Danny Fyffe v. Jeno's Inc.
| Decision Date | 14 December 1989 |
| Docket Number | 89-LW-4404,595 |
| Parties | Danny FYFFE, et al., Plaintiffs-Appellants, v. JENO'S INC., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
Michael S. Miller, Wolske & Blue, Columbus, for appellants.
Thomas M. Taggart and Mr. J. Scott Jamieson, Vorys, Sater, Seymour & Pease, Columbus, for appellees.
DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment entered by the Jackson County Court of Common Pleas granting summary judgment to Jeno's Inc. (hereinafter "Jeno's"), defendant below and appellee herein, against Danny Fyffe, plaintiff below and appellant herein.®1¯ The following error is assigned:
"THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE PLAINTIFFS-APPELLANTS IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-APPELLEE BECAUSE, CONSTRUING TO [sic] EVIDENCE MOST STRONGLY IN FAVOR OF PLAINTIFFS-APPELLANTS, THERE EXISTS A GENUINE ISSUE OF THE MATERIAL FACT WHETHER AN INTENTIONAL TORT WAS COMMITTED BY THE DEFENDANT-APPELLEE"
The following facts are pertinent to this appeal. In October of 1983, appellant was hired by appellee as a sanitation worker to assist in the cleaning of plant and equipment, including machinery used in the manufacturing process at appellee's Wellston, Ohio facility. Appellant was assigned to work the third shift at the facility and his duties included, among others, the cleaning of conveyor belts.
On February 24, 1984, appellant was cleaning a conveyor belt used to wrap appellee's products when, after attempting to remove a piece of plastic caught between the bottom roller and the conveyor belt, his safety glove was caught in the moving conveyor and appellant's hand was pulled into the machine, seriously injuring him. As a result of such incident, appellant filed a worker's compensation claim and received compensation thereunder.
On February 15, 1985, appellant commenced this action below alleging that appellee "intentionally, maliciously wilfully [and] wantonly" caused his injuries. Appellant sought, in conjunction with his wife's claim for loss of consortium, two million dollars ($2,000,000.00) compensatory and punitive damages. On March 21, 1985, appellee caused the action to be removed to the United States District Court for the Southern District of Ohio, Eastern Division, under authority of 28 U.S.C. ] 1441(a), in that there existed a controversy in an amount exceeding $10,000.00 between citizens of different states. On July 7, 1986, the cause was remanded to the Jackson County Court of Common Pleas after the United States District Court found a lack of diversity jurisdiction in the matter.
On June 12, 1987, appellee filed its first motion for summary judgment which was overruled by the court on the basis that there was some evidence of a "safety guard" being removed from the conveyor and, thus, there remained a factual question of whether such removal was deliberate. On June 15 1988, appellee filed its supplemental motion for summary judgment, supported by affidavit and various depositions. Appellant filed his memoranda contra said motion without any reference to supporting affidavits, but apparently in reliance on various depositions heretofore filed within. On August 11, 1988, the trial court below granted summary judgment to appellee under the authority of Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100. The case is now before us on appellant's timely notice of appeal.
The issue presented in this appeal is twofold. The first question is whether the provisions of R.C. 4121.80(G)(1), except for the first paragraph thereof defining "intentional tort," can be applied retrospectively to a cause of action which arose prior to August 22, 1986, the effective date of the statute. If not, would all the evidence herein, construed most strongly in favor of appellant, defeat a grant of summary judgment for appellee under the common law as it existed prior to R.C. 4121.80(G)(1). For the following reasons, we hold in the negative on both issues.
It is now well settled law that R.C. 4121.80(G)(1) imposes a new more difficult standard for the "intent" requirement of a worker's compensation intentional tort than did that established under common law and is thus prohibited by the Ohio constitution's ban against retroactive laws ®2¯ from being applied to intentional tort causes of action arising prior to the effective date of the statute on August 22, 1986. Van Fossen, supra at paragraph 4 of the syllabus; Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 129 & fn. 6; Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 138. It is undisputed that the cause of action herein arose prior to the effective date of the statute. Therefore, under Van Fossen and its progeny, the provisions of R.C. 4121.80(G) cannot be applied to this action.
At issue is the portion of R.C. 4121.80(G) which provides, inter alia, as follows:
Appellant argues that in Van Fossen, the Supreme Court held only that "the substantive redefinition of an "intentional tort' " as found in the first sentence of R.C. 4121.80(G)(1) is barred from retroactive application. Appellant argues that the second sentence of the subsection can be applied herein either by virtue of the "savings clause" of the legislation which enacted it ®3¯ or by virtue of being an evidentiary rule which is procedural and thus not barred by the ban on retrospective legislation.®4¯ Neither argument is persuasive.
The "substantive redefinition of an intentional tort" is inextricably bound together with the remaining provisions of R.C. 4121.80(G)(1). This is manifest from a brief examination of the history of intentional tort law prior to the enactment of the statute here at issue. An intentional tort was first defined, as a cause of action, by the Ohio Supreme Court in Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90 at paragraph one of the syllabus, as "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur." (Emphasis added.) In Jones, Justice Brown further opined that "a specific intent to injure is not an essential element of an intentional tort where the actor proceeds despite a perceived threat of harm to others which is substantially certain " Id. at 95.
The enactment of R.C. 4121.80(G)(1) provided a definition for intentional tort which, on its face, parallels the definition given in Jones. However, as Justice Holmes noted in Van Fossen, supra at 108, the new statutory definition of intentional tort requires a showing of "deliberate intent" to cause injury. Therefore, because the new definition required a showing of deliberate intent, the court held that it was, in fact, "a more difficult standard" for intent. Id. at paragraph 4 of the syllabus.
Thus, the provisions of R.C. 4121.80(G)(1) in their entirety, redefine the concept of an intentional tort as follows:
"(1) "Intentional tort' is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur.
Deliberate removal by the employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may be rebutted, of an act committed with the intent to injure another if injury or an occupational disease or condition occurs as a direct result.
"Substantially certain ' means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death." (Emphasis added.)
The first sentence of this subsection defines the tort, the third redefines the legal definition of the term "substantially similar" and the middle sentence provides a rebuttable presumption for the showing of "intent to injure" as redefined therein. The entire subsection (G)(1) operates to redefine an intentional tort in Ohio. One commentator has suggested that the middle sentence of the provision is meant to provide an avenue of meeting the "almost impossible standard" set up by the statute to prove an intentional tort. Comment, Ohio's Attempt to Circumvent the Concept of Intentional Tort^Enactment of Revised Code Section 4121.80 (1986), 16 Cap.U.L.Rev. 279, 295.®5¯ At any rate, to sever the language of the subsection from the rest of the statute and apply it outside the context in which it was drafted would be contrary to the policy reasons behind it.
Moreover, we do not believe that the Supreme Court of Ohio in Van Fossen meant to limit its decision only to the first sentence of the statutory subsection to the exclusion of the others. The court held, in paragraph 4 of the syllabus, that R.C. 4121.80(G), without any limiting language as to the portion construed, creates "a new, more difficult standard." Because this principal is delineated without exception in the court's syllabus, such principal is the controlling point of law. See Sup.Ct.R. 1(B) for the Reporting of Opinions. Further, subsequent cases from the court have failed to make the distinction urged by appellant. See Pariseau, supra at 129; Kunkler, supra at 138; Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 191; Kneisley v. Lattimer-Stevens Co. (1988), ...
To continue reading
Request your trial