BRET E. THOMPSON, PLAINTIFF-APPELLANT, -аnd- OHIO BUREAU OF WORKERS COMPENSATION, PLAINTIFF-APPELLEE, v. OBERLANDERS TREE & LANDSCAPE, LTD., ET. AL., DEFENDANTS-APPELLEES.
CASE NO. 9-15-44
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
March 21, 2016
2016-Ohio-1147
ROGERS, J.
Appeal from Marion County Common Pleas Court, Trial Court No. 13CV0401. Judgment Reversed and Cause Remanded.
Jami S. Oliver for Appellant
Bruce A. Curry for Defendants-Appellees
{¶1} Although originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.
{¶2} Plaintiff-Appellant, Bret Thompson, appeals the judgment of the Court of Common Pleas of Marion County awarding Defendants-Appellees, Oberlander‘s Tree and Landscape LTD. (“the Company“), Roger Oberlander, and Randy Jackson (collectively “Appellees“), summary judgment.1 For the reasons that follow, we reverse the judgment of the trial court granting summary judgment to the Company.
{¶3} The following facts are undisputed. On October 6, 2011, Thompson injured his left hand while using a chainsaw to cut a tree while working for the Company. The chainsaw Thompson was using did not have the required safety hand guard to protect the operator from “kickbacks.” A “kickback” happens “when the tip of a chainsaw blade hits an obstruction, causing the blade to kick back or kick up in the air.” Appellees’ Brief, p. 5. When a chainsaw experiences a “kickback,” the chainsaw‘s brake will be triggered once anything makes contact with the hand guard.
{¶5} The Appellees filed an answer on July 31, 2013, denying the allegations alleged in the complaint.
{¶6} The Appellees’ insurance company, United Ohio Insurance Company (“United“), filed a motion to intervene as a party plaintiff, which included its complaint against the Appellees. United‘s motion was granted by the trial court on November 13, 2013. The Appellees filed their answer to United‘s complaint on February 14, 2014.
{¶7} On March 26, 2014, the Appellees filed a motion to join the Ohio Bureau of Workers Compensation (“the Bureau“) as a subrogated party because it was the real party in interest with respect to some of Thompson‘s claims. The motion was granted on July 21, 2014.
{¶8} On October 3, 2014, United filed a motion for summary judgment arguing that it did not owe the Appellees a duty to either defend or indemnify them in the case.
{¶9} The Bureau filed its intеrvening complaint against the Appellees on October 10, 2014. In its complaint, the Bureau argued that it was entitled to relief
{¶10} The trial court granted United‘s motion for summary judgment on December 19, 2014.
{¶11} The Appellees filed a motion for summary judgment as to Thompson‘s complaint on July 15, 2015. In its motion, the Appellees argued that Thompson had failed to present any evidence as to how the Appellees intended to injure Thompson or how they deliberately removed a safety guard. In support of their motion, the Appellees attached affidavits of Jackson and Oberlander.
{¶12} Thompson filed his memorandum in opposition to the Appellees’ motion on August 7, 2015. Thompson argued that the Appellees deliberately removed the hand guard, which constituted an equipment safety guard, by deliberately deciding not to repair or replace the hand guard on the chainsaw Thompson was using when he was injured. In support of his motion, Thompson attached affidavits of two former employees of the Company, Roger Bowman and Mark Saum, as well as the deposition transcripts of himself, Jackson, and Oberlander.
{¶13} On August 25, 2015, the Appellees filed their reply to Thompson‘s memorandum.
{¶15} Thompson filed this timely appеal, presenting the following assignment of error for our review.
Assignment of Error
THE TRIAL COURT ERRED IN FINDING, AS A MATTER OF LAW, THAT AN EMPLOYEE MUST PROVE THAT THE EMPLOYER “SPECIFICALLY INTENDED TO INJURE THE PLAINTIFF” PURSUANT TO
R.C. 2745.01(A) WHERE PLAINTIFF-APPELLANT SUBMITS EVIDENCE UNDER SUBSECTION (C) FROM WHICH REASONABLE MINDS COULD FIND A “DELIBERATE REMOVAL OF A SAFETY GUARD” IN AN INTENTIONAL TORT CASE.
