Page v. Taylor Lumber, Inc.

• Citation: 161 Ohio App.3d 644,2005 Ohio 3104,831 N.E.2d 1017
• Decision Date: 14 June 2005
• Docket Number: No. 03CA2915.,03CA2915.
• Parties: PAGE et al., Appellants, v. TAYLOR LUMBER, INC. et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 1017

831 N.E.2d 1017

161 Ohio App.3d 644

2005 Ohio 3104

PAGE et al., Appellants, v. TAYLOR LUMBER, INC. et al., Appellees.

No. 03CA2915.

Court of Appeals of Ohio, Fourth District, Scioto County.

Decided June 14, 2005.

COPYRIGHT MATERIAL OMITTED

Brian G. Miller, David A. Goldstein, and Frank A. Ray, Columbus, for appellants.

Jeffrey D. Swick, Stephen K. Sesser, and John A. Zervas, Columbus, for appellee, Taylor Lumber, Inc.

PER CURIAM.

{¶ 1} Lidora and Brent Page appeal the judgment of the Scioto County Court of Common Pleas granting summary judgment to Taylor Lumber, Inc. ("Taylor"). The Pages contend that the trial court erred in granting summary judgment to Taylor on their employer intentional-tort claim. Because we find that the Pages failed to satisfy the three-pronged test established by the Ohio Supreme Court in Fyffe v. Jeno's (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, to support an employer intentional tort, we overrule their assignment of error. Accordingly, we affirm the judgment of the Scioto County Court of Common Pleas.

I

{¶ 2} Taylor manufactures hardwood flooring. In Taylor's McDermott, Ohio plant, an end trimmer cuts lumber to a specific length. Then, the lumber moves to another area of the plant where other employees hand grade the lumber. The pieces of scrap lumber cut by the end trimmer fall onto a conveyor belt below the end trimmer, along with large quantities of sawdust, wood shavings, and chips. The conveyor belt then carries the debris to a dumpster. Some of the debris, however, falls onto the floor around the conveyor belt, where laborers periodically sweep up the debris and place it on the conveyor belt for disposal.

{¶ 3} Lidora worked as a laborer in Taylor's trimmer building. On August 7, 2000, Lidora's supervisor, Rick Phipps, instructed her to clean in the general area of the conveyor belt. While she was cleaning the area around the end trimmer and conveyor belt, she noticed a piece of scrap wood caught in the conveyor belt. When Lidora attempted to remove the piece of scrap wood from the moving conveyor belt with her hand, her hand became stuck, and she was pulled into the conveyor belt. As a result, she suffered injuries to her hand, arm, and torso.

{¶ 4} Lidora and her husband, Brent, filed a complaint against Taylor and five John Doe manufacturers, sellers, suppliers, or servicers of the conveyor belt, alleging employer intentional tort, strict liability, products liability, negligence, and loss of consortium.

{¶ 5} On July 29, 2003, Taylor filed a motion for summary judgment. The Pages filed their memorandum contra Taylor's motion for summary judgment on August 26, 2003, and Taylor filed a reply memorandum on September 3, 2003.

{¶ 6} On September 9, 2003, the trial court granted Taylor's motion for summary judgment, finding that the Pages failed to satisfy the three-pronged test established by the Ohio Supreme Court in Fyffe, supra, to support an employer intentional tort. The trial court found that the Pages had failed to demonstrate that a dangerous condition existed within Taylor's business operation at the time of Lidora's accident. Additionally, the trial court found that the Pages had failed to demonstrate that Taylor had knowledge of the dangerous condition or the existence of a substantial certainty of injury if Lidora was subjected to the dangerous condition. Finally, the trial court found that the Pages had failed to demonstrate that Taylor required Lidora to perform the dangerous task that caused her injury. Accordingly, the trial court determined that there was no genuine issue of material fact and granted Taylor judgment as a matter of law.

