Downard v. Rumpke of Ohio, Inc.

• Decision Date: 28 October 2013
• Docket Number: No. CA2012–11–218.,CA2012–11–218.
• Citation: 3 N.E.3d 1270
• Parties: Racheal DOWNARD, Administratrix of the Estate of Scott D. Johnson, Plaintiff–Appellant, v. RUMPKE OF OHIO, INC., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

3 N.E.3d 1270

Racheal DOWNARD, Administratrix of the Estate of Scott D. Johnson, Plaintiff–Appellant,

v.RUMPKE OF OHIO, INC., et al., Defendants–Appellees.

No. CA2012–11–218.

Court of Appeals of Ohio, Twelfth District, Butler County.

Oct. 28, 2013.

Elizabeth Ann Yauch and Traci Combs–Valerio, Trenton, OH, for plaintiff-appellant.

Richard A. Hyde and Michael T. Gmoser, Hamilton, OH, for plaintiff-appellant.

Keeting, Muething & Klekamp PLL, Michael T. Cappel and Louis F. Gilligan, Cincinnati, OH, for defendant-appellee, Rumpke of Ohio, Inc.

Sutter O'Connell Co., Lawrence A. Sutter, Christina J. Marshall and James M. Popson, Cleveland, OH, for defendant-appellee, Rumpke of Ohio, Inc.

Sonnek & Howard, Ltd., Greg A. Goldblatt and Andrew D. Sonnek, Cincinnati, OH, for defendant, Bureau of Workers' Compensation.

S. POWELL, J.

{¶ 1} Plaintiff-appellant, Racheal Downard, Administratrix of the Estate of Scott D. Johnson, appeals from the Butler County Court of Common Pleas decision granting directed verdicts to defendant-appellee, Rumpke of Ohio, Inc., at the end of Downard's case-in-chief and again at the close of all evidence. For the reasons outlined below, we affirm in part, reverse in part and remand for further proceedings.

{¶ 2} At all times relevant, Scott Johnson served as a temporary employee at Rumpke's tire shredding facility located in St. Clair Township, Butler County, Ohio. As a temporary employee, Johnson was assigned to load tires onto a tire shredder's inclined conveyor belt. Once the tires were loaded onto the conveyor belt, the tires would then be dropped into a cutter box that housed the feeder gears and cutting knives that cut the tires into two-by-two inch pieces. It is undisputed that as originally manufactured, the tire shredder at issue had an observation platform, a jib crane, as well as a hinged hood and interlock switch, all of which were removed, bypassed, or somehow modified by Rumpke.

{¶ 3} On the afternoon of April 26, 2007, the overload beacon light on the tire shredder illuminated indicating a possible blockage of the drum discharge chute. Noticing the overload beacon light, Craig Stidham, the foreman at the Rumpke tire shredding facility, stopped what he was doing and approached the tire shredder. Although there is some dispute about what transpired next, all parties agree that Johnson then climbed onto the observation platform where he peered into the cutter box and confirmed that there was a tire blocking the discharge chute. After learning of the blockage, Stidham threw the electrical disconnect switch in order to turn off the tire shredder.

{¶ 4} Upon shutting down the machine, Stidham then turned and began talking with Joseph Retherford, another temporary employee assigned to work at Rumpke's tire shredding facility. While speaking with Stidham, Retherford noticed that Johnson was no longer on the observation platform. Thinking Johnson may have fallen off the side of the machine, Retherford went around to the side of the tire shredder, but was unable to locate Johnson. Sensing something was amiss, Stidham then climbed onto the inclined conveyor belt up to the edge of the cutter box where he found Johnson entangled within the tire shredder's feeder gears and cutting knives.

{¶ 5} Emergency crews were immediately dispatched to the scene to remove Johnson from the tire shredder, a process which took approximately 50 minutes to complete. During that time, Johnson remained conscious and proclaimed that he had fallen into the cutter box when he tried to unjam a tire from the machine. Johnson later reiterated the same to medical personnel as he was being transported to the hospital. After spending 52 days in the hospital, Johnson succumbed to his devastating injuries that had effectively removed the entire left side of his body. As a result of this incident, Johnson's estate received workers' compensation benefits totaling $387,761.29.

{¶ 6} On November 23, 2010, Racheal Downard, Johnson's niece and administratrix of Johnson's estate, filed suit against Rumpke asserting a claim of employer intentional tort under R.C. 2745.01, Ohio's Employer Intentional Tort statute. As part of her complaint, Downard argued Rumpke had violated R.C. 2745.01 by directing Johnson to operate the tire shredder after it had deliberately removed, bypassed, and modified the machine's safety devices and safety guards.

