Forwerck v. Principle Business Ents., Inc.Forwerck v. Principle Business Ents., Inc.
Michael W. Regnier, Sarah E. Pawlicki and Joseph Dawson, for appellee.
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DECISION AND JUDGMENT
HANDWORK, J.
{¶ 1} In this appeal from the Wood County Court of Common Pleas, we are asked to consider the following assignment of error:
{¶ 2} “The trial court erred in granting summary judgment in favor of defendant-appellee where plaintiff-appellant established genuine issues of material fact by which reasonable minds could find liability pursuant to
{¶ 4} In addition, PBE placed safety rule signs all over the plant. The sign near Line 4 provides, in material part:
{¶ 5} “Do not operate machinery unless all guards are in place and properly positioned. Guards should only be removed by authorized personnel for repairs or adjustment and then should be replaced before operating machinery. * * *.
{¶ 6} “Never reach into moving machinery.
{¶ 7} “Do not repair or adjust machinery in operation where there is any possibility of injury.”
{¶ 9} On April 3, 2009, appellant filed, pursuant to
{¶ 10} On March 23, 2010, however, the Supreme Court of Ohio determined that
{¶ 11} On May 19, 2010, appellee filed its second motion for summary judgment, asserting, that under
{¶ 12} After the parties filed replies and supplemental memoranda, the trial court granted PBE‘s motion for summary judgment. The trial judge found that appellant failed to create a genuine issue of material fact on the issue of whether Alan Clifford, the Vice President of Operations at PBE and manager of the day to day operation of the factory, was even aware of the “dangerous practice” used by the employees on Line 4 in removing excess glue from the insert knife drum.
{¶ 13} Because an appellate court reviews the grant of a summary judgment de novo, the standard applicable to both of appellant‘s assignment of error is found in
{¶ 14} “Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, 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, such party being entitled to have the evidence or stipulation construed most strongly in his favor.”
{¶ 15} On appeal, appellant relies on
{¶ 16}
{¶ 18} “(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.
{¶ 19} “(C) Deliberate removal by an employer of an equipment safety guard * * * creates a irrebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury * * * occurs as a direct result.”
{¶ 20} Forwerck relies on his deposition testimony and the deposition testimony of Ernesto Villarreal, Darrel Smith, Chad Grover, and Alan Clifford to argue that because PBE required employees on Line 4 to use the six foot ladder to reach over the guard wall while the line is running, it created a irrebuttable presumption of an intent to injure him under
{¶ 21} As applied to the case before us, “deliberate” means: “characterized by or resulting from careful and thorough consideration-a deliberate decision.” Merriam-Webster‘s Collegiate Dictionary (10 Ed. 1996) 305. Thus, the testimony of the aforementioned PBE employees must, at the least, create a question of fact on the issue of whether PBE acted with a conscious, careful consideration of the consequences, that is,
{¶ 22} In his deposition, Ernesto Villarreal, appellant‘s immediate supervisor, stated that the six foot rolling ladder was on the production line for use in “threading the machinery on Line 4 up” when the line was stopped. Villarreal acknowledged that although it was not an approved process to use the rolling ladder to clean glue off the insert knife drum while it was spinning, he utilized it to reach over the top of the guard wall to, using a “rag” and “Right Stuff” solvent, wipe off a build up of hot glue on that drum while it was in operation. Nonetheless, in an affidavit, Villarreal swore that he never told appellant that he was required to clean excess glue off the insert knife drum while it was operating.
{¶ 23} In his deposition, James Forwerck admitted that he was aware of the warning signs posted on Line 4, in particular, the sign warning employees never to reach into moving machinery. He claimed, however, that Villarreal showed him how to clean the excess glue off the insert knife drum while the line was running because it would improve his efficiency numbers, meaning a higher amount of product would be completed on his shift and the amount of scrap would be reduced. Nevertheless, a reading of Villarreal‘s deposition reveals that despite the fact that he did assert that cleaning off excess glue on said drum while Line 4 was in operation could help maintain
{¶ 24} Chad Grover, who was a helper on Line 4 at the time of appellant‘s accident, stated that he would clean the excess glue off the knife insert drum while the line was in operation by using the rolling ladder and reaching over the guard wall.1 When asked whether Alan Clifford, the Vice-President of Operations at PBE, was aware of this practice, Grover answered that he did not know whether Clifford was aware of the same. He did, nonetheless, say that “management” knew that it was common practice for workers to reach over the wall to wipe off excess glue. He also testified that after appellant‘s injury, the line is now stopped and the guard wall is opened for cleaning off excess glue. When asked about efficiencies and their effect on his evaluations and ability to keep his job, Grover replied that they were only a part of his evaluations and that while they play a part in keeping his employment, it would depend on what caused the problem.
{¶ 25} Appellant claims that Darrel Smith, PBE‘s plant manager, testified in his deposition that the failure of a line operator to make his efficiencies, that is, productions goals, could result in termination or reassignment. Actually, when asked this question, Smith replied that simply failing to “hit their numbers” did not lead to the termination of employees. Rather, Smith indicated that depending on the cause, and if he or she was a good employee, “it could lead to reassignment.”
{¶ 27} Based on the evidence set forth above, we find that appellant‘s arguments fail as a matter of law under
{¶ 28} The judgment of the Wood County Court of Common Pleas is affirmed. Appellant, James Forwerck, is ordered to pay the costs of this appeal pursuant to
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
JUDGE
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, J.
CONCUR.
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.