{¶ 7} The Pages appeal, raising the following assignment of error: "The trial court erred by granting summary judgment for Taylor Lumber, Inc. (`Appellee') as there remain genuine issues of material fact that a jury should be allowed to consider with respect to whether Appellee's conduct constituted an employer intentional tort."¹

II

{¶ 8} Summary judgment is appropriate when the court finds that the following factors have been established: (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his or her favor. Civ.R. 56. See Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881; Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 375 N.E.2d 46; Morehead v. Conley (1991), 75 Ohio App.3d 409, 411, 599 N.E.2d 786. "In reviewing the propriety of summary judgment, an appellate court independently reviews the record to determine if summary judgment is appropriate. Accordingly, we afford no deference to the trial court's decision in answering that legal question." Id., at 411-412, 599 N.E.2d 786. See, also, Schwartz v. Bank One, Portsmouth, N.A. (1992), 84 Ohio App.3d 806, 809, 619 N.E.2d 10.

{¶ 9} The burden of showing that no genuine issue of material fact exists falls upon the party requesting summary judgment. Dresher v. Burt (1996), 75 Ohio St.3d 280, 294, 662 N.E.2d 264, citing Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. The moving party bears this burden even for issues for which the nonmoving party may bear the burden of proof at trial. Id. "However, once the movant has supported his motion with appropriate evidentiary materials, the nonmoving party may not rely upon the allegations and/or denials in his pleadings. * * * He must present evidentiary materials showing that a material issue of fact does exist." Morehead, 75 Ohio App.3d at 413, 599 N.E.2d 786.

{¶ 10} In Ohio, an employee's only recourse for compensation for job-related injuries is generally through the workers' compensation system. However, an employee may enforce his common-law rights against his employer for an intentional tort. Blankenship v. Cincinnati Milacron Chem., Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572.

{¶ 11} In an employer intentional-tort action, upon motion for summary judgment by the defendant employer, the plaintiff employee must set forth specific facts that show that there is a genuine issue of fact as to whether the employer has committed an intentional tort against his employee. Fyffe, 59 Ohio St.3d at 119, 570 N.E.2d 1108, quoting Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph seven of the syllabus. Specifically, to avoid summary judgment, the employee must establish all three of the following elements: "(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, than 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." Fyffe, 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus.

{¶ 12} It is generally recognized that the workers' compensation system "operates as a balance of mutual compromise between the interests of the employer and employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability." Blankenship, 69 Ohio St.2d at 614, 23 O.O.3d 504, 433 N.E.2d 572. In order to preserve the workers' compensation system, the standards for maintaining an intentional tort action must be strictly construed or the exception will interfere with the purposes of the Workers' Compensation Act. Van Fossen, 36 Ohio St.3d at 113-114, 522 N.E.2d 489.

A

{¶ 13} The first element of the Fyffe test requires the employee to establish that the employer possessed knowledge of a dangerous process, procedure, instrumentality, or condition within its business operations. In order to satisfy this element, the employee must demonstrate that (1) a dangerous condition existed within the employer's business operations and (2) that the employer had knowledge that the dangerous condition existed. See Dailey v. Eaton Corp. (2000), 138 Ohio App.3d 575, 581-582, 741 N.E.2d 946.

{¶ 14} When determining whether a machine is dangerous, we must determine whether it presented a danger that "falls outside the `natural hazards of employment,' which one assumes have been taken into consideration by employers when promulgating safety regulations and procedures." Brookover v. Flexmag Indus., Inc. (Apr. 29, 2003), Washington App. No. 00CA49, 2002 WL 1189156.

{¶ 15} Here, construing the evidence in a light most favorable to the Pages, we find that a reasonable trier of fact could conclude that Taylor had actual knowledge that a dangerous instrumentality or condition existed in its trimmer operation.

{¶ 16} The Pages' expert, Gerald Rennell, testified that based upon his training and experience in an industrial setting, "[i]n-running nip points are recognized as the most serious of hazards."² In its brief, Taylor admits that the nip point on the subject conveyor belt was not guarded. However, Taylor argues that it had no knowledge that the unguarded nip point presented any danger to its employees. Taylor claims that the unguarded nip point was not dangerous because employees did not regularly work in close proximity to the unguarded nip point and because there is no evidence of any previous injury arising from the subject conveyor belt.

{¶ 17} The Pages, however, contend that Taylor had knowledge of the danger posed by the conveyor's unguarded nip point because on several occasions, the company's supervisors observed employees...