Breitenbach v. Double Z Constr. Co.

• Decision Date: 24 March 2016
• Docket Number: No. 15 CA 53.,15 CA 53.
• Citation: 63 N.E.3d 498
• Parties: Tiffany N. BREITENBACH, et al., Plaintiffs–Appellants v. DOUBLE Z CONSTRUCTION CO., LLC, Defendant–Appellee.
• Court: Ohio Court of Appeals

63 N.E.3d 498

Tiffany N. BREITENBACH, et al., Plaintiffs–Appellants

v.DOUBLE Z CONSTRUCTION CO., LLC, Defendant–Appellee.

No. 15 CA 53.

Court of Appeals of Ohio, Fifth District, Licking County.

March 24, 2016.

Raymond J. Schmidlin, Jr., Timothy L. McGarry, Henderson, Schmidlin & McGarry, Highland Heights, OH, for Plaintiffs–Appellants.

Steven Carlino, David T. Patterson, Weston Hurd, Columbus, OH, for Defendant–Appellee.

WILLIAM B. HOFFMAN, P.J., JOHN W. WISE, J., and CRAIG R. BALDWIN, J.

OPINION

WISE, J.

{¶ 1} Plaintiffs–Appellants, Tiffany Breitenbach, Administratrix of the Estate of Micah Montgomery, Deceased, Abbigail Montgomery, a minor, and Reid Montgomery, a minor, appeal the June 29, 2015, decision of the Licking County Court of Common Pleas granting summary judgment in favor of Appellee Double Z Construction Co., LLC.

STATEMENT OF THE CASE AND FACTS

{¶ 2} This appeal arises from a workplace intentional tort claim filed in 2014 by Plaintiffs–Appellants, Tiffany Breitenbach, Administratrix of the Estate of Micah Montgomery, Deceased, Abbigail Montgomery, a minor, and Reid Montgomery, a minor, after Micah Montgomery (“Montgomery”) sustained fatal injuries on April 12, 2013, while working as a construction worker for Defendant–Appellee Double Z Construction Co., LLC (“Double Z”). Montgomery was fatally injured when a steel beam struck the construction boom lift in which he was an occupant, causing him to be ejected and fall to the ground.

{¶ 3} The relevant facts are as follows:

{¶ 4} Micah Montgomery worked for Double Z Construction Co., LLC in its bridge construction operations. On the day Montgomery was killed, he was working as a laborer on a project which involved demolition work of a vehicle traffic bridge on Interstate 70 eastbound in Licking County near Newark, Ohio. (Chandler depo. at 20; Osborne depo. at 17).

{¶ 5} The other employees who were working at the job site at the time of the incident are as follows: Gary C. Stanley (“Stanley”), Superintendent; Jason Chandler, Foreman; Bruce Osborne, ground man; Dwayne Cutler, laborer; Randall Ralston, operator; Jeremy Warner, operator; Joe Tackett, laborer; Mike Neal, crane operator.

{¶ 6} The first step in this process was removing the concrete decking and parapets from the steel frame of the bridges. (Deposition of Dwayne Cutler (“Cutler depo.”) at 15; Guzzo depo. at 10–11). Once the concrete is removed, the process of removing the exposed steel beams is begun. (Chandler depo. at. 17). An aerial lift is used to hoist personnel to perform cutting and rigging of the concrete. (Guzzo depo. at 12).

{¶ 7} Montgomery was operating an aerial lift and working directly with Michael Neal (“Neal”), the crane operator, during the preparation to remove a 60–foot I-beam used in part to support the overpass/bridge. (Chandler depo. at 17, 26; Cutler depo. at 13, 23; Neal depo. at 17, 19; Record 24, Osborne depo. at 21, 28). During the removal of the concrete, Osborne was in the aerial lift with Montgomery. However, prior to the steel beams being removed, Osborne left the lift, and Montgomery was alone in the lift. (Guzzo Dep. at 12).

{¶ 8} This was the first I-beam removed on this job site. (Chandler depo. at 17; Ralston depo. at 12). Montgomery used an oxygen/acetylene torch in order to cut through the I-beam, and to burn two holes in order to rig the beam to be moved to the ground by the crane. (Cutler depo. at 23; M. Guzzo depo. at 12; Osborne depo. at 21; Tackett depo. at 15; Ralston depo. at 10). The holes for the rigging should have been spaced an identical distance from the center of the beam. (Osborne depo. at 24; Tackett at 19). For unknown reasons, Montgomery improperly spaced the holes approximately six (6) feet from the center on one side and eighteen (18) feet from center on the other side. (Chandler depo. at 26; Cutler depo. at 33; M. Guzzo depo. at 21; Osborne depo. at 24, 34; Ralston depo. at 19).

