Fickle v. Conversion Technologies Internatl., Inc.Fickle v. Conversion Technologies Internatl., Inc.
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Kevin J. Boissoneault and Jonathan M. Ashton, for appellants.
Joseph P. Dawson and C. William Bair, for appellee.
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YARBROUGH, J.
{¶ 1} This is an appeal from a summary judgment granted in favor of the employer in a workplace intentional tort action brought pursuant to
{¶ 3} At the time of her injury, Fickle had just removed a section of nonconforming laminated roofing material and was in the process of splicing the conforming ends around the rewind roller. The duties of a CTI rewind operator in regard to nonconforming sections of processed material vary in accordance with customer specifications. Some customers prefer that the imperfections or wrinkles in the membrane be marked on the material, while other customers require them to be removed.
{¶ 4} The removal of nonconforming material is accomplished through a cut-and-splice procedure known as “tucking.” First, the nonconforming area is identified or pre-
{¶ 5} The rewind end of the Gravure Line is equipped with a “jog/continuous” switch, which is located on a control panel to the right of the machine. When placed in jog mode, the rewind roller will run only so long as the jog button is depressed and will stop when the operator‘s finger comes off the button. Otherwise, the roller runs uninterrupted on this particular job at a speed of approximately 20 to 30 feet per minute. Prior to the day of her injury, Fickle had never performed or been trained in the tucking procedure on a job that required the removal of nonconforming material. Her first and only training in that regard occurred approximately two hours before her injury and consisted entirely of watching a co-worker, Katrina Scalf, perform the operation. Specifically, Scalf trained Fickle to run the machine in continuous mode while splicing the material back together on the rewind roll.
{¶ 6} The rewind station is also equipped with an emergency stop cable, which connects to a red box on the left side of the machine. This cable was found to have been
{¶ 7} On May 23, 2008, Fickle refiled a complaint against CTI, which had formerly been dismissed under
{¶ 8} The trial court stayed the proceedings on April 1, 2009, pending a determination by the Supreme Court of Ohio as to the constitutionality of
{¶ 9} On July 26, 2010, CTI moved for summary judgment on two grounds. First, CTI argued that the record contained insufficient evidence to satisfy the standard of specific or deliberate intent to injure under
{¶ 10} In response, appellants relied heavily on the opinions of their safety expert, Gerald Rennell, who testified at deposition and by attached affidavit that CTI removed two equipment safety guards from the Gravure Line when it disconnected the emergency stop cable and failed to train Fickle to use the jog control while performing the tucking procedure. In its reply, CTI argued that the meaning of “equipment safety guard” and “deliberate removal” is a question of law for the court and that the opinions of appellants’ safety engineer are irrelevant to that determination.
{¶ 11} On September 20, 2010, the trial court entered summary judgment in favor of CTI, finding that reasonable minds could only conclude from the evidence that “(1) C.T.I. had no deliberate intent to injure Fickle and (2) C.T.I. did not deliberately remove any equipment safety guard.” In regard to the latter finding, the trial court rejected
{¶ 12} In regard to the jog control, the court reasoned that “a failure to train * * * cannot be construed as a deliberate removal” and that the jog switch is not a guard because it does not “shield from accidental contact, the [operator‘s] hand and/or arm from entering the rewind pinch point in the first place. As to the emergency stop cable, the trial court reasoned:
{¶ 13} “The cable does not guard or prevent the rotating rewind pinch point from catching or entangling the operator‘s hand, arm or clothing; rather it is an emergency shut-off cord to stop the rewind to minimize the extent of the injury to the operator. This emergency cable is not a guard. Further, this emergency stop cable was never removed or taken off the machine; it was still there, just disconnected. Someone just forgot to reconnect the cable.”
{¶ 14} Appellants now appeal that judgment, asserting the following four assignments of error:
{¶ 15} “I. The trial court erred where it improperly held that the undefined terms in
{¶ 17} “III. The trial court erred where it failed to find that Appellant Tara Fickle is entitled to the statutory presumption of injurious intent codified at
{¶ 18} “IV. The trial court erred where it granted summary judgment in favor of Appellee Conversion Technologies International, Inc.”
