Delboccio v. Main Steel Polishing Co., 2009 Ohio 5912 (Ohio App. 10/28/2009)
| Decision Date | 28 October 2009 |
| Docket Number | No. 08 MA 37.,08 MA 37. |
| Citation | 2009 Ohio 5912 |
| Parties | Edward A. Delboccio, Plaintiff-Appellant, v. Main Steel Polishing Co., Inc., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Anthony N. Gemma, Gemma & Gemma, South Commons Professional Centre, 1040 South Commons Place, Suite 202, Youngstown, Ohio 44514, for Plaintiff-Appellant.
Timothy J. Fitzgerald, Gallagher Sharp, 1501 Euclid Avenue, Cleveland, Ohio 44115, for Defendant-Appellee.
Before: Hon. Cheryl L. Waite, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro.
{¶1} Appellant, Edward Delboccio, appeals the entry of summary judgment against him and in favor of Appellee, Main Steel Polishing Company, Inc. by the Mahoning County Court of Common Pleas on January 7, 2008. Appellant contends that genuine issues of fact are present and the trial court erred in granting summary judgment in this employer intentional tort case. Because Appellant cannot show that Appellee possessed actual knowledge that Appellant's injury was substantially certain to occur, the judgment of the trial court is affirmed.
{¶2} At the time of its decision, the trial court had before it as evidence Appellant's deposition, the deposition of Daniel D. DeNicholas, operator and laborer at the plant at the time of Appellant's injury, the deposition and affidavit of Roger T. Ben, plant manager at the time of Appellant's injury, and the record of proceedings before the Industrial Commission in Claim No. 04-307522. It is from this evidence that the facts can be gleaned.
{¶3} On January 27, 2004, Appellant was setting up the sheet polishing machine at Appellee's factory. (Delboccio Depo., pp. 22-23.) Typically, three to four employees worked on the machine at a given time: the machine operator, an employee on the front end of the machine responsible for loading the metal sheets, a third employee who cuts the polyvinyl chloride ("PVC") after the metal has passed through the PVC applicator, and a fourth employee responsible for stacking the coated sheets. (Delboccio Depo., pp. 17-18.)
{¶4} The PVC applicator has two vertically-opposed rollers that are manually operated with a toggle switch, which has three positions, reverse, neutral, and forward. (DeNicholas Depo., pp. 13-14, 44.) The operator's main responsibility was to activate the toggle switch each time a metal sheet was ready to pass through the PVC applicator. (DeNicholas Depo., p. 15.) At his deposition, Appellant likened the machine to, "the old wringer washers that your mother and grandmother used to wring out the clothes." (Delboccio Depo., p. 26.)
{¶5} In the event of a jam, any employee could stop the rollers by using the emergency stop ("e-stop") button on the machine, but it was the operator's responsibility to clear the jam and press the reset button, which was located next to the e-stop button. (DeNicholas Depo., pp. 33-34, Ben Depo., pp. 28-29.) The policy at the factory was that an employee must power down any machine that required maintenance, although this policy was not in writing. (Ben Depo., p. 30.)
{¶6} Appellant's job was to cut the PVC and stack the sheets. (Delboccio Depo., p. 16.) Appellant explained that it was important that the PVC have no creases in it, because a crease in the PVC could dent the metal sheet. (Delboccio Depo., pp. 16-17.) Appellant had worked on the machine for approximately six months before the accident.
{¶7} On the day of the accident, Appellant and DeNicholas had been assisting on the slitter line when the supervisor, Joe Corona, asked them to set up the sheet polisher. (Delboccio Depo., pp. 22-23.) According to Appellant, he and DeNicholas were setting up the machine when the accident occurred and there was no metal, only PVC, in the machine. (Delboccio Depo., pp. 23, 25.)
{¶8} When the men were installing the PVC roll, DeNicholas was on the operator's side of the machine, and Appellant crawled underneath the machine to straighten the PVC. Appellant explained that he had to, "pull the PVC off of the roll down to the rolls and below." (Delboccio Depo., p. 24.) DeNicholas, at the same time, was pulling up on the PVC in order to make it taut. He accidentally hit the toggle switch and started the machine in reverse mode. As a result, Appellant's hand was drawn into the rollers. (Delboccio Depo., pp. 24-25.) When DeNicholas heard Appellant scream, he ran to the other side of the machine. (DeNicholas Depo., p. 25.) Upon seeing that Appellant's hand had been pulled into the machine, he ran back around the machine and put the toggle switch into the forward position to release Appellant's hand.