{¶ 9} Montgomery then secured the I-beam to two 16–foot long wire rope slings. The rope slings were then connected to the crane's main hook, which was equipped with a spring-loaded, self-closing metal latch. (See Affidavit and Report of Matthew R. Gardiner, P.E., attached to Defendant–Appellee's Motion for Summary Judgment).

{¶ 10} After completing the rigging and connections between the crane and the beam, Montgomery retracted the telescoping aerial lift in order for Neal to begin lowering the beam to the ground. Sometime after the pick began, Montgomery swung his man-lift bucket back toward the beam. (Chandler depo. at 17, 22; M. Guzzo depo. at 12; Neal depo. at 33).

{¶ 11} During the crane's operation, with the 60–foot I-beam, the sling cable on the side where Montgomery was positioned in the aerial lift, slid out of the crane's hook, causing one side of the steel I-beam to fall and come in contact with the aerial lift where Montgomery was located. (Neal depo. at 31; Osborne depo. at 24; Tackett depo. at 17, 35; Ralston depo. at 15; Warner depo. at 14, 19). This caused the basket to almost completely break away from the aerial lift's boom. (Cutler depo. at 20; Ralston depo. at 23). The aerial lift crashed to the ground below along with Montgomery, resulting in crushing injuries to Montgomery's back and neck and near instantaneous death. (Cutler depo. at 21).

{¶ 12} On February 20, 2014, Tiffany Breitenbach, as Administratrix of the Estate of Micah Montgomery, Deceased, filed a Complaint alleging workplace intentional tort in the Pike County Court of Common Pleas. Abbigail Montgomery and Reid Montgomery, the minor children of Micah Montgomery, were also named as Plaintiffs in the Complaint. The case was ultimately transferred to Licking County Common Pleas Court.

{¶ 13} The Complaint alleged an employer intentional tort claim against Double Z Construction, Co., LLC. Appellant alleged in its Complaint that Double Z required Montgomery to perform work: 1) in the absence of required safety guards and safety devices; and 2) while intentionally and deliberately exposed to hazardous and dangerous processes, procedures, instrumentalities and conditions of which Double Z had knowledge. (Complaint at ¶ 14).

{¶ 14} Double Z's insurers, Valley Forge Insurance Co. and Continental Casualty Insurance Co., sought and obtained leave to intervene.

{¶ 15} On January 30, 2015, Appellee Double Z filed a Motion for Summary Judgment.

{¶ 16} On April 14, 2015, Appellants filed a Brief in Opposition to Appellee's Motion for Summary Judgment.

{¶ 17} On April 24, 2015, Appellee filed its Reply in Support of Motion for Summary Judgment.

{¶ 18} On May 8, 2015, Appellants filed their Sur Reply.

{¶ 19} By Judgment Entry dated June 29, 2015, the trial court granted Appellee's Motion for Summary Judgment, finding “no evidence ... that defendant deliberately intended to injure Montgomery or any other employee.”

{¶ 20} Appellants now appeal, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶ 21} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO DEFENDANT DOUBLE

Z CONSTRUCTION CO., LLC WHEN PLAINTIFFS WERE ENTITLED TO A PRESUMPTION THAT DOUBLE Z ACTED WITH THE DELIBERATE INTENT TO INJURE THE DECEASED WHEN DOUBLE Z FAILED TO MAKE AN EQUIPMENT SAFETY GUARD AVAILABLE FOR USE. OHIO REV. CODE § 2745.01(C).

{¶ 22} II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO DOUBLE Z WHEN MATERIAL ISSUES OF FACT REMAINED REGARDING WHETHER DOUBLE Z ACTED WITH DELIBERATE INTENT TO INJURE THE DECEASED BY KNOWINGLY PERFORMING AN UNSAFE LIFT OF A STEEL BEAM WHILE KNOWING THAT THE DECEASED WAS IN THE FALL ZONE OF THAT BEAM. OHIO REV. CODE § 2745.01(A).”

Summary Judgment Standard of Review

{¶ 23} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleading, 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 from the evidence or stipulation, 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 the party's favor.

{¶ 24} The moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court, which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot rest on the allegations or denials in the pleadings, but must set forth “specific facts” by the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

{¶ 25} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

I., II.

{¶ 26} In both of their Assignments of Error, Appellants argue that the trial court erred in granting summary judgment in this matter. We disagree.

{¶ 27} An intentional tort involves an act committed with the specific intent to injure or with the belief that injury is substantially certain to occur. Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), citing 1 Restatement of the Law 2d, Torts, Section 8A (1965). When the employer proceeds despite knowledge that injuries are certain or substantially...