JONATHON KLAUS, PLAINTIFF-APPELLANT, v. UNITED EQUITY, INC., DEFENDANT-APPELLEE.
CASE NO. 1-07-63
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
August 2, 2010
2010-Ohio-3549
Appeal from Allen County Common Pleas Court Trial Court No. CV2006 0696 Judgment Affirmed
Victoria U. Maisch, for Appellant
Elizabeth A. Harvey, for Appellee
I. Facts/ Procedural Posture
{¶1} Plaintiff-appellant, Jonathon Klaus (hereinafter “Klaus“), appeals the Allen County Court of Common Pleas’ grant of summary judgment in favor of his former employer, defendant-appellee, United Equity, Inc. (hereinafter “United“) on his claim for an employer intentional tort for injuries he sustained while working. For the reasons that follow, we affirm.
{¶2} Around 1983, the Delphos Equity Elevator Company and The Spencerville Farmers’ Union merged into one corporation called United Equity. (Knippen Depo. at 11-12). United‘s Spencerville facility grinds, mixes, loads, and packages grain products and feed. (Haehn Depo. at 7). In order to accomplish these tasks, United uses various pieces of mechanical equipment, including various augers, which move and grind grain. At the time of Klaus’ injury, United had five (5) employees at its Spencerville facility: Cory Haehn, general manager/supervisor; Jacqueline Knippen, general manager/bookkeeper; Allen McMichael, laborer/truck driver; and Phillip O‘Neill and Jonathon Klaus, laborers. (Haehn Depo. at 33).
{¶3} United hired Klaus as a general laborer at the Spencerville grain facility in April 2005. (Klaus Depo. at 52). Klaus was trained by his fellow employees, McMichael and O‘Neill, to grind, mix, load, and package grain. (Id. at
{¶4} As a part of its operational safety plan, United implemented a written lock-out/tag-out (hereinafter “LO/TO“) procedure for repairing power equipment. Klaus, however, never received LO/TO training nor is it clear whether he ever received a written LO/TO policy when he began his employment. (Klaus Depo. at 66); (O‘Neill Depo. at 47). United‘s employees and management did not follow or enforce the written LO/TO policy; rather, each employee developed their own safety “rules of thumb.” (Haehn Depo. at 21); (O‘Neill Depo. at 17, 22, 31); (McMichael Depo. at 30-32). Haehn removed fuses from electrical boxes before repairing equipment, while others, like Klaus and O‘Neill, simply turned off the equipment‘s power switch or made sure someone else had turned it off. (Klaus Depo. at 59); (Haehn Depo. at 21).
{¶5} On February 13, 2006, Klaus was informed that two (2) shear bolts on a grinding auger needed to be replaced. Klaus had replaced these shear bolts three or four (3 or 4) times prior and proceeded to make the repairs this time as well. (Klaus Depo. at 62). The shear bolts that needed to be replaced were located in the section of the auger located on the facility‘s third floor. (McMichael Depo. at 27-28). The power source for the auger is located on the facility‘s first floor. (O‘Neill Depo. at 26). The person on the third floor cannot see the first floor
{¶6} Klaus found a shear bolt to make the repair. Klaus then told O‘Neill to turn off the power to the auger and keep an eye on the power switch. (Klaus Depo. at 64). Klaus went to the man-pull lift and ascended to the third floor. At some point after Klaus began making the repairs, McMichael came into the facility and asked O‘Neill if they had “got it.” (O‘Neill Depo. at 42). O‘Neill thought McMichael was аsking if Klaus had found a shear bolt and remembered saying, “yes, we got one.” (Id.). McMichael, on the other hand, thought O‘Neill meant that Klaus was finished repairing the auger, and so McMichael activated the power to the auger. (Id.); (McMichael Depo. at 36). Klaus, however, was not finished repairing the auger, and his hand was amputated when McMichael activated the power. (McMichael Depo. at 45-46).
