Cox v. American Aggregates Corp.

• Citation: 580 N.E.2d 679
• Decision Date: 28 October 1991
• Docket Number: No. 30A01-9105-CV-159,30A01-9105-CV-159
• Parties: 1992 O.S.H.D. (CCH) P 29,559 Earl R. COX and Allieson L. Cox, Appellants-Plaintiffs, v. AMERICAN AGGREGATES CORPORATION; Michael Harmon; William Buck; Gary Wesley; Alan Whitlock and Acetylene Products, Inc., Appellees-Defendants.
• Court: Court of Appeals of Indiana

Page 679

580 N.E.2d 679

1992 O.S.H.D. (CCH) P 29,559

Earl R. COX and Allieson L. Cox, Appellants-Plaintiffs, v. AMERICAN AGGREGATES CORPORATION; Michael Harmon; William Buck; Gary Wesley; Alan Whitlock and Acetylene Products, Inc., Appellees-Defendants.

No. 30A01-9105-CV-159.

Court of Appeals of Indiana First District.

Oct. 28, 1991.

Vernon J. Petri, Vernon J. Petri P.C., Indianapolis, for appellants-plaintiffs.

Bruce L. Kamplain, Norris, Choplin & Johnson, Indianapolis, for American Aggregates, Michael Harmon, William Buck, Gary Wesley and Alan Witlock.

James E. Rocap, Jr., Rocap, Witchger & Threlkeld, Indianapolis, for Acetylene Products, Inc.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Earl R. Cox ("Cox") and Allieson L. Cox ("Allieson") appeal grants of summary judgment in favor of Acetylene Products, Inc. ("API") and American Aggregates Corporation, Michael Harmon, William Buck, Gary Wesley and Alan Whitlock (collectively referred to as "AAC") in an action for personal injuries resulting from Cox's exposure to toxic chemicals during his employment at AAC. We affirm in part, reverse in part and remand.

ISSUES ¹

We restate the issues presented for appeal as follows:

1. Did the trial court properly grant summary judgment to Cox's employer AAC and co-employees, thus leaving Cox's sole remedy as to those parties within the purview of either Indiana's Worker's Compensation Act ² or Occupational Diseases Act ³?

2. Did the trial court properly grant summary judgment to API?

3. Did the trial court properly admit the affidavit of Dr. Alvin Bronstein?

FACTS

Cox was hired by AAC in February of 1986. Cox initially began work as a laborer. On March 21, 1986 an opening for the welder position at the primary crusher was posted; Cox signed up and was awarded the position as primary welder. ⁴ During the time Cox was welding, Michael Harmon was the plant manager of AAC's quarry and William Buck, Gary Wesley, and Alan Whitlock were foremen.

In April of 1986, Cox began welding at the primary crusher using Hardalloy 118 welding rods. Cox had not used this type of welding rods prior to his employment with AAC and was unaware of any hazards associated with their use. Cox welded in a confined, poorly ventilated area that was below grade. AAC initially provided Cox with two box fans, which he used primarily for comfort rather than ventilation. In May of 1986, Cox reported to Harmon, Buck, and Wesley that he was experiencing breathing difficulty, coughing, and dizziness problems while welding.

On May 28, 1986, Wesley brought a new box of welding rods to Cox. This new box of rods was in the same type of canister as the welding rods that Cox had used in the past; however, this canister had a label on it. After reading the label, Cox learned that the welding rods were manufactured by Teledyne-McKay and the rods emitted manganese and chromium fumes, which can cause lung damage; thus, adequate ventilation should be used. Cox immediately stopped welding and contacted Wesley asking if the Poison Control Center could be notified. The Poison Control Center was contacted the next day and AAC was informed that Cox needed to be seen at the hospital immediately. On May 30, 1986, Cox visited Dr. Gard, at Methodist Hospital Health Care Center and was instructed not to weld for the next five (5) to seven (7) days.

On June 2, 1986, Harmon called Damien Kotecki at Teledyne-McKay inquiring about the appropriate respirator to use with the Hardalloy 118 welding rods and was told that a passive or an air supplied respirator could be used, depending on the conditions. The next day, Cox also contacted Kotecki. Cox informed Kotecki about the welding conditions, the use of the Hardalloy 118 welding rods and symptoms he was experiencing. Kotecki gave Cox advice similar to that he gave Harmon. In addition, Kotecki drafted a letter to Harmon enclosing a product label, a Material Safety Data Sheet and a Health and Safety Bulletin applicable to the Hardalloy 118 welding rods. The letter also reiterated that a dust respirator capable of handling particles smaller than one (1) micron should be used, either a passive or air supplied respirator was appropriate, and adequate ventilation or exhaust equipment should be provided.

