Chase v. Brooklyn City School Dist.

• Decision Date: 16 January 2001
• Docket Number: No. 77263.,77263.
• Citation: 141 Ohio App.3d 9,749 NE 2d 798
• Parties: CHASE, Admr., Appellant, v. BROOKLYN CITY SCHOOL DISTRICT et al., Appellees.
• Court: Ohio Court of Appeals

141 Ohio App.3d 9

749 NE 2d 798

CHASE, Admr., Appellant, v. BROOKLYN CITY SCHOOL DISTRICT et al., Appellees.^*

No. 77263.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided January 16, 2001.

COPYRIGHT MATERIAL OMITTED

Wegman, Hessler, Vanderburg & O'Toole, Peter A. Hessler, Nathan A. Hessler and Christopher A. Holecek, for appellant.

David K. Smith, Mathew J. Markling and Scott C. Peters, for appellee Brooklyn City School District.

Porter Wright Morris & Arthur, Robert D. Anderle and Daniel F. Gourash, for appellee Medina Tractor Sales, Inc.

PATRICIA ANN BLACKMON, Judge.

Appellant David A. Chase, as administrator of the estate of Matthew Chase, appeals the trial court's judgment in favor of appellees Brooklyn City School District ("Brooklyn") and Medina Tractor Supply Company ("Medina Tractor") in his action for employer intentional tort, violation of the Ohio Products Liability Act, and various other torts. Chase assigns the following three errors for our review:

"I. The trial court erred, as a matter of law, by granting summary judgment in favor of defendant-appellee, Medina Tractor Sales Company, upon all claims.

"II. The trial court erred, as a matter of law, by granting defendant-appellee Brooklyn City School District's motion to dismiss plaintiff-appellant's employer intentional tort claim.

"III. The trial court erred, as a matter of law, by denying plaintiff-appellant's motion for partial summary judgment as to liability against defendant-appellee, Brooklyn City School District."

Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow.

David Chase brings this appeal after the trial court granted Brooklyn's motion to dismiss, denied Chase's request for summary judgment as to liability, and granted Medina Tractor's summary judgment.

On July 22, 1997, twenty-year-old Matthew Chase was fatally injured when a tractor he was operating overturned, crushing him. Chase was a summer employee of Brooklyn and was using the Ford Model 3400 tractor to remove dirt from a pile located on district property. Matthew's father, David Chase, filed suit as administrator of Matthew's estate against Brooklyn and Medina Tractor, which sold the tractor to Brooklyn. Chase set forth an employer intentional tort claim against Brooklyn and negligence and strict liability claims against Medina Tractor.

Brooklyn filed a motion to dismiss Chase's claims against Brooklyn, arguing that it was immune from liability under R.C. Chapter 2744. Brooklyn further argued that Chase failed to allege sufficient facts to set forth an employer intentional tort action. Specifically, Brooklyn argued that Chase failed to allege sufficient facts to demonstrate that Brooklyn deliberately acted to cause the specific harm to Matthew, that Brooklyn specifically desired to injure Matthew, or the Brooklyn knew that Matthew's injury was certain or substantially certain to result from their actions. They also argued that Chase failed to show that Matthew had not operated the tractor before or that Matthew or anyone else told the district that Matthew was inadequately trained to operate the tractor.

In response to the motion to dismiss, Chase argued that R.C. Chapter 2744's governmental immunity does not shield Brooklyn from civil liability for injuries caused by employer intentional tort. Chase also argued that R.C. 2744 violates equal protection by shielding political subdivisions from civil tort liability for employer intentional torts while permitting actions against political subdivisions for sexual harassment and other intentional torts committed in the workplace. Chase argued that Brooklyn knew that the tractor was dangerous because it was not equipped with rollover protection structure ("ROPS"), a seat belt, or functioning brakes. Chase also argued that Brooklyn's failure to provide Matthew with head protection, proper training, or supervision while allowing him to operate the tractor constituted disregard of a known risk under circumstances where harm to Matthew was certain or substantially certain to occur, thereby rendering Brooklyn liable for an employer intentional tort. Chase also argued that R.C. 2744.09 immunity does not apply to civil liability for a workplace accident caused by an employer intentional tort. Chase filed a motion for partial summary judgment on the issue of liability only as against Brooklyn, arguing that the district knew that assigning an untrained and unsupervised employee to a front-end loader without ROPS and a seat belt was a dangerous task or process. Chase also argued that Brooklyn knew that an accident was substantially certain to occur, but despite such knowledge, required Matthew to engage in the dangerous task of removing dirt from the pile.