{¶7} On July 12, 2006, Klaus filed a complaint against United alleging an employer intentional tort as a result of thе injuries he sustained. (Doc. No. 1). On September 8, 2006, United filed its answer. (Doc. No. 5). On June 1, 2007, United filed a motion for summary judgment. (Doc. No. 23). On July 23, 2007, the trial court granted United‘s motion. (Doc. No. 34). On September 10, 2007, the trial court filed a judgment entry dismissing the complaint. (Doc. No. 40).
{¶9} On May 12, 2008, United Equity appealed our decision to the Ohio Supreme Court, which accepted the appeal on September 10, 2008.
{¶10} On March 23, 2010, the Ohio Supreme Court reversed our decision and remanded the matter for this Court to “apply” its recent decisions in Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, neither of which had been decided prior to Klaus’ appeal to this Court. Klaus v. United Equity, Inc., 125 Ohio St.3d 279, 2010-Ohio-1014, 927 N.E.2d 1092.
{¶11} The Ohio Supreme Court‘s notice of remand was filed with this Court on April 8, 2010, and, on April 14, 2010, we ordered the parties to file supplemental briefs in light of Kaminski and Stetter, supra. The parties have filed their supplеmental briefs, and the appeal is now before the Court on remand.
{¶12} We review a decision to grant summary judgment de novo. Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243, citing Grafton v. Ohio Edison (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is proper where: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can reach but one conclusion when viewing the evidence in favor of the non-moving party, and the conclusion is adverse to the non-moving party.
{¶13} Material facts are those facts “that might affect the outcome of the suit under the governing law.” Turner v. Turner (1993), 67 Ohio St.3d 337, 340, 617 N.E.2d 1123, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202. “Whether a genuine issue exists is answered by the following inquiry: [d]oes the evidence present ‘a sufficient disagreement to require submission to a jury’ or is it ‘so one-sided that one party must prevail as a matter of law[?]‘” Id., citing Liberty Lobby, Inc., 477 U.S. at 251-52.
{¶14} Summary judgment should be granted with caution, resolving all doubts in favor of the nonmoving party. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 333, 587 N.E.2d 825. “The purpose of summary judgment is not to try issues of fact, but is rather to determine whether triable issues of fact exist.” Lakota Loc. Schools Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671 N.E.2d 578.
III. Analysis
A. The Ohio Supreme Court‘s Decisions in Kaminski & Stetter
{¶15} Before reviewing the assignments of error in this appeal, it is necessary to discuss the Ohiо Supreme Court‘s recent decisions in Kaminski and Stetter. 2010-Ohio-1027; 2010-Ohio-1029. As the Court noted, the net result of these two decisions was to confirm the constitutionality of
{¶16} The Court in Kaminski ultimately held that
{¶17} The Court in Kaminski then acknowledged that, despite the legislative efforts to limit an injured worker‘s recovery to that provided within the workers’ compensation system, it “devised” an exception in Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572. Id. at ¶21. Blankenship‘s syllabus held that “[a]n employee is not precluded by Section 35, Article II of the Ohio Constitution, or by
* * * in order to establish ‘intent’ for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (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 tо 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.
Id. at ¶¶29-30. Fyffe‘s common-law test applied for employer intentional torts until April 7, 2005, the effective date of
{¶18} In light of this history, the Court in Kaminski observed that: “the General Assembly‘s intent in enacting
{¶ 99} R.C. 2745.01 by no means places Ohio outside the national mainstream relative to employer intentional torts and the exclusivity of the workers’ comрensation remedy. Rather, R.C. 2745.01 appears to harmonize the law of this state with the law that governs a clear majority of jurisdictions.
{¶ 100} “[T]he common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury.” * * * Furthermore, “Ohio is one of only eight states that have judicially adopted a ‘substantial certainty’ standard for employer intentional torts.” (Footnote omitted.) Talik, 117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶ 32, citing 6 Larson‘s Workers’ Compensation Law (2007) 103-10, Section 103.04[1].
Id. at ¶¶99-100. The Court in Kaminski ultimately upheld
{¶20} Stetter v. R.J. Corman Derailment Servs., L.L.C. was before the Ohio Supreme Court upon certified questions of state law from the Federal District Court for the Northern District of Ohio, Western Division, regarding the constitutionality of
“1. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the right to trial by jury?