On June 3, 1986, AAC purchased welding fume respirators ("paper masks") manufactured by Minnesota Mining and Manufacturing Company ("3M"). Wesley provided Cox with paper masks for his use when welding; however, Wesley did not provide Cox with the plastic bags the masks were packaged in and that contained warning and instructions on the paper masks' use. Cox used the paper masks, along with the box fans for ventilation, until June 10, 1986. On June 10, 1986, Mine Safety During approximately the same time that AAC purchased the 3M paper masks, AAC also purchased the Glendale-2022 respirator ("GR-2022") from API. Cox began welding with the GR-2022 in mid-June; at this time Cox also was provided an exhaust fan and a hose. However, Cox continued to experience medical difficulties, and on July 30, 1986, Harmon asked Cox if he would train a replacement welder and take an alternate job.

Health Association ("MSHA") inspector, George Lalumondiere, inspected AAC's quarry. Lalumondiere reported that at the primary crusher there was inadequate ventilation, the local exhaust system had been removed, and that Cox was wearing a respirator not approved for welding fumes. The next day, Lalumondiere told Cox that Harmon was ordering parts for an exhaust fan. Thereafter, Cox stopped welding until approximately June 20, 1986.

In the beginning of August, Cox complained to Harmon that the GR-2022 did not fit properly. Harmon then instructed Wesley to take Cox to Orr Safety to purchase yet another respirator. Cox used the third respirator while training his replacement at the primary crusher.

Sometime between September 9, and September 16, 1986 Cox quit welding full-time; however, he still welded at the primary crusher on occasion while training his replacement. On October 22, 1986, Cox was awarded a bid position at AAC as a pit truck operator.

On March 27, 1987, Cox filed a complaint against various defendants, including AAC and API, for damages arising from his welding at the primary crusher. On January 28, 1991, summary judgment was entered for API and on the following day for AAC. It is from these grants of summary judgment Cox now appeals.

DISCUSSION AND DECISION

We review the trial court's entry of summary judgment using the same standard as the trial court: summary judgment is only appropriate when there is no issue of material fact and the moving party is entitled to summary judgment as a matter of law. Ind.Trial Rule 56(C); Mauller v. City or Columbus (1990), Ind.App., 552 N.E.2d 500, 502, trans. denied. Although the court may not weigh the disputed evidence, Jarrell v. Monsanto Co. (1988), Ind.App., 528 N.E.2d 1158, 1161, trans. denied, (1990), 555 N.E.2d 453, we do consider the contents of the pleadings, affidavits, and depositions in a light most favorable to the nonmovant. Progressive Construction and Engineering Co. v. Indiana & Michigan Electric Co. (1989), Ind., 533 N.E.2d 1279, 1282.

Issue One

I.C. Sec. 22-3-2-6 provides that the Worker's Compensation Act is the exclusive remedy for an employee against his employer if the employee's personal injury was "by accident," "arising out of employment," and "arising in the course of employment." Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, 973. Neither Cox nor AAC contest that the injuries sustained by Cox arose out of or during the course of employment. Thus, the dispute is whether Cox's injury was "by accident."

Cox contends that he was intentionally injured by AAC; therefore, his claim against it is an exception to the requirement that his exclusive remedy lies within the Worker's Compensation Act, and summary judgment should not have been granted. Cox cites numerous cases in support of his claim that Indiana recognizes an intentional tort exception to the Act. AAC does not disagree with this general proposition; however, it contends that Cox has failed to provide sufficient factual evidence from which the requisite intent can be inferred. We agree with AAC.

A naked allegation of an intentional tort is not enough to avoid the exclusive remedy provision of the Worker's Compensation Act. Tribbett v. Tay Mor Industries, Inc. (1984), Ind.App., 471 N.E.2d 332, 333. In Tribbett, we upheld the dismissal of the employee's complaint holding that allegations that the employer failed to provide safe tools and safe working conditions were insufficient to support a claim of intentional tort. Id. Likewise, in Blade v. Anaconda Aluminum Co. (1983), Ind.App., 452 N.E.2d 1036, although the employee presented sufficient facts to raise an inference that his employer intentionally pursued a course of conduct which jeopardized his safety, we found no facts present to support an inference that his employer intentionally injured him. Similar to the employees in the above-cited cases, Cox has not presented any evidence that AAC intended to injure him.

As we have said before, quoting Dean Prosser, regarding the concept of intent in tort law:

" '[T]he mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief of [sic] consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a certainty.' "

Blade, 452 N.E.2d at 1038. In the case at bar, Cox alleges that AAC, its supervisor, and...