KOSSI LOGOSSOU, Plaintiff-Appellant, vs. ADVANCEPIERRE FOODS, INC., ASCENT SAFETY SERVICES, LLC, and MATRIX CLAIMS MANAGEMENT, INC., Defendants-Appellees.
APPEAL NO. C-170672
TRIAL NO. A-1703513
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
February 6, 2019
2019-Ohio-363
DETERS, Judge.
Civil Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Reversed and Cause Remanded
Frost Brown Todd LLC, James D. Schoeny and Jeffrey N. Lindemann, for Defendant-Appellee AdvancePierre Foods, Inc.,
Wood & Lamping, LLP and Andre Kaake, for Defendants-Appellees Ascent Safety Services, LLC, and Matrix Claims Management, Inc.
OPINION.
{¶1} Plaintiff-appellant Kossi Logossou appeals the trial court‘s judgment, dismissing pursuant to
{¶2} After reviewing the record and the law, we conclude that Logossou pleaded sufficient facts to state a negligent-inspection claim against Ascent and Matrix and a claim for an intentional tort against AdvancePierre. We, therefore, reverse the trial court‘s judgment and remand the matter to the trial court for further proceedings consistent with this opinion and the law.
Background
{¶3} On August 26, 2015, Logossou, an employee at AdvancePierre, was using his hands to remove meat from the blades of a mixing machine when a co-worker activated the power to the machine causing severe injury to his hand. Logossou filed a complaint against AdvancePierre and Ascent. He asserted negligence and employer-intentional-tort claims against AdvancePierre and a negligent-inspection claim against Ascent. AdvancePierre filed a
Assignments of Error
{¶5} In two assignments of error, Logossou contends the trial court erred by dismissing his amended complaint for failing to state a claim for negligent inspection against Ascent and Matrix and a claim for an intentional tort against AdvancePierre.
Standard of Review
{¶6} We review de novo a decision granting a motion to dismiss under
{¶7} The Ohio Supreme Court has established a heightened pleading standard for employer-intentional-tort claims. Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991). To survive a
Negligent-Inspection Claim
{¶8} In his first assignment of error, Logossou argues the trial court erred by dismissing his amended complaint when he had pleaded sufficient facts against Ascent and Matrix to state a claim for negligent inspection.
{¶9} We initially note that in their motion to dismiss and their appellate brief Ascent and Matrix argue that the heightened fact-pleading standard in Mitchell and State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 544 N.E.2d 639 (1989), applies to Logossou‘s negligent-inspection claim. But a negligent-inspection claim does not fall within this exception to the general rule of notice pleading, so the heightened fact-pleading premise underlying Ascent and Matrix‘s motion is incorrect. See State ex rel. Jones v. City of Athens, 4th Dist. Athens No. 16CA15, 2017-Ohio-7370, ¶ 50. Consequently, we analyze his negligent-inspection claim under the notice-pleading standard. Compare Bugg v. Am. Std. Inc., 8th Dist. Cuyahoga No. 84829, 2005-Ohio-2613 (applying the heightened standard of review set forth in Mitchell and Capots to dismiss a negligent-inspection claim).
{¶11} Logossou further alleged that Ascent and Matrix owed him a duty of care because it was foreseeable that he would be injured if Ascent and Matrix did not properly inspect the mixer and ensure it complied with all applicable safety standards and regulations, including the appropriate guarding. Ascent and Matrix failed to ensure the mixer was safe and that it complied with all safety standards and regulations, including the appropriate guarding, and as a direct and proximate result, he was severely injured, requiring amputation of three fingers.
{¶12} Logossou‘s negligent-inspection claim against Ascent and Matrix is premised on 2 Restatement of the Law 2d, Torts, Section 324A (1965), “Liability to Third Person for Negligent Performance of Undertaking,” which provides, in pertinent part:
One who undertakes gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if * * * (b)
he has undertaken to perform a duty owed by the other to the third person * * *.