{¶9} Delboccio suffered permanent damage to his hand and has had to undergo two surgeries. (Delboccio Depo., p. 50.) A third surgery is necessary, which will require a recovery period of three months, so he has chosen to delay that surgery until he has a "good foot in the door" at his new job before taking leave. (Delboccio Depo., p. 54.)
{¶10} Appellant explained that he had straightened the PVC roll by crawling underneath the PVC applicator six to ten times in the past without incident. (Delboccio Depo., p. 33.) He conceded that he was aware that the power was on when he was adjusting the PVC, the power could have been shut off, and if the power had been shut off he would not have been injured. (Delboccio Depo., pp. 33, 40.) However, he stated that it was not his responsibility to operate the machine or to activate those switches. (Delboccio Depo., p. 41.) He further stated that, at the time, he did not think that it was necessary to shut down the main power line in order to align the PVC. (Delboccio Depo., p. 61.)
{¶11} According to DeNicholas, he and Appellant were running sheets when Appellant was injured. (DeNicholas Depo., p. 9.) A thin metal sheet jammed under one of the rollers and bent around it. (DeNicholas Depo., p. 11.) DeNicholas explained that the lighter gauge sheets were more likely to jam the machine. (DeNicholas Depo., p. 12.) The machine typically jammed between five and ten times a day when running light gauge metal sheets.
{¶12} Because jams occurred as a regular part of the operation, DeNicholas stated that he believed that he knew how to dislodge the damaged sheets. (DeNicholas Depo., p. 13.) He instructed the employee feeding the sheets to stop, and then he cut the PVC off the top of the machine and tried to remove the sheet.
{¶13} As DeNicholas struggled to remove the sheet, his hip, which was resting on the toggle switch, activated the PVC rollers into reverse mode. (DeNicholas Depo., pp. 14, 25.) As a consequence, Appellant's hand was drawn into the rollers. (DeNicholas Depo., p. 25.) DeNicholas claims that he told Appellant prior to the accident, "[j]ust leave everything go, I will take care of it." (DeNicholas Depo., pp. 18, 25-26.)
{¶14} According to DeNicholas, the operator is in charge of the line and it is common practice for the operator to address problems. Prior to his attempts to dislodge the metal sheet, DeNicholas saw Appellant standing at the back of the machine, but he did not see Appellant go under the machine. (DeNicholas Depo., p. 22.)
{¶15} Another employee, George Hawes, suffered a similar injury a few months before Appellant. (DeNicholas Depo., p. 22.) DeNicholas was the operator of the sheet polishing line and Hawes was the stacker the day that he was injured. Hawes had his hands on a metal sheet that had jammed when Eric Smith, the assistant plant manager, attempted to clear the jam by hitting the toggle switch in reverse mode. (DeNicholas Depo., pp. 29, 31.) DeNicholas explained that he was a new employee at the time, and Smith had more experience with the machine. (DeNicholas Depo., p. 30.) Hawes' hand was drawn into the machine, and the metal sheet "actually just laid his hand wide open." (DeNicholas Depo., p. 31.) There were no other accidents involving the PVC applicator. (DeNicholas Depo., pp. 49-50.)
{¶16} After Hawes was injured, Ben moved the reset button from the PVC applicator, where the e-stop button was located, to another panel approximately 20 feet away from the applicator, so the machine operator would have to walk away from the machine to reset it. (Ben Depo., p. 31.) He conceded that the modification served no purpose unless the operator powered down the machine for servicing. In other words, if the machine was not powered down, there would be no reason to activate the reset button.
{¶17} After Appellant's accident, Ben replaced the e-stop button with electric eyes situated on both sides of the rollers on the PVC applicator. (DeNicholas Depo., p. 39.) The machine automatically shuts down when the beam between the eyes is broken. Based on the previous modification, the operator must then walk away from the machine to reset it. Also, the toggle switch, which previously stayed in place once it was moved into a particular position, is now spring-loaded and must be held in place by the machine operator for the rollers to move forward or in reverse. (DeNicholas Depo., p. 44.) Ben relied upon his twenty years of experience in working around similar equipment in choosing the modifications to the PVC applicator. (Ben Depo., p. 22.)
{¶18} As a part of Appellant's workers' compensation claim, the Industrial Commission found that Appellee violated a specific safety requirement, O.A.C. 4123:1-5-11(D)(10)(a), which requires employers to provide means to protect employees exposed to contact with nip points created by power-driven in-running rolls. (Record of Proceedings, p. 4.)
{¶19}
{¶20} An appellate court conducts a de novo review of a trial court's decision to grant summary judgment, using the same standards as the trial court as set forth in Civ.R. 56(C). Grafton...
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