I. PRESUMPTION OF INTENT TO INJURE
{¶ 19} The first three assignments of error are directed at the applicability of
A. INTERPRETATION OF THE UNDEFINED TERMS IN R.C. 2745.01(C) IS A QUESTION OF LAW FOR THE COURT
{¶ 20}
{¶ 21} “(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional
{¶ 22} “(B) As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.
{¶ 23} “(C) 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.”
{¶ 24} The General Assembly has not provided a definition of “equipment safety guard” or “deliberate removal” for purposes of
{¶ 25} It is well-established that the interpretation of undefined statutory terms is not a question of fact, but a question of law for the court. Akron Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 128 Ohio St. 3d 145, 2010-Ohio-5035, ¶ 10; Gilman v. Hamilton Cty. Bd. of Revision, 127 Ohio St.3d 154, 2010-Ohio-4992, ¶ 8; Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010-Ohio-1926, ¶ 6; State v. Snyder, 5th Dist. No. 02-CA-48, 2002-Ohio-7049, ¶ 17; Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 466; and Neiman v. Donofrio (1992), 86 Ohio App.3d 1, 3.
{¶ 26} This means, in particular, that such terms are not susceptible to definition by an expert witness. As explained by the Tenth District Court of Appeals:
{¶ 27} “While expert testimony may be used to establish breach of a standard created by statute or rule, such testimony is not admissible to interpret statutory terms which create the standard. * * * Thus, when a * * * duty is set forth in statutes and regulations, an expert may not define the duty by interpreting statutory or regulatory terms. * * * To the extent that plaintiffs’ expert testifies to the meaning of ‘temporary stresses’ within the building code, that testimony is not relevant to a determination of any duty the OBBC requirements impose on [defendants].” (Citations omitted.) Nicholson v. Turner/Cargile (1995), 107 Ohio App.3d 797, 809. See, also, Dawson v. Williamsburg of Cincinnati Mgt. Co. (Feb. 4, 2000), 1st Dist. No. C-981022.
{¶ 28} Thus, we agree with the trial court that the meaning of the terms “equipment safety guard” and “deliberate removal” in
B. THE UNDEFINED TERMS IN R.C. 2745.01(C) ARE TO BE GIVEN THEIR PLAIN AND ORDINARY MEANING
{¶ 29} “In the absence of clear legislative intent to the contrary, words and phrases in a statute shall be read in context and construed according to their plain, ordinary meaning.” Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 137. The
{¶ 30} This court recently relied on the dictionary definition of “deliberate” in construing that term for purposes of
{¶ 31} The trial court held, and CTI agrees, that the undefined terms in
{¶ 32} Combining the above definitions, and considering the context in which the phrase is used in the statute, we find that “deliberate removal” for purposes of
{¶ 33} With respect to “equipment safety guard,” however, CTI argues that we should construe that term to mean a “barrier guard” or “a barrier that prevents entry” in accordance with the definitions of “guard” provided by the Occupational Health and Safety Administration (“OSHA“) in
{¶ 35} In some cases, courts have given a technical meaning to an undefined term where the statute regulates a specialized industry or field of practice and the term has acquired a technical or particular meaning in that industry or field. See Hoffman v. State Med. Bd. of Ohio, 113 Ohio St.3d 376, 2007-Ohio-2201, ¶ 26; State v. Rentex, Inc. (1977), 51 Ohio App.2d 57, paragraph one of the syllabus. But
{¶ 37} “The General Assembly has not provided a definition of ‘equipment safety guard’ as that term is used in the statute. A review of the legislative history, staff notes, and Committee Reports, also fail [sic] to provide any guidance or understanding of the meaning of that term. Therefore, it can only be defined according to the common understanding of the meaning of the words used.”
