Dirksing v. Blue Chip Architectural Products, Inc.

Decision Date07 November 1994
Docket NumberNo. CA93-08-156,CA93-08-156
PartiesDIRKSING, Admr., Appellant, v. BLUE CHIP ARCHITECTURAL PRODUCTS, INC. et al., Appellees. *
CourtOhio Court of Appeals

John H. Metz, Cincinnati, for appellant.

Taft, Stettinius & Hollister and James M. Hall, Jr., Cincinnati, for appellees Blue Chip Architectural Products, Inc., WCI/Waltek, Inc. and Keith G. Smith.

Kenneth B. Flacks, Cincinnati, for appellee Blue Chip Erectors, Inc.

Dinsmore & Shohl and Stephen K. Shaw, Cincinnati, for appellee Frank Messer & Sons Const. Co.

KOEHLER, Judge.

Plaintiff-appellant, William P. Dirksing, administrator of the estate of John L. Dirksing ("Dirksing"), deceased, appeals a decision of the Butler County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Blue Chip Architectural Products, Inc. ("BCAP"); Blue Chip Erectors, Inc. ("BCE"); Welling and Co. ("Welling") and its successor WCI/Waltek ("Waltek") 1; Frank Messer and Sons Construction Co. ("Messer"); and Keith G. Smith.

Dirksing, appellant's decedent, was a college student working during the summer as a "helper" for BCAP on the Champion Paper Knightsbridge construction project. On May 18, 1990, Dirksing died after falling through a skylight. He was not wearing a safety belt and there were no safety nets under the skylight.

Messer was the general contractor on the Knightsbridge project. Messer subcontracted with Welling for the installation of the skylights. Welling, in turn, contracted with BCAP to do the labor. BCAP and BCE do the actual field work for projects in which Welling is involved. Keith Smith is an officer and/or shareholder in Welling, BCAP and BCE.

Appellant, Dirksing's father, filed a wrongful death action against BCAP, BCE, Welling, and Messer, alleging causes of action for intentional tort and negligence. Subsequently, appellant sought leave to file an amended complaint naming Keith Smith as an additional defendant and adding claims that (1) BCAP could be held liable for negligence because the Ohio Bureau of Workers' Compensation had paid no compensation for Dirksing's death and therefore BCAP was not entitled to immunity under the workers' compensation statutes; (2) Welling, BCE, and Keith Smith could be held liable on an "alter ego" theory for BCAP's negligence; and (3) Welling, BCE, and Keith Smith could be held liable for their own negligence. The trial court never specifically granted appellant leave to file the amended complaint. However, it did address the issues raised in the amended complaint on motions for summary judgment. The trial court granted summary judgment in favor of all defendants on all issues raised by appellant. This appeal followed.

Appellant presents seven assignments of error for review. We will address the issues raised by appellant by subject matter and therefore will address the assignments of error out of order.

I Intentional Tort

In his first assignment of error, appellant states that the trial court erred in granting summary judgment in favor of BCAP, BCE, Welling, and Keith Smith on the issue of intentional tort. Appellant argues that reasonable minds could differ as to whether Dirksing's employer knew that injury was substantially certain to occur. We find this assignment of error to be well taken.

The standard for proving an intentional tort is set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraphs one and two of the syllabus, which states:

"1. * * * [I]n order to establish 'intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. * * *

"2. To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent. * * *"

The elements of an intentional tort may be proven by circumstantial evidence. Adams v. Aluchem, Inc. (1992), 78 Ohio App.3d 261, 264, 604 N.E.2d 254, 255-256. Appellant's evidence, if believed, shows that on the day of the accident, Dirksing was assisting Keith Smith's sons, Mark and Brant, as they worked on two skylights. Dirksing was working with Brant Smith in finishing a nearly completed skylight when Mark Smith asked Dirksing to help move a piece of plywood that Mark Smith had been kneeling on while working on the other skylight. That skylight was only partially covered with glass. Mark Smith, who was the only one wearing a safety belt, turned away from Dirksing as he prepared to move the plywood. When Mark Smith heard Dirksing say something, he turned around to see Dirksing falling backward through the skylight to the floor of the atrium below.

Before the start of skylight installation, Messer had asked Welling to put up planking or safety nets. Welling, to Messer's satisfaction, had replied that employees would be tied off using safety belts and lanyards. Mike Monk was the supervisor in charge on the day of the accident. Although Monk claimed to be familiar with OSHA regulations, he testified that only someone working directly over an opening needed to use a safety belt. Therefore, Mark Smith was the only employee who was tied off. However, OSHA regulations state that anyone working within six feet of an opening should be tied off. In fact, testimony showed that there was no place to which a safety belt could be properly attached. Mark Smith was tied off to the skylight frame, which is improper under OSHA regulations. Further, there was a twenty-one to twenty-four inch guardrail around the skylight which would hit the average person at the knee, and the roof was made of corrugated metal which could be slippery.

Monk had hired Dirksing and provided him with only general safety information. Monk was not up on the roof when the accident occurred, although he had been there earlier that day. Tom Estes, the most experienced employee, had left the roof to work on an equipment problem, leaving behind only Dirksing and Brant Smith, both of whom were inexperienced, and Mark Smith, who had a couple of years' field experience.

Appellant also presented evidence that Welling, BCAP, and BCE have histories of OSHA violations, some of which were for failure to provide guardrails and failure to provide adequate fall protection. Appellant presented the affidavits and depositions of two well-qualified experts who stated that, given BCAP's policies, a fall was only a matter of time. One stated in his affidavit:

"Monk was obviously not familiar with safety belts, life lines, and lanyards. His depositions clearly indicated he did not even now [sic ] how to put a safety belt on properly and how to use the lanyards. Monk seems to be unaware of the basic requirements for using safety belts and lanyards as fall protection; all of this in spite of the company being cited for failure to use safety belts properly as fall protection. The specific failures to even know of the most basic requirements makes it clear that the argument made by Blue Chip Architectual [sic ] Products, Inc. that safety belts are only required when an employee is somehow 'working directly over the hole' is a ludicrous and unbelievable contention. In more than 20 years of safety and health experience in the construction industry, I have never heard anyone take this position and it is difficult to give it any credence at all.

" * * *

"[T]he mode of doing business, as exhibited by Blue Chip Architectual [sic] Products, Inc., i.e. in delegating their safety compliance to Raymond 'Mike' Monk, who does not exhibit the necessary understanding of the OSHA regulations applicable to skylights, creates a substantial certainty that the continued corporate safety policy of requiring safety belt and lanyard use only when working directly over the skylight opening will result in harm or death to employees.

" * * *

"Additionally, I have reviewed the certified copy of the OSHA violation histories for Welling & Co.; Blue Chip Architectual [sic] Products, Inc. and Blue Chip Erectors. A corporation that has been cited for past OSHA fall protection violations * * *, yet continues to fail to comply with OSHA fall protection regulations, creates a substantial certainty to cause harm to an employee of said corporation."

The trial court did not even mention the expert opinions in its decision. Appellees argue that the expert opinions do not preclude summary judgment. However, these arguments are simply attacks on the experts' credibility.

Appellees also argue that evidence of prior OSHA violations is not relevant to the issue of whether an employer committed an intentional tort. Appellees rely upon Ganobcik v. Industrial First, Inc. (1991), 72 Ohio App.3d 619, 595 N.E.2d 951, in which the executor of the...

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