{¶ 7} After an exhaustive discovery process, this matter went to trial before a jury. The trial court issued a directed verdict for Rumpke at the close of Downard's case-in-chief finding that although the hinged hood on the tire shredder did constitute an “equipment safety guard” under R.C. 2745.01(C), the observation platform, jib crane, and interlock switch did not. The trial court also issued a directed verdict at the close of all evidence finding Rumpke had successfully rebutted the intent to injure presumption contained in R.C. 2745.01(C) as a matter of law. The matter was then submitted to the jury which returned a verdict in favor of Rumpke on all remaining issues.

{¶ 8} Downard now appeals from the trial court's decisions granting a directed verdict to Rumpke at the close of her case-in-chief and at the close of all evidence, raising two assignments of error for review.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF–APPELLANT WHEN IT GRANTED DEFENDANT–APPELLEE'S MOTION FOR DIRECTED VERDICT BY FINDING DEFENDANT–APPELLEE SUFFICIENTLY REBUTTED THE PRESUMPTION CONTAINED IN R.C. 2745.01(C).

{¶ 11} Assignment of Error No. 2:

{¶ 12} THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF–APPELLANT WHEN IT GRANTED DEFENDANT–APPELLEE'S MOTION FOR DIRECTED VERDICT DETERMINING WHAT WAS NOT AN EQUIPMENT SAFETY GUARD FOR PURPOSES OF THE PRESUMPTION CONTAINED IN R.C. 2745.01(C).

{¶ 13} In her two assignments of error, Downard argues the trial court erred by granting Rumpke a directed verdict at the end of her case-in-chief by finding the tire shredder's jib crane, observation platform, and interlock switch were not “equipment safety guards” as that term is used in R.C. 2745.01(C), Ohio's Employer Intentional Tort statute. Downard also argues the trial court erred by granting Rumpke a directed verdict at the close of all evidence by finding Rumpke had successfully rebutted the intent to injure presumption of R.C. 2745.01(C) as it relates to the deliberate removal of the tire shredder's hinged hood. Because these arguments are interrelated and address a multitude of issues regarding the application of Ohio's Employer Intentional Tort statute, we will address Downard's two assignments of error together.

Civ.R. 50(A)(4) and the Directed Verdict Standard of Review

{¶ 14} The standard for granting a directed verdict is set forth in Civ.R. 50(A)(4), which provides:

When a motion for directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

{¶ 15} In ruling on a motion for directed verdict, “[t]he trial court need not consider either the weight of the evidence or the credibility of the witnesses [.]” Collins v. Admr. Bur. Of Workers' Comp., 12th Dist. Madison No. CA2006–12–054, 2007-Ohio-5634, 2007 WL 3054321, ¶ 14;Wagner v. Roche Laboratories, 77 Ohio St.3d 116, 119, 671 N.E.2d 252 (1996). In turn, “[w]hen the party opposing a motion for a directed verdict has failed to adduce any evidence on the essential elements of the claim, a directed verdict is appropriate.” Nieman v. Bunnell Hill Development Co, Inc., 12th Dist. Butler No. CA2009–04–109, 2010-Ohio-1519, 2010 WL 1268165, ¶ 25. In other words, “[w]here there is substantial competent evidence favoring the nonmoving party so that reasonable minds might reach different conclusions, it is inappropriateto grant the motion for a directed verdict.” Rockwood v. West Chester Nursing and Rehab. Residence, L.L.C., 12th Dist. Butler No. CA2006–10–250, 2007-Ohio-7071, 2007 WL 4555786, ¶ 9, citing Ramage v. Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 109, 592 N.E.2d 828 (1992).

{¶ 16} A trial court's decision to grant a motion for a directed verdict involves a question of law, and therefore, an appellate court's review of that decision is de novo. White v. Leimbach, 131 Ohio St.3d 21, 2011-Ohio-6238, 959 N.E.2d 1033, ¶ 22, citing Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4. “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Lasley v. Nguyen, 172 Ohio App.3d 741, 2007-Ohio-4086, 876 N.E.2d 1274, ¶ 18 (2d Dist.), citing Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 119–120, 413 N.E.2d 1187 (1980). Thus, the trial court's decision to grant a motion for a directed verdict is not granted any deference by the reviewing court. Moore v. Kettering Mem. Hosp., 2d Dist. Montgomery No. 22054, 2008-Ohio-2082, 2008 WL 1921642, ¶ 19, citing Brown v. Scioto Cty. Bd. of Commissioners, 87 Ohio App.3d 704, 711, 622 N.E.2d 1153 (4th Dist.1993).

Ohio's Employer Intentional Tort Statute

{¶ 17} Generally, actions for injuries sustained in the course of employment must be addressed within the framework of Ohio's workers' compensation statutes. Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263, ¶ 20 (12th Dist.); Zuniga v. Norplas Indus. Inc., 2012-Ohio-3414, 974 N.E.2d 1252, ¶ 14. However, in limited circumstances when an employer's conduct is sufficiently egregious to rise to the level of an intentional tort, an...