{¶16} In his sole assignment of error, Thompson argues that the trial court erred by granting the Company‘s motion for summary judgment. We agree.
{¶18} The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). In doing so, the
{¶19}
(A) In an action brought against an employer by an employee, * * * for damages resulting from an intentional tort committed by the employer during the course 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.
(C) Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury * * * occurs as a direct result.
Id.
{¶20} Within the last few years, the Supreme Court of Ohio has defined both “equipment safety guard” and “deliberate removal.” See Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 26, 30. The court first found that an “equipment safety guard” is ” ‘a device that is designed to shield the
{¶21} Next, the Hewitt court found that an employer deliberately removes a safety guard “when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” Id. at ¶ 30. In doing so, the court noted that “[a]lthough ‘removal’ may encompass more than physically removing a guard from equipment and making it unavailable, such as bypassing or disabling the guard, an employer‘s failure to train or instruct an employee on a safety procedure does not constitute the deliberate removal of an equipment safety guard.” Id. at ¶ 29, citing Fickle at ¶ 45.
{¶22} To support its finding that “removal” constitutes more than the physical removing of a safety guard, the Hewitt court also cited the Seventh District‘s decision in Wineberry v. N. Star Painting Co., 7th Dist. Mahoning No. 11 MA 103, 2012-Ohio-4212. In Wineberry, an employee was injured when he fell 15 feet from some scaffolding that had buckled. Id. at ¶ 4. While falling, the employee sandblasted his arm. Id. The employee argued that he would not have fallen had his employer installed guardrails on the scaffolding. Id. at ¶ 17. Further, he argued that the decision not to place guardrails on the scaffolding constituted a deliberate removal. Id. at ¶ 28. To an extent, the court agreed and
{¶23} Although Wineberry was decided two months prior to Hewitt, the Hewitt court did not find it inconsistent with its decision. Further, the logic behind Wineberry is inherent in the Hewitt court‘s definition of “deliberate removal,” namely, “when an employer makes a deliberate decision to * * * otherwise eliminate that guard from the machine.” Hewitt, 2012-Ohio-5317 at ¶ 30. Thus, Wineberry remains good law, although not binding on this court.
{¶24} After the court‘s decision in Hewitt, the Supreme Court of Ohio decided Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685. In Houdek, the court found that in the absence of a deliberate removal of an equipment safety guard, an employee must establish that his employer acted with the specific intent to injure him. Id. at ¶ 25. “The Houdek court rejected the argument that the intent inquiry was an objective one satisfied by an employer‘s mere knowledge of a hazardous condition.” Broyles v. Kasper Machine Co., 517 Fed.Appx. 345, 353 (6th Cir.2013), citing Houdek.
{¶26} In support of its argument, the Company cites Houdek for the proposition that “[e]ven if an employer places an employee in a рotentially dangerous situation, there must also be evidence that either management or the supervisor deliberately intended to injure the employee for
{¶27} In Houdek, the court addressed the issue of “whether a claimant bringing an employer intentionаl tort claim is required to prove that the employer acted with a deliberate intent to injure.” 2012-Ohio-5685 at ¶ 13. Although
{¶28} The court applied its finding to the facts in that case and found that the employee had failed to present any evidence that the employer specifically intended to injure him. Id. at ¶ 26.
