Priscilla Goodin, Individually and as the Administrator of the Estate of Michael S. Sheroan v. Columbia Gas of Ohio, Inc., 00-LW-1180

• Decision Date: 13 March 2000
• Docket Number: 00-LW-1180,99 CA 30
• Parties: PRISCILLA GOODIN, Individually and as the Administrator of the Estate of Michael S. Sheroan, Deceased, Plaintiff-Appellant v. COLUMBIA GAS OF OHIO, INC. et al., Defendants-Appellees Case
• Court: Ohio Court of Appeals

PRISCILLA GOODIN, Individually and as the Administrator of the Estate of Michael S. Sheroan, Deceased Plaintiff-Appellant v. COLUMBIA GAS OF OHIO, INC. et al Defendants-Appellees

No. 99 CA 30.

00-LW-1180 (4th)

Court of Appeals of Ohio, Fourth District Athens

March 13, 2000

COUNSEL FOR APPELLANT: Michael F. Colley, Daniel N. Abraham, and David K. Frank, 536 South High Street, Columbus, Ohio 43215

COUNSEL FOR APPELLEE: Stephen L. Hebenstreit, 200 Civic Center Drive P.O. Box 117, Columbus, Ohio 43216-0117 and Andrew J. Sonderman, Of Counsel.

DECISION

ABELE J.

This is an appeal from an Athens County Common Pleas Court summary judgment entered in favor of Columbia Gas of Ohio, Inc., defendant below and appellee herein.

Priscilla Goodin, individually and as administrator of the

estate of Michael S. Sheroan, deceased, plaintiff below and

appellant herein, raises the following assignments of error for

review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT PRISCILLA GOODIN IN GRANTING SUMMARY JUDGMENT IN FAVOR OF COLUMBIA GAS OF OHIO, INC ("COLUMBIA GAS") AND IN DISMISSING HER INTENTIONAL TORT CLAIM AGAINST COLUMBIA GAS SINCE THAT COMPANY WAS NOT ENTITLED TO SUMMARY JUDGMENT UNDER CIVIL RULE 56 BECAUSE GENUINE ISSUES OF MATERIAL FACT WERE PRESENTED FOR DETERMINATION BY THE JURY."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT PRISCILLA GOODIN IN GRANTING SUMMARY JUDGMENT IN FAVOR OF COLUMBIA GAS AND IN DISMISSING THE APPELLANT'S INTENTIONAL TORT CLAIM AGAINST COLUMBIA GAS, SINCE COLUMBIA GAS WAS NOT ENTITLED TO JUDGMENT AS A MATTER OF LAW."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT'S ACTION IN GRANTING COLUMBIA GAS' MOTION FOR SUMMARY JUDGMENT ABRIDGED THE APPELLANT'S CONSTITUTIONAL RIGHT TO A JURY TRIAL GUARANTEED BY ARTICLE I, SECTION 5 OF THE OHIO CONSTITUTION AND THE SEVENTH AMENDMENT TO THE U.S. CONSTITUTION."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT'S ACTION IN GRANTING COLUMBIA GAS' MOTION FOR SUMMARY JUDGMENT ABRIDGED THE APPELLANT'S CONSTITUTIONAL RIGHT TO A REMEDY AND TO JUSTICE GUARANTEED BY ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

Our review of the record reveals the following facts pertinent to the instant appeal. On May 30, 1996, Columbia Gas employees Michael S. Sheroan and Jeff Gillogly were dispatched to 9 Riverview Drive in Athens, Ohio to check on a leaking curb valve. While attempting to replace the curb valve "on the fly" and without an oxygen monitor, both men apparently died of asphyxiation.

Changing a curb valve "on the fly" is a procedure in which Columbia Gas employees commonly engage. To change a valve "on the fly" is to change a valve with live natural gas flowing

through the line. The process results in the employee being

exposed to natural gas. one recognized hazard of exposure to

natural gas is that it creates an oxygen deficient environment.

While Columbia Gas safety personnel did not specifically approve

of its employees changing valves "on the fly," Columbia Gas

nevertheless knew that its employees commonly engaged in the

process and did not prohibit or implement any policy advising

employees to avoid changing valves "on the fly."

To alleviate the risk that an employee may be subjected to an oxygen deficient environment, Columbia Gas, beginning in 1995,

required at least one member of a crew to have an oxygen monitor

on his person prior to entering an excavation. The specific

procedure, Number 445-4, stated: "When entering and working in

excavations and trenches the following action shall be taken to

provide adequate protection against serious physical harm * * *

an approