Kerg v. Atlantic Tool & Die Co.
| Decision Date | 15 May 2008 |
| Docket Number | No. 89776.,89776. |
| Parties | KERG, Appellant, v. ATLANTIC TOOL AND DIE COMPANY et al., Appellees. |
| Court | Ohio Court of Appeals |
Nurenberg, Paris, Heller & McCarthy, Thomas Mester, Jonathan D. Mester, and Kathleen J. St. John, Cleveland, for appellant.
Gallagher Sharp, Thomas J. Cabral, and Colleen A. Mountcastle, Cleveland, for appellee Atlantic Tool & Die Co.
Bryan Cave L.L.P., R. Bruce Duffield, and Derek Holland; Squire, Sanders & Dempsey L.L.P., Stephanie E. Niehaus, and Robin G. Weaver, Cleveland, for appellee Littell International.
{¶ 1} Plaintiff-appellant Marie Kerg appeals the lower court's ruling on defendants-appellees Atlantic Tool & Die Company's ("Atlantic") and Littell International's ("Littell") motions for summary judgment. For the following reasons, we affirm in part, reverse in part, and remand.
{¶ 2} On October 5, 2005, Kerg filed a complaint (later amended on December 23, 2005) against Atlantic, alleging employer intentional tort against Littell and Minster Machine Company for product liability and negligence.
{¶ 3} In December 2006, Atlantic and Littell filed separate motions for summary judgment. On March 29, 2007, the trial court granted both motions for summary judgment.
{¶ 4} Kerg began her employment with Atlantic in 2000 in its welding department. Sometime in 2001, Kerg was promoted to a secondary press operator, earning $9.40 per hour. On November 17, 2003, Kerg was again promoted and began her on-the-job training for her new position as an automatic press operator, earning $9.87 per hour. Kerg trained under Kin Ho, an experienced automatic press operator, and Leonardo D'Larosa, an experienced forklift operator.
{¶ 5} The forklift operator's responsibility begins by transporting a 2,200 pound, five-foot steel coil on a forklift to an "Advantage 6000" Littell single centering reel with electric brake ("Littell reel"). The forklift operator then places the coil onto a loose mandrel on the Littell reel. Thereafter, the automatic press operator is responsible for placing "keepers" on the coil in order to keep the coil stabilized. In the meantime, the forklift operator keeps the coil on the lift as high as possible, so that the automatic press operator can then tighten the mandrel onto the coil. The forklift operator then removes the forklift, and the automatic press operator finishes the loading process with a front manual crank.
{¶ 6} The facts giving rise to the instant action occurred on December 29, 2003, when Kerg worked the night shift at Atlantic and operated a Littell reel as an automatic press operator. Kerg had just returned from her holiday vacation and was still deemed a "trainee." The shift supervisor, Ron Fowler, was aware that Kerg was "a little slower than most" in regard to her training.
{¶ 7} During that shift, Atlantic was understaffed because of the holidays, and neither D'Larosa nor Ho was present. Fowler assigned Kevin Kattas to work as a forklift operator alongside Kerg. Kattas had a license to operate a forklift but operated one very infrequently at Atlantic, approximately five to ten times a year, whenever he was needed.
{¶ 8} On December 29, 2003, Kattas transported a coil to Kerg's Littell reel and laid the coil on the mandrel. At this point, the forks on the forklift jerked. Kerg reached for the front manual crank with her right hand to make adjustments, having forgotten to put the keepers in place prior to making the adjustments. As Kerg was reaching for the crank, the coil fell, crushing part of her right hand.
{¶ 9} Kerg had performed this procedure independently two to three times in the weeks before she was injured. Kerg participated in only one of 12 required video training sessions and completed the applicable written exam. Kerg had not yet completed the remaining 11 lessons. Her time cards from November 17, 2003, to December 29, 2003, stated "in training" regarding her new position at Atlantic.
{¶ 10} On April 27, 2007, Kerg filed the instant appeal asserting two assignments of error for our review.
I. The trial court erred in granting summary judgment to defendant-appellee Atlantic Tool & Die Company on plaintiff's claim against it for employer intentional tort.