{¶ 38} “Guard” is defined as “a protective or safety device; specif: a device for protecting a machine part or the operator of a machine.” Merriam-Webster‘s Collegiate Dictionary, supra, at 516. “Safety” means “the condition of being safe from undergoing or causing hurt, injury, or loss.” Id. at 1027. And “equipment” is defined as “the implements used in an operation or activity: APPARATUS.” Id. at 392. In turn, “device” is “a piece of equipment or a mechanism designed to serve a special purpose or perform a special function.” Id. at 316. “Protect” means “to cover or shield from exposure, injury, or destruction: GUARD.” Id. at 935. “Safe” is defined as “free from harm or risk” and “secure from threat of danger, harm, or loss.” Id. at 1027.
{¶ 40} In Vermett, this court considered wrist restraints and dual palm buttons as “point of operation safeguarding.” Id. at 602. Similarly, in Wehri v. Countrymark, Inc, (May 21, 1990), 3d Dist. Nos. 1-89-13, 1-89-14, the Third District gave the following definition of equipment safety guard as used in former
{¶ 41} “An equipment safety guard is a device placed on equipment to prevent an employee from being drawn into or injured by that equipment. As examples we think of screens over moving belts or over moving gears and pulleys, and of presses which can only be activated by an employee by pressing one or more switches positioned so that no part of the employee will be in the path of the presses action when the employee activates the switches.”
{¶ 42} These cases do not support appellants’ definition, as they do not involve devices that allow the operator to encounter or contact the danger. The devices that are mentioned or considered in these cases, while perhaps not constituting physical covers or
{¶ 43} Thus, as used in
C. THE ACTIONS OF CTI DID NOT CONSTITUTE THE DELIBERATE REMOVAL OF AN EQUIPMENT SAFETY GUARD
{¶ 44} The jog control and emergency stop cable in this case were not designed to prevent an operator from encountering the pinch point on the rewind roller and, therefore, are not equipment safety guards for purposes of the presumption in
{¶ 45} In any event, neither of the subject devices was deliberately removed from the Gravure Line. As to the jog control, the failure to train or give instructions in regard to a safety procedure does not constitute the removal of a safety guard. See Teal v. Colonial Stair & Woodwork Co., 12th Dist. No. CA2004-03-009, 2004-Ohio-6246, ¶ 22; Williams v. Price (Ala. 1990), 564 So.2d 408, 411. With respect to the emergency stop cable, we disagree with the trial court that this device was not removed, but was merely disconnected. Disconnecting the cable disables the stop control and, therefore, constitutes removal. However, it is undisputed that CTI intended for the cable to have been reconnected at the time of Fickle‘s injury. Thus, under the particular facts of this case, there is insufficient evidence to establish that the removal of the cable was deliberate.
{¶ 46} We conclude, therefore, that the presumption of intent to injure provided in
{¶ 47} In their fourth assignment of error, appellants contend that the evidence is sufficient to withstand summary judgment under
{¶ 48} We have already determined that the evidence is insufficient to establish that CTI deliberately removed the emergency stop cable for purposes of the presumption under division (C). In light of that determination, we must conclude that the removal of the cable is also insufficient to establish that CTI acted with deliberate intent to injure under divisions (A) and (B). We also find that a failure to provide adequate training and to guard the point of operation is not sufficient to establish deliberate intent to injure. These kinds of failures did not suffice to establish an employer intentional tort even under the common-law standard of “substantial certainty.” See, e.g., Davis v. AK Steel, 12th Dist. No. CA2005-07-183, 2006-Ohio-596, ¶ 12; Teal, supra, 2004-Ohio-6246, ¶ 22. While the conduct of CTI in requiring Fickle to splice the material together by hand on an unguarded roller may be reckless, there is no evidence that CTI acted with deliberate intent to injure its employees.
{¶ 49} Accordingly, appellants’ fourth assignment of error is not well-taken. The judgment of the Williams County Court of Common Pleas is affirmed. Appellants are ordered to pay the costs of this appeal pursuant to
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
JUDGE
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
Arlene Singer, J.
CONCURS AND WRITES SEPARATELY.
JUDGE
SINGER, J., concurring.
{¶ 50} I reluctantly concur with the majority, but must comment on the narrow path an injured worker must tread in order to survive summary judgment in an intentional tort case pursuant to the statute. We have found that the term “deliberate removal” pursuant to