{¶ 2} On May 30, 2002, Nicholas Wilson (the "decedent") was killed when an unsecured concrete and steel construction basket tipped and fell from a dolly as he was moving it during the course of employment. At the time, the decedent was acting as an employee of either appellee Superior Footings Walls, Inc. or its sister company, appellee Superior Foundations, Inc. Appellee Hancock is the president and sole shareholder of each of these companies. Appellant's complaint stated claims of negligence and intentional tort against each of the companies, as well as Hancock in his individual capacity under the theory of piercing the corporate veil.
{¶ 3} Hancock owned a homeowner's insurance policy that had been issued by Citizens. The companies were insured under a commercial general liability insurance policy through Owners. Citizens and Owners each intervened requesting declaratory relief as to their respective duties to defend and indemnify their insureds.
{¶ 4} All of the defendants requested summary judgment as to all claims. The trial court granted summary judgment on all claims except the negligence claim against Superior Foundations, Inc. This appeal follows. On appeal, appellant argues that the trial court erred in granting summary judgment on the claims against appellees. Appellant raises three assignments of error.
{¶ 5} This court reviews de novo a trial court's decision granting summary judgment. Burgess v. Tackas (1998),
{¶ 6} In his first assignment of error, appellant argues that the trial court erred when it determined that there was no genuine issue of material fact as to whether the decedent's death was the result of intentional misconduct of any or all appellees. The trial court determined that appellant had failed to present evidence of a genuine issue of material fact as to appellees' intent. In Fyffe v. Jeno's,Inc. (1991),
{¶ 7} "(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 to 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."
{¶ 8} Because we find it to be dispositive, we focus on the second element of the Fyffe test. The Fyffe court explained the knowledge and substantial certainty requirements as follows:
{¶ 9} "[P]roof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the *4 employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent."Fyffe at paragraph two of the syllabus.
{¶ 10} On summary judgment, the second element of the Fyffe test requires that appellant present evidence of a genuine issue of material fact as to whether the employer had knowledge that harm was substantially certain to occur. Appellant argues that he met this burden because he demonstrated through the affidavit of a professional engineer and the deposition of Hancock that insufficient training and safety equipment were provided to the decedent. Specifically, appellant argues that the defendants did not (1) provide training to the decedent in the proper methods of transporting the baskets or use of head protection; (2) supply adequate strapping to secure baskets to the cart; and (3) provide adequate rigging methods and procedures to prevent accidents.
{¶ 11} However, the record reflects that the decedent was not required to take the cart over the steep apron of the driveway as part of his job. Rather, he was required to take the cart only to a point where the basket could be moved by crane onto a truck. The record reflects that the decedent took the cart further down the drive, toward the steep grade of the apron, than was necessary to complete his job. Under these circumstances, actual knowledge of the substantial certainty of harm is not proven. See Spurlock v. Buckeye Boxes, Inc., Franklin App. No. 06AP-291,
{¶ 12} Furthermore, the record reflects that the decedent actually received the safety equipment appellant alleges was lacking. He was provided access to a hard hat and was instructed to use it. In addition, clamps to secure baskets to the dollies were provided to the decedent. The decedent did not use either type of safety equipment on the day of the *5
accident. The decedent died of a head injury that occurred when he was struck by the falling basket. While the employer's failure to ensure that its employees were using available safety equipment "might indicate negligence, or even recklessness, such actions fall short of the higher standard of substantial certainty. The mere knowledge and appreciation of a risk does not constitute intent." Foust v. Magnum Restaurants,Inc. (1994),
{¶ 13} Under these circumstances, appellant has failed to meet his burden of production to overcome summary judgment on the employer intentional tort claim. For the foregoing reasons, appellant's first assignment of error is overruled.
{¶ 14} In his second assignment of error, appellant argues that the trial court erred when it concluded that no genuine issue of material fact existed as to whether appellant should be able pierce the corporate veil to reach Hancock in his individual capacity. "A fundamental rule of corporate law is that, normally, shareholders, officers, and directors are not liable for the debts of the corporation." Saurber v.McAndrews, Butler App. No. CA2003-09-239,
{¶ 15} As evidence that the Belvedere test has been met, appellant argues that Hancock owns and is the sole officer of both companies, the two companies performed the same work, the companies did not have separate employees at the time of the decedent's death, Hancock operated both companies out of his home, and Hancock purchased liability insurance coverage on his personal homeowner's policy. These facts, however, do not demonstrate that Hancock abused the corporate form. There is no evidence that either of the companies was undercapitalized. There is no evidence that Hancock failed to observe corporate formalities. There is no evidence of commingling of assets. Under these facts, we find that appellant has failed to establish a genuine issue of material fact as to the first prong of the Belvedere test. As such, the trial court did not err when it entered summary judgment in favor of Hancock. Appellant's second assignment of error is overruled.
{¶ 16} In his third assignment of error, appellant argues that the trial court erred in granting immunity to any of the defendants under the workers' compensation immunity provision because there was a genuine issue of material fact as to which company employed *7
the decedent. R.C.
{¶ 17} "Employers who comply with section
{¶ 18} There is no evidence in the record that Superior Footings
Walls, Inc. was not in compliance with R.C.
{¶ 19} We have already determined that liability does not reach Hancock because he is entitled to summary judgment on the issue of piercing the corporate veil. As such, the trial *8 court did not err when it granted summary judgment to Hancock on the negligence claim. The trial court did not grant summary judgment on this issue with respect to Superior Foundations, Inc.
{¶ 20} For the foregoing reasons, appellant's third assignment of error is overruled.
{¶ 21} Judgment affirmed.
*1YOUNG, P.J. and WALSH, J., concur.