Hannah v. Dayton Power & Light Co.

• Decision Date: 05 August 1998
• Docket Number: No. 97-783,97-783
• Citation: 82 Ohio St.3d 482,696 N.E.2d 1044
• Parties: HANNAH, Admr., Appellant, v. DAYTON POWER & LIGHT COMPANY, Appellee.
• Court: Ohio Supreme Court

Page 482

82 Ohio St.3d 482

696 N.E.2d 1044

HANNAH, Admr., Appellant, v. DAYTON POWER & LIGHT COMPANY, Appellee.

No. 97-783.

Supreme Court of Ohio.

Submitted March 24, 1998.

Decided Aug. 5, 1998.

This appeal stems from the death of Dayton Power & Light ("DP & L") employee Paul Hannah. Decedent Hannah, as a member of DP & L's Killen Station rescue team, died while attempting a vertical rescue of two men stranded at the four-hundred-fifty-foot level of a nine-hundred-foot smokestack at DP & L's Killen Electric Generating Station. The rescue attempt was prompted when a faulty elevator inside the smokestack became stuck just above the four-hundred-fifty-foot level, stranding Roy Douglas Horsley, a subcontractor's employee. Horsley climbed out of the elevator and down the attached ladder to a landing just below. Horsley then called for assistance. Using a ladder, rope, and harness, DP & L employee Mike Kelly climbed up to Horsley, but was unable to start the elevator. Exhausted and overcome by the extreme heat inside the stack, Kelly climbed out onto the platform and called his supervisor, and DP & L's control room operator, who had monitored the call. The control room operator sounded the emergency alarm to summon DP & L's Killen Station rescue squad to the scene.

The Killen Station rescue squad was formed by DP & L in response to federal regulations that addressed the need for rescue teams on power plant premises. In June 1994, the squad was composed of nine volunteers. The squad received rescue training, primarily for rescues in confined spaces, i.e., rescues of persons stranded in pits, wells, etc. The training was paid for by DP & L and occurred on the plant premises.

On the day in question, DP & L employees who were members of the Killen Station rescue team, including decedent Paul Hannah and others, responded to the alarm. They gathered equipment and met at the base of the smokestack. Team member Gary Nibert said that he was physically unable to climb the ladder, and asked Hannah whether he could perform the rescue. Hannah agreed, and climbed to the four-hundred-fifty-foot level and then onto the elevator to check on co-employee Kelly. The two of them attempted to repair the elevator, but to no avail. After about twenty or thirty minutes, Kelly came down to the landing. Hannah followed, but collapsed upon reaching the landing. Despite Kelly's and Horsley's attempts to rouse him and cool him down, Hannah remained unresponsive.

Kelly and Horsley managed to rappel to the ground together using a harness and rope. However, since Hannah had to be left on the platform, additional rescue workers were summoned from DP & L's rescue squad at J.M. Stuart Electric Generating Station, located seventeen miles away. Unlike the Killen Station team, which had been trained largely in confined space rescues, the Stuart Station rescue squad had trained more extensively in vertical rescues, i.e., rescues of persons stranded in high places. When members of the Stuart Station team could not resuscitate Hannah, they lowered him to the ground. Hannah was rushed to the hospital, where he died of hyperthermia.

Hannah's surviving spouse, Trisha E. Hannah, plaintiff-appellant, brought this lawsuit against defendant-appellee DP & L, alleging inter alia that DP & L committed an intentional tort by requiring the decedent to attempt a vertical rescue of individuals stranded at the four-hundred-fifty-foot level of the plant's smokestack. ¹ DP & L filed a motion for summary judgment, which the trial court granted. The court reasoned that the decedent had volunteered to perform the rescue. Since there was no evidence from which reasonable minds could conclude that DP & L required the decedent to perform the rescue that led to his death, there was no showing of an intentional tort. The court of appeals affirmed on the same grounds.

The cause is now before this court upon the allowance of a discretionary appeal.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, D. Arthur Rabourn and Theresa L. Groh, Cincinnati, for appellant.

Furnier & Thomas, Scott R. Thomas, Cincinnati and Sean D. McMurtry, Whitehouse Station, NJ, for appellee.

FRANCIS E. SWEENEY, Sr., Justice.

In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, this court first recognized an intentional tort exception to the workers' compensation exclusivity doctrine by allowing employees to bring an intentional tort lawsuit against their employers. We later defined the term "intentional tort" in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. Adopting 1 Restatement of the Law 2d, Torts (1965), Section 8A and Prosser & Keeton, Law of Torts (5 Ed.1984) 36, Section 8, we stated that an intentional tort is "an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur." ² Jones at paragraph one of the syllabus.

In subsequent decisions, we focused on what proof is necessary to establish intent on the part of an employer. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, we held that the proof required to establish an intentional tort must be beyond that required to prove negligence or recklessness. Id. at paragraph six of the syllabus. We set forth a three-part test an employee must satisfy in order to prevail against his or her employer for an intentional tort. Id. at paragraph five of the syllabus. This test was modified in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, where we held that the employee must prove "(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." Id. at paragraph one of the syllabus. ³ At issue in this case is the third prong of the Fyffe test, and whether the entry of summary judgment was proper.

Civ.R. 56(C) provides for the granting of summary judgment when "(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In deciding whether there exists a genuine issue of fact, the evidence must be viewed in the nonmovant's favor. Civ.R. 56(C). Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1127.

In the context of an intentional tort allegedly committed by an employer, we have previously held that to overcome a motion for summary judgment, an employee alleging an intentional tort must set forth specific facts to raise a genuine issue of fact that the employer committed an intentional tort. Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraph seven of the syllabus. Proof of the three elements of an employer intentional tort may be made by direct or circumstantial evidence. Adams v. Aluchem, Inc. (1992), 78 Ohio App.3d 261, 264, 604 N.E.2d 254, 256. With these principles in mind, we now must determine whether summary judgment was appropriate.

In granting summary judgment, the trial court relied upon the deposition testimony of Killen Station rescue squad member Gary Nibert and former plant manager Fred Southworth. Both men testified that the Killen Station rescue squad was composed of volunteers and that the decision to perform a rescue was a voluntary one. Additionally, Nibert testified that members of the Killen Station squad were not expected to do anything they chose not to do. Based upon this evidence, the court held that the rescue by the decedent was purely voluntary and there was no showing of an intentional tort.

DP & L likewise emphasizes that the evidence shows that the Killen Station rescue team is purely autonomous, in that it operates without management influence and interference. Since there was no evidence presented to show anything other than a voluntary rescue attempt made by the decedent, DP & L argues, summary judgment was proper. We disagree. Although the rescue team is autonomous in certain respects and membership on the squad is voluntary, we cannot say as a matter of law that the decision to make the rescue attempt in this case was strictly voluntary, without any direction by management. Even though there was evidence presented regarding the voluntary nature of the rescue attempt, we find that there was also evidence presented to the contrary.

Since DP & L created the Killen Station rescue team, management at DP & L has been involved in many facets of the squad's operation. For instance, training of the rescue squad is paid for by DP & L and is considered to be part of the employee's job. Training is conducted on DP & L premises during work hours, and members continue to receive their pay during training sessions. Management also has the ultimate authority to approve or reject training sessions. Additionally, management personnel at DP & L also order and pay for all rescue squad equipment and DP & L owns and operates an ambulance, which the rescue squad uses. Furthermore, DP & L policy requires that all rescue...