“2. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the right to a remedy?
“3. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the right to an open court?
“4. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the right to due process of law?
“5. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the right to equal protection оf the law?
“6. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for violating the separation of powers?
“7. Is R.C. § 2745.01, as enacted by House Bill 498, effective April 7, 2005, unconstitutional for conflicting with the legislative authority granted to the General Assembly by § 34 and § 35, Article II, of the Ohio Constitution?
“8. Does R.C. § 2745.01, as enacted by House Bill 498, effective Apri1 7, 2005, do away with the common law cause of action for employer intentional tort?”
Id. at ¶¶7-14. The Court answered all the certified questions in the negative and found
{¶21} Relevant to this appeal, the Court in Stetter, answering certified question number eight (8) in the negative, stated:
{¶ 23} In an argument going to the eighth certified question, petitioners assert that R.C. 2745.01 “does not do away with the common law cause of action for employer intentional tort.” (Emphasis added.) Rather than arguing that R.C. 2745.01 is unconstitutional, petitioners present an elaborate argument that R.C. 2745.01 is actually constitutional when understood in its proper context.
{¶ 24} Petitioners first contend that the portion of R.C. 2745.01(A) regarding the employer‘s intent to injure another is actually a codification of the common-law cause of action developed by this court, in such cases as Blankenship v. Cincinnati Milacron Chems., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, and in Fyffe v. Jeno‘s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108. Petitioners then assert that R.C. 2745.01(A) both acknowledges the existing common-law action for employer intentional torts and creates “a new statutory cause of action for deliberately intended employer intentional torts.” (Emphasis sic.)
{¶ 25} Petitioners accordingly contend that the General Assembly meant to acceрt this court‘s holdings in Brady and Johnson.
{¶ 26} For reasons also discussed in Kaminski, we reject petitioners’ construction of R.C. 2745.01. It was the General Assembly‘s intent in enacting R.C. 2745.01, as expressed particularly in 2745.01(B), to permit recovery for employer intentional torts only when an employer acts with specific intent to cause an injury. See id., --- Ohio St.3d ----, 2010-Ohio-1027, --- N.E.2d ----, at ¶ 56.
{¶ 27} To accept petitioners’ view of the statute, we must ignore the history of employer intentional-tort law in Ohio and the dynamic between the General Assembly‘s attemрts to legislate in this area and this court‘s decisions reacting to those attempts. Instead, we find that R.C. 2745.01 embodies the General Assembly‘s intent to significantly curtail an employee‘s access to common-law damages for what we will call a “substantially certain” employer intentional tort. We do not view the statute as a codification of this court‘s decisions in Brady, 61 Ohio St.3d 624, 576 N.E.2d 722, and Johnson, 85 Ohio St.3d 298, 707 N.E.2d 1107.
2010-Ohio-1029, at ¶¶23-27. Also relevant to the appeal sub judice, the Court in Stetter emphasized throughout its opinion that, by enacting
B. Klaus’ Assignments of Error
{¶22} We now apply the Court‘s decisions in Kaminski and Stetter to Klaus’ assignments of error. For clarity, we elect to address his assignments of error out of the order they apрear in his brief.
THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE ISSUE OF WHETHER R.C. 2745.01 IS AN AFFIRMATIVE DEFENSE WHICH MUST BE RAISED BY UNITED OR ITS DEFENSE IS WAIVED.