II. The trial court erred in granting summary judgment to defendant-appellee
Littell International, Inc. on plaintiff's product liability claim.
{¶ 11} We review motions for summary judgment de novo and thus:
[W]e afford no deference to the trial court's decision and independently review the record to determine whether summary judgment is appropriate. Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any material fact exists, (2) the party moving for summary judgment is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the non-moving party, reasonable minds can reach only one conclusion, which is adverse to the non-moving party.
(Citations omitted.) Ladanyi v. Crookes & Hanson Ltd., Cuyahoga App. No. 87888, 2007-Ohio-540, 2007 WL 416926, ¶ 10.
{¶ 12} The moving party "bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim." Dresher v. Burt, (1996), 75 Ohio St.3d 280, 662 N.E.2d 264. Conversely, the nonmoving party bears the reciprocal burden of setting forth those facts that show that there is a genuine issue of material fact. Id. at 296, 662 N.E.2d 264.
{¶ 13} With the standard of review for motions for summary judgment established, we review Kerg's two assignments of error.
{¶ 14} Kerg argues that the trial court erred in granting summary judgment in favor of Atlantic on her employer intentional tort claim. We agree.
In Ohio, an employee generally must rely on the worker's compensation system to be compensated for job-related injuries, and does not need to sue the employer in tort in order to be compensated. However, an employee may also enforce his common-law rights against his employer if the injury stems from an intentional tort. An intentional tort in this context means that the employer committed some act by which the employer intentionally and deliberately injures the employee.
(Citations omitted.) Moore v. Ohio Valley Coal Co., 7th Dist. No. 05 BE 3, 2007-Ohio-1123, 2007 WL 755386, ¶ 17.
{¶ 15} The Ohio Supreme Court, in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, set forth the standard for an employer intentional tort claim arising before April 7, 2005:1
[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.
{¶ 16} Fyffe also held: "[M]ere knowledge and appreciation of a risk— something short of substantial certainty—is not intent." Id.
{¶ 17} In applying the facts to the first prong of Fyffe, we note that the hazard must rise above the general hazards of the employment because otherwise the injury would be treated under workers' compensation. Moore, 2007-Ohio-1123, 2007 WL 755386 at ¶ 26. Thus, in order to satisfy the first prong in Fyffe, Kerg must satisfy the following two elements: "(1) there was a dangerous condition and (2) * * * [the employer] had knowledge that that dangerous condition existed." Dailey v. Eaton Corp. (2000), 138 Ohio App.3d 575, 741 N.E.2d 946.
In determining whether the condition or procedure was indeed dangerous this court cautioned: Dangerous work must be distinguished from an otherwise dangerous condition within that work. It is the latter of which that must be within the knowledge of the employer before liability could attach.
(Citations omitted.) Id. at 582, 741 N.E.2d 946.
{¶ 18} Atlantic knew that automatic press operators were subject to dangerous work, namely, loading a 2,200 pound coil onto a Littell reel. However, at issue is whether Atlantic knew that Kerg was subjected to an otherwise dangerous condition in the workplace. After reviewing the record, we agree with Kerg that there are sufficient facts demonstrating Atlantic's actual knowledge of a dangerous condition, namely, the following: assigning Kerg, a trainee, to work independently on a Littell reel; and assigning Kattas to Kerg as a forklift operator for the December 29, 2003 shift. Kattas operated a forklift only approximately five to ten times per year, and when loading coils, he loaded only approximately three coils per shift.
{¶ 19} Atlantic required automatic press operators to attend 12 training sessions in which the trainee watched a video and, thereafter, completed a written exam. The trainee was also provided a training manual and assigned to an experienced automatic press operator. The trainee first shadowed the trainer. The trainee was later supervised while executing the assigned tasks and eventually worked independently of the trainer. Training lasted anywhere from a few weeks to six months, depending upon the trainee's prior experience and ability to learn. Part five of Atlantic's safety manual, "Equipment Safety," reads: "No associate is allowed to operate equipment on which they have not been trained to operate safely and properly."
{¶ 20} By December 29,...
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