coming into contact with them. Appellee's safety procedures required that the rolls be put into the polish mode before cleaning, and that a squeegee-like device be used to clean the rolls. Davis was injured when she attempted to clean the rolls with a rag while they were operating in the run mode.
{¶ 3} Appellants brought an intentional tort action against appellee, alleging that appellee failed to protect Cheryl Davis with safety guards at the mill's nip point and failed to employ proper safety procedures. Appellee moved for summary judgment, arguing that appellants claim failed to meet the three-pronged test set forth in Fyffe v. Jeno's, Inc. (1991),
{¶ 4} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLEE, AK STEEL CORPORATION, ON THE COMPLAINT OF PLAINTIFF-APPELLANT, CHERYL DAVIS, ET AL."
{¶ 5} Civ.R. 56(C) provides in part that summary judgment shall be rendered where (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the party against whom the motion is made, who is entitled to have the evidence construed most strongly in its favor. See, also, Harless v.Willis Day Warehousing Co. (1978),
{¶ 6} Generally, an employee's only recourse for a workplace injury is through the Workers' Compensation System. SeeBlankenship v. Cincinnati Milacron Chemicals (1982),
{¶ 7} To establish intent for the purpose of proving an employer's intentional tort, the employee must show the following:
{¶ 8} "(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task." Fyffe v. Jeno's, Inc. (1991),
{¶ 9} The proof required to demonstrate an intentional tort is beyond that which is required to prove negligence or recklessness. Hannah,
{¶ 10} The trial court found that summary judgment was appropriate, in part, because appellant had failed to show that appellee had knowledge that an accident such as the one she suffered was substantially certain to occur, and therefore had not satisfied the second prong of the Fyffe test. We agree and because we find the issue dispositive, address it first.
{¶ 11} While arguably aware of the danger posed by the nip point, appellee had adopted safety regulations which addressed the danger posed by the nip point, and trained appellant about the danger posed by moving rolls. Appellee's safety regulations specifically required that the rolls be cleaned while set in the polish mode, which eliminated the nip point, and required that the rolls be cleaned with a tool, not by hand. Appellee had issued a "red alert" warning employees of the danger posed by moving rolls. "An employer cannot be held to know that a dangerous condition exists and that harm is substantially certain to occur when he has taken measures that would have prevented the injury altogether had they been followed. * * * [W]hen safety devices or rules are available but are ignored by employees, the requisite knowledge of the employer is not established."Robinson v. Icarus Industrial Constructing Painting Co.,
{¶ 12} Appellant argues that an expert report supports her position that her injury was substantially certain to occur. The report concludes that the failure to install a guard at the nip point made injury to someone "at sometime" inevitable. An expert's opinion, however, "does not establish that element as a legal conclusion." Teal v. Colonial Stair and Woodwork Co.,
Fayette App. No. CA2004-03-009,
{¶ 13} "It must be emphasized that `[t]here are many acts within the business or manufacturing process which involve the existence of dangers, where management fails to take corrective action, institute safety measures, or properly warn the employees of the risks involved. Such conduct may be characterized as gross negligence or wantonness on the part of the employer. However, in view of the overall purposes of our Workers' Compensation Act, such conduct should not be classified as an `intentional tort' and therefore an exception * * * to the exclusivity of the Act.'"Sanek at 172-173, quoting Van Fossen v. Babcock Wilcox Co.
(1988),
{¶ 14} Weighing the evidence in favor of appellant, we find that reasonable minds could not conclude that appellee knew that the harm that befell appellant was substantially certain to occur. Therefore, appellant has not met the requirements of the second prong of Fyffe, necessary to demonstrate intent in an employer intentional tort case. Having failed in this regard, appellant's claim fails as a matter of law and we need not consider the evidence related to the remaining prongs of theFyffe test. See Teal, Sanek, Brewster v. Prestige Packaging,Inc., Butler App. No. CA2000-05-085, 2001-Ohio-4201. Our independent review of the record confirms that the trial court's decision to grant appellee's motion for summary judgment was appropriate. The assignment of error is overruled.
{¶ 15} Judgment affirmed.
Powell, P.J., and Young, J., concur.