{¶23} In his third assignment of error, Klaus argues that
{¶24} As an initial matter, United did not specifically assert
{¶25} An affirmative defense is “a new matter which, assuming the complaint to be true, constitutes a defense to it * * * [and] ‘any defensive matter in the nature of a confession and avoidance. It admits that the plaintiff has a claim (the “confession“) but asserts some legal reason why the plaintiff cannot have any recovery on that claim (the “avoidance“).‘” Baraby v. Swords, 166 Ohio App.3d 527, 2006-Ohio-1993, 851 N.E.2d 559, ¶34, quoting Eulrich v. Weaver Bros., Inc.,
{¶26} Klaus cites this Court‘s decision in Baraby, supra, in support of his argument that
Affirmative defenses must be set forth in a responsive pleading, through a Civ.R. 12(b) motion, or by an amendment under Civ.R. 15. See Eulrich v. Weaver Bros., Inc., 165 Ohio App.3d 313, 2005-Ohio-5891, 846 N.E.2d 542, at ¶ 13. In this case, Lawrence and Carol failed to raise the defense provided by R.C. 1705.48 until they filed their motion for summary judgment. * * * By arguing that R.C. 1705.48 protects them from individual liability, Lawrence and Carol essentially admit that Natalia has a claim (the confession), but assert statutory protection as to why she cannot recover from them individually (the avoidance). Because Lawrence and Carol failed to properly raise the affirmative defense, they have waived it.
{¶27} However,
(A) The debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the limited liability company.
(B) Neither the members of the limited liability company nor any managers of the limited liability company are personally liable to satisfy any judgment, decree, or order of a court for, or are personally liable to satisfy in any other manner, a debt, obligation, or liability of the company solely by reason of being a member or manager of the limited liability company.
(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 tort committed by the
employer during the coursе of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(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.
{¶28} Klaus’ third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED IN FAILING TO APPLY THE REDUCED STANDARD OF “SUBSTANTIAL CERTAINTY” ENACTED IN R.C. 2745.01 [SIC] MOST RECENT AMENDMENT.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED WHEN IT MISAPPLIED CIV.R. 56(C) BECAUSE IT FAILED TO CONSTRUE ALL THE EVIDENCE IN FAVOR OF THE NONMOVING PARTY.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT‘S MOTION FOR SUMMARY JUDGMENT PURSUANT TO CIV.R. 56 BY FINDING THAT PLAINTIFF DID NOT DEMONSTRATE AN ISSUE OF FACT THAT HIS INJURY WAS SUBSTANTIALLY CERTAIN TO OCCUR.
{¶30} In his first and second assignments of error, Klaus argues that summary judgment was inapprоpriate since a question of fact exists concerning whether his injury was substantially certain to occur under
{¶31} As an initial matter, we must reject Klaus’ argument in his fourth assignment of error that
{¶ 56} * * * we agree with the court of appeals that the General Assembly‘s intent in enacting R.C. 2745.01, as expressed particularly in 2745.01(B), is to permit recovery for employer intentional torts only when an employer acts with specific intent to cause an injury, subject to subsections (C) and (D). See Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶ 17 (the General Assembly in R.C. 2745.01 “modified the common-law definition of an employer intentional tort” by rejecting “the notion that acting with a belief thаt injury is substantially certain to occur is analogous to wanton misconduct“). * * *
{¶ 57} This view is supported by the history of employer intentional-tort litigation in Ohio and by a comparison of the current statute to previous statutory attempts. See, e.g., Van Fossen, 36 Ohio St.3d at 108-109, 522 N.E.2d 489, holding that former R.C. 4121.80(G) (which bore a marked resemblance to current R.C. 2745.01(B)) imposed “a new, more difficult statutory restriction upon” an employee‘s ability to bring an employer intentional-tort action; Johnson, 85 Ohio St.3d at 310, 707 N.E.2d 1107 (Cook, J., dissenting) (“By enacting [former] R.C. 2745.01, the General Assembly sought to statutorily narrow [the] common-law definition [of employer intentional tort] to ‘direct intent’ torts only“). Accordingly, our task in this case and in Stetter is to determine whether the statute, insofar as it intends to significantly restrict actions for employer intentional torts, survives scrutiny under certain provisions of the Ohio Constitution.
2010-Ohio-1027, at ¶¶56-57 (emphasis added); Stetter, 2010-Ohio-1029, at ¶26. Likewise, the Court in Stetter noted “* * *
{¶32} Next, we must determine whether the trial court erred in granting summary judgment in light of
{¶33} ”
{¶34} Klaus’ fourth, first, and second assignments of error are, therefore, overruled.
IV. Conclusion
{¶35} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., concurs.
SHAW, J., concurs in Judgment Only.
/jnc