Brooklyn opposed Chase's motion for partial summary judgment and filed its own motion for summary judgment. It argued that it had no knowledge that the tractor could tip over when used for the assigned task. Brooklyn argued that it had never had any reports of safety problems with the tractor, it had never used the tractor on hills before, other Brooklyn employees had safely used the tractor on the same hill in the days before Matthew's accident, it knew of no complaints of safety concerns regarding the lack of rollover protection, safety equipment was available to anyone who requested it, and it had no knowledge of brake problems with the tractor.

In support of its motion for summary judgment, Brooklyn repeated its claim of immunity under R.C. Chapter 2744, arguing that none of the statutory exceptions to immunity applied. Brooklyn also claimed that, pursuant to Ventura v. Independence (May 7, 1998), Cuyahoga App. No. 72526, unreported, 1998 WL 230429, and Ellithorp v. Barberton City School Dist. (July 9, 1997), Summit App. No. 18029, 1997 WL 416333, unreported, no cause of action for employer intentional tort exists for work-related injuries.

In opposition, Chase argued that Brooklyn had prior actual knowledge of the exact dangers leading to Matthew's death. Citing deposition testimony of Matthew's supervisor, Robert Marquard, Chase asserted that Brooklyn knew that using the tractor to scrape dirt from the top of the mound was dangerous, Matthew was required to ride the tractor up and onto the apron of the mound, it was impossible to keep the tractor on a flat surface while reaching the dirt on top of the mound, ROPS and a seatbelt were required, personal protective equipment such as a helmet was required, and daily safety inspection of vehicles including the tractor was required.

Chase argued that Ventura and Ellithorp were wrongly decided and that employer intentional tort claims necessarily arise out of the employment relationship. However, the trial court granted Brooklyn's motion to dismiss, concluding that pursuant to Ventura, Brooklyn was immune from liability under R.C. Chapter 2744.

Medina Tractor also filed a motion for summary judgment, arguing that the tractor was built in 1967 and, as manufactured, did not have ROPS. Medina Tractor argued that the prevailing standards of the industry at that time did not require a tractor to have ROPS. Medina Tractor argued that, although the Occupational Safety and Health Administration instituted a rule in 1976 requiring employers to equip tractors used by employees with rollover protection, the regulation excluded tractors manufactured before July 1, 1969. In 1985, the American Society of Agricultural Engineers instituted a requirement that all new tractors be sold with rollover protection. However, the regulation did not require existing tractors to be retrofitted with ROPS.

Although Medina Tractor salesman Ward Schray could not specifically recall whether he told anyone at Brooklyn about the availability of ROPS at the time the tractor in question was sold, he stated that it was his standard practice to recommend ROPS.

Medina Tractor also argued that it could not be held strictly liable for Matthew's injuries because it was not a manufacturer, but was, at most, a supplier whose liability is limited by R.C. 2307.78 to instances of negligence and misrepresentation. Medina Tractor further argued that it had no duty to retrofit the tractor with ROPS, that it had no duty to warn because the tractor was not defective as originally sold, and because the absence of ROPS and the danger of tip-over was open and obvious. They also alleged that Chase did not show that any failure to warn caused the accident or that the tractor failed to conform to any representations made by Medina Tractor.

In opposition, Chase argued that Medina Tractor was an authorized Ford dealer and is strictly liable as the manufacturer of a defective tractor. Chase argued that a seller of used equipment can be subject to strict product liability if it failed to maintain the product after it came into possession of and before it left the possession of the supplier and the alteration, modification, or failure to maintain the product made it defective. Chase further argued that, in 1982, Ford instructed its dealers to warn users regarding lack of ROPS or to issue safety instructions or warnings before selling used tractors.

Because Brooklyn's Joseph Fleming testified that he could not remember if Brooklyn was informed about the need to install ROPS, Medina Tractor argued that there was no proof that it did not warn Brooklyn of the availability of ROPS.

Medina Tractor also argued that the Ford documents relied upon by Chase demonstrated only that Medina Tractor knew about ROPS and that Ford suggested to dealers various methods to promote ROPS and to memorialize purchasers' refusal to purchase such systems. Medina Tractor further argued that it was not a manufacturer and that it had no duty to retrofit the tractor with a ROPS.

Chase countered by arguing that a possible oral discussion about ROPS is irrelevant, that warnings must be communicated...