Fyffe v. Jeno's, Inc., No. 90-263

• Court: United States State Supreme Court of Ohio
• Writing for the Court: HOLMES; MOYER; DOUGLAS; SWEENEY
• Citation: 570 N.E.2d 1108,59 Ohio St.3d 115
• Parties: FYFFE et al., Appellants, v. JENO'S, INC., Appellee.
• Decision Date: 01 May 1991
• Docket Number: No. 90-263

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59 Ohio St.3d 115 570 N.E.2d 1108 FYFFE et al., Appellants,
v.
JENO'S, INC., Appellee. No. 90-263. Supreme Court of Ohio. Submitted Jan. 15, 1991.
Decided May 1, 1991. Syllabus by the Court

1. Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), in 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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.)

[570 N.E.2d 1110] 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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus, modified as set

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forth above and explained.)

3. Upon a motion for summary judgment, when a court is asked to inquire as to whether an employer has committed an intentional tort and evidence is submitted tending to show the employer has deliberately removed a safety guard from equipment which an employee is required to operate, and such equipment occasions the employee's injury, this evidence should be considered along with other evidence in support of, and contra to, the motion for summary judgment in cases where the cause of action accrues prior to the enactment of Sub. S.B. No. 307, effective August 22, 1986, codifying R.C. 4121.80(G)(1).

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This case involves an intentional tort claim filed by plaintiff-appellant Danny R. Fyffe ("Fyffe") against his employer Jeno's, Inc., defendant-appellee herein. In his complaint, Fyffe alleged, inter alia, that appellee intentionally removed a safety guard from a conveyor system knowing that the purpose of the guard was to protect employees from injury, and knowing that removal of the guard created a substantial risk of harm to employees. ¹ Fyffe alleged that he suffered serious injuries as a result of appellee's conduct.

The following relevant facts were elicited upon discovery. Appellee hired Fyffe to work as a sanitation employee at appellee's production plant in Wellston, Ohio. As part of his job duties, Fyffe was required to clean conveyor belts used in appellee's production process.

On February 28, 1984, Fyffe was cleaning a conveyor belt while the conveyor was running. The conveyor was equipped with a protection "fall guard." The purpose of the fall guard was to protect persons from accidentally coming into contact with the internal mechanism of the conveyor. While cleaning the conveyor belt, Fyffe noticed a plastic object caught inside the conveyor. Fyffe reached around the "fall guard" in an attempt to remove the plastic object from the machine. In doing so, a cleaning glove that Fyffe was wearing became entangled in the machinery causing Fyffe's arm to be pulled into the moving parts of the conveyor. As a result, Fyffe was severely injured.

The conveyor Fyffe was cleaning was built by appellee and, at one time, was equipped with a Plexiglas safety guard. The purpose of the Plexiglas guard was to prevent people from reaching into the conveyor. However, the Plexiglas guard had been removed sometime prior to when Fyffe sustained his injuries. Deposition testimony indicates that appellee's maintenance personnel may have removed the guard so that the conveyor could be cleaned more readily by appellee's sanitation workers.

Based on the evidence before it, the trial court granted summary judgment to appellee with respect to Fyffe's intentional tort claim. The trial court found that the evidence failed to establish "intent," as that term has been defined in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the [570 N.E.2d 1111] syllabus. On appeal, the judgment of the trial court was affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Wolske & Blue, and Michael S. Miller, for appellants.

Vorys, Sater, Seymour & Pease, Thomas M. Taggart and J. Scott Jamieson, for appellee.

HOLMES, Justice.

In this case we are confronted with a rather frequently recurring legal question of what may constitute an "intentional tort" alleged to have been committed by an employer against his employee. We had hoped to resolve this query by this court's trilogy of opinions of Van Fossen, supra; Kunkler v. Goodyear

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Tire & Rubber Co. (1988), 36 Ohio St.3d 135, 522 N.E.2d 477; and Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 522 N.E.2d 511, and their progeny. However, some trial courts and attorneys in this state are still in a quandary as to what facts, as pleaded, and as otherwise shown upon a motion for summary judgment pursuant to Civ.R. 56, may overcome such a motion, and present a case with intentional tort issues for the trier of the fact.

All three of the aforementioned opinions were fundamentally premised upon the law set forth within Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed.1984), and each of these opinions so noted. Therefore, there was no basic difference in the law pronounced in each of those opinions, nor were any different standards used to determine the existence of an "intentional tort." However, since this court's pronouncements upon this subject, a number of elements have surfaced which have occasioned ripples upon the legal waters that a majority of this court fervently hoped had been calmed after Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, which opinion had judicially espoused the theory in Ohio of an employer's "intentional tort," and Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, which had first utilized Section 8(A) of the Restatement of Torts 2d as a definition of such a tort. One element to be considered is that there has been some misinterpretation of certain language in the syllabus in Van Fossen, supra. Such misinterpretation, in effect, was that there had to be a showing of actual subjective intent upon the part of the employer to produce the resulting harm to the employee, or that there had to be a finding that the employer had knowledge of the specific harm that might befall the injured employee. In this regard, some individuals may have been confused as to the verbiage in paragraphs five and six of the syllabus in Van Fossen, which refers to the knowledge required of the employer in order to create the inference of the intent to commit an "intentional tort." Accordingly, in...