Dudley v. Powers & Sons, L.L.C.Dudley v. Powers & Sons, L.L.C.
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Kevin J. Boissoneault and Jonathan M. Ashton, for appellant/cross-appellee.
Marc J. Meister, for appellee/cross-appellant.
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OSOWIK, P.J.
{¶ 1} This is an appeal and cross-appeal from a judgment of the Williams County Court of Common Pleas which granted summary judgment to appellee/cross-appellant on appellant/cross-appellee‘s intentional tort claim. For the reasons set forth below, we reverse the judgment of the trial court and deny the cross-appeal.
{¶ 3} “I. The trial court erred where it invaded the province of the jury to determine the proximate cause of Appellant David Dudley‘s injuries.
{¶ 4} “II. The trial court erred where it incorrectly applied the standard of review concerning rebuttable presumptions.
{¶ 5} “III. The trial court erred where it failed to find that Appellant David Dudley is entitled to the statutory presumption of injurious intent codified at
{¶ 6} “IV. The trial court erred where it granted summary judgment in favor of Appellee Powers & Sons, LLC.”
{¶ 7} Appellee/cross-appellant, Powers & Sons, LLC (“Powers“), sets forth the following assignment of error on cross-appeal:
{¶ 8} “The trial court committed reversible error when it failed to rule upon and thereby implicitly denied Defendant Powers & Sons, LLC‘s Motion to Strike Portions of the Deposition Testimony of Gerald Rennell, Ph.D., wherein he opined that the removal of dual palm buttons during the 2002 retooling of the subject press constituted the removal of an equipment safety guard thereby establishing ‘deliberate intent’ for purposes of
{¶ 9} The following undisputed facts are relevant to the issues raised on appeal. In 2000, Powers purchased a two-ton hydraulic press to be used in the manufacture of
{¶ 10} In 2002, Powers made in-house modifications to the press in response to complaints by press operators and supervisors. These changes included the installation of a sliding block and mandrel, the installation of a wire mesh cage around the ram, and, most significantly to the instant case, removing the original equipment dual actuating buttons in favor of an optical sensor. As redesigned, an operator would manually place the ring on the block and mandrel and slide it through an opening in the wire mesh cage placing the ring in position beneath the ram. When the ring was in position the optical sensor would detect it and automatically activate the press. When the block and mandrel were properly in place, the point of operation was inaccessible to the press operator.
{¶ 11} On October 13, 2005, Dudley arrived at Powers for his first day of work and was assigned by a supervisor to operate the aforementioned hydraulic press. After a brief demonstration by a fellow Powers employee, Brad Wyrick, on how to operate the machine, Dudley began operation of the press. Although Wyrick demonstrated the press operation, Dudley received no instruction on maintenance or service of the press, the location or use of any air hose, or that the press was activated by an electronic sensor.
{¶ 13} Subsequently, Dudley filed an intentional tort claim against Powers pursuant to
{¶ 14} “Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”
{¶ 15} Both parties then filed motions for summary judgment. On July 2, 2010, the trial court granted Powers’ motion for summary judgment, ruling that the direct cause of the injury was not the removal of the dual buttons, but the installation of the electronic sensor. As such, the court determined that
{¶ 16} The legitimacy of the first three assignments of error are substantively implied by the assertion set forth in the fourth assignment. As such, our analysis will commence with that assignment.
{¶ 17} In Dudley‘s fourth assignment of error, he claims that the court erred by granting summary judgment to Powers. When reviewing a grant of summary judgment, this court will conduct its review de novo. Doe v. Schaffer, 90 Ohio St.3d 388, 390. Summary judgment is appropriate where the court determines that “there is no issue of material fact and that the moving party is entitled to judgment as a matter of law.”
{¶ 18}
{¶ 19} After consideration of these conflicting positions, we find that what the direct cause of the injury is constitutes a factual issue to be determined, not as a matter of law, but by the trier of fact. As such, a genuine issue of material fact remains in dispute
{¶ 20} Given our reversal of summary judgment in the fourth assignment of error, the bulk of the first three assignments of error are rendered moot. Dudley‘s first assignment of error is in essence a reiteration of our conclusion that the direct cause of Dudley‘s injury is an issue of material fact. Likewise, this determination of fact will ultimately decide the issue Dudley raises in his third assignment of error as to whether
{¶ 21} Lastly, appellant‘s second assignment of error speaks to the standard of review for rebuttable presumptions. In an effort to rebut the presumption of intent, Powers has entered an affidavit from its manufacturing engineer that there was no intent by Powers to harm Dudley. The testimony of a Powers employee cannot be weighed so heavily to say that reasonable minds could not disagree on the issue of intent. Should a jury determine that the rebuttable presumption does apply to this case, it will also be for them to determine whether this testimony, or any other evidence presented on this issue, is sufficient to rebut the presumption. As such, we likewise find the second assignment of error moot.
{¶ 23} Dr. Rennell‘s testimony goes to refute Powers’ assertion that dual button controls are not safety guards. This issue is, of course, of special importance in determining whether or not Dudley can invoke
{¶ 24} Powers’ argument centers on its belief that the average layperson can determine whether or not dual button controls are safety guards. This ignores the fact that industrial technology incorporates complex mechanical and electrical systems.
{¶ 25} While it may be true that Powers, a sophisticated manufacturer, understands the way in which these machines function, it cannot impute its knowledge on jurors who must make the final determination of what does or does not constitute a safety guard. On remand, Powers may provide its own expert testimony refuting Dr. Rennell‘s opinion, but it may not have Dr. Rennell‘s opinion as to whether or not dual control buttons are safety guards stricken from the record. Powers’ cross-assignment of error is found not well-taken.
{¶ 26} On consideration whereof, the judgment of the Williams County Court of Common Pleas is reversed. The case is remanded to the trial court for further
JUDGMENT REVERSED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
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JUDGE
Arlene Singer, J.
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Thomas J. Osowik, P.J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.