{¶29} The Houdek court‘s only analysis of
{¶30} Thus, Houdek does not support the statement that
{¶31} Next, we turn our attention to whether Thompson‘s argument withstands scrutiny. Neither party disputes whether the hand guard is an equipment safety guard, as the hand guard is ” ‘a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.’ ” Hewitt, 2012-Ohio-5317 at ¶ 26, quoting Fickle at ¶ 43. If a kickback occurs, causing the operator to lose control of the chainsaw, the hand guard triggers the saw‘s brake when contacted. This act prevents the operator from being cut by the
{¶32} To answer this question, we look to the Seventh District‘s opinion in Wineberry for guidance. The Wineberry court addressed a very similar question to the one asked here, which was whether the failure to replace safety guardrails on scaffolding perches constituted the deliberate removal of a safety guard. The court answered in the affirmative, finding “that deliberate removal not only encompasses removing safety equipment, but also the failure to attach safety equipment provided by the manufacturer.” 2012-Ohio-4212 at ¶ 38. The court reasoned, “If a machine is shipped not fully assembled and the employer does not install the guard that comes with the machine, under a narrow construction it might not be considered deliberate removal since the guard was not initially attached.” Id. Therefore, the court found that a broader interpretation of the term “remove” was required. This definition was not without its limits though, as the court required that tо have deliberate removal the safety guard must be required to be in place by the manufacturer or by law/regulation. See id. at ¶ 39-40. The court found that the guardrails were not provided by the manufacturer nor were they required by any law or regulation. Id. at ¶ 39.
{¶33} As noted supra, Wineberry was decided before the Supreme Court of Ohio defined “deliberate removal” in Hewitt. Whereas the court in Hewitt found
{¶34} Given the Supreme Court of Ohio‘s broаd definition of “deliberate removal” and the similarities in Wineberry, we find that an employer deliberately removes an equipment safety guard when it makes a deliberate decision not to either repair or replace an equipment safety guard that is provided by the manufacturer and/or required by law or regulation to be on the equipment. This type of conduct goes beyond the realm of negligence or recklessness becаuse the employer‘s careful and considered decision not to replace or repair a broken or missing guard is essentially “eliminat[ing the] guard.” Id. There could be several reasons why an employer may wish not to replace or repair a guard, be it financial (does not want to pay to have the guard fixed or replaced), business-related (slows down production), or several other reasons.
{¶36} Next, we look to the facts as provided in the record to determine if a genuine issue of material fact exists as to whether Thompson established the rebuttable presumption under
{¶37} First, the hand guard at issue was provided by the manufaсturer and required to be on the chainsaw by both state and federal regulations. The saw used in this case was a Stihl 066. Portions of the saw‘s owner‘s manual were included as three exhibits to Jackson‘s deposition. Specifically, the manual states “Warning! Never operate your chainsaw without a front hand guard.” Jackson
{¶38} Not only is the hand guard required to be on the saw by the industry standards and the manufacturer, but it is also required by Ohio regulations.
{¶39} Finally, federal regulations require that all chainsaws have a front hand guard in place.
{¶40} Second, the Company was aware that the chainsaw that injured Thompson was lacking a hand guard before Thompson was injured. Thompson testified in his deposition that he told management, specifically Oberlander and Jackson, on at least two separate occasions that the hand guard was either broken or missing and needed repaired or replaced. Additionally, Thompson produced the affidavits of Saum and Bowman who testified that they both had complained to management about saws with broken or missing hand guards. Bowman specifically remembers Thompson telling management about the saw missing the hand guard.
{¶41} Third, when viewed in a light most favorable to Thompson, Thompson provided evidence that the Company made a deliberate deсision not to repair or replace the hand guard. In their affidavits, both Bowman and Saum stated that employees were told to either use the saws that were provided by the Company or they would get fired. Thompson testified that the saw was missing the hand guard from the first day he started working for the Company. More evidence that the Company made a deliberate decision not to replace or repair the hand guard comes from the fact that the same saw that injured Thompson was sent
{¶42} Therefore, we find that Thompson has presented sufficient evidence to establish the presumption of intent to injure under
{¶43} The question then becomеs whether the Company presented sufficient evidence to rebut the presumption. The only evidence that the Company produced were the affidavits of Jackson and Oberlander. In the affidavits, both deny any intent to injure Thompson. However, “self-congratulatory affidavits,” where the defendants deny any intent to injure, standing alone are not sufficient to rebut the presumption in
{¶44} Accordingly, we sustain Thompson‘s sole assignment of error.
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
Judgment Reversed and Cause Remanded