{¶13} Here, the facts as pleaded in his complaint and the reasonable inferences drawn therefrom are sufficient to state a claim for relief under 2 Restatement, Section 324(A)(b). Stevens v. Jeffrey Allen Corp., 131 Ohio App.3d 298, 304, 722 N.E.2d 533 (1st Dist.1997); Root v. Stahl Scott Fetzer Co., 2017-Ohio-8398, 88 N.E.3d 980, ¶ 35 (8th Dist.). Therefore, we sustain the first assignment of error.
Intentional-Tort Claim
{¶14} In his second assignment of error, Logossou contends the trial court erred by dismissing for failure to state a claim the intentional-tort claim in his amended complaint.
{¶15} In order to state a viable intentional-tort claim, a plaintiff must allege with particularity that the employer committed the tortious act with a deliberate intent to injure or a belief that injury was substantially certain to occur.
{¶16} And where a plaintiff sufficiently alleges that the employer deliberately removed an equipment safety guard under
{¶17} Logossou contends that the allegations in his amended complaint are sufficient under the heightened pleading standard articulated in Mitchell and its progeny to set forth an intentional tort. We agree.
{¶18} Logossou has pleaded sufficient facts to set forth a claim for an intentional tort under
7. AdvancePierre had actual knowledge that point of operation guards were required by federal regulations. Specifically,
29 U.S.C. § 1910.212(a)(1) provides: “One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are barrier guards, two-hand tripping devices, electronic safety devices, etc.”8. AdvancePierre had actual knowledge that barrier guards preventing body parts from coming into contact with the rotating blades and safety sensors preventing operation of the machine if loading buckets are not properly in place would prevent accidental entry into the point of operation.
9. Based on knowledge of industry standards and applicable regulations, AdvancePierre had actual knowledge that the line 1 mixer was not equipped with the guards described above, and that operating the mixer without such guards was substantially certain to result in injury and/or amputation to the operator of the mixer.
10. Notwithstanding this knowledge, Defendant AdvancePierre knowingly and deliberately removed the guards described above from the mixer and failed to ensure that the mixer was equipped with the guards above as required by law.
11. Despite knowledge that operators of the mixer were substantially certain to be injured if required to operate the mixer from which guards had been deliberately removed, AdvancePierre required Plaintiff to operate the mixer and intentionally exposed him to the known hazardous condition. Specifically, AdvancePierre required Plaintiff to manually remove the last of the product from the mixer, as he was trained and instructed. To do so, he placed his hand into the operating area of the machine where the blades were located. Because AdvancePierre knowingly removed the guards described above, Plaintiff was able to reach into the area of the machine in which the blades rotated while the machine was energized and capable of operation. While Plaintiff was doing so, and without Plaintiff‘s knowledge, a coworker turned the machine on, causing severe injury to Plaintiff‘s hand, including the amputation of three
fingers. Had the machine contained the appropriate guarding, as required by law, Plaintiff would have been protected from the hazard that resulted in the amputation.
{¶19} Because Logossou‘s complaint states a factual basis for the assertion that an equipment safety guard was deliberately removed from the mixing machine by AdvancePierre, it is sufficient to satisfy the heightened pleading standard under Mitchell. See Mizway v. Clark, 183 F.Supp.2d 1003, 1004 (N.D.Ohio 2002) (holding that facts showing the “deliberate removal of a safety device intended to avoid injury” satisfied the heightened pleading standard for an employer-intentional-tort claim); Compare Downey v. Reich Installation Servs., Inc., N.D.Ohio No. 3:09CV263, 2009 WL 2922262, *2 (Sept. 8, 2009) (holding that the employee failed to state a claim for an intentional tort where he “failed to allege any facts that the employer had actually violated the regulations or removed a safety device“).
{¶20} As a result, the trial court erred by granting AdvancePierre‘s motion to dismiss the claim pursuant to
Conclusion
{¶21} Having sustained both assignments of error, we reverse the judgment of the trial court and remand the matter for further proceedings in accordance with this opinion and the law.
Judgment reversed and cause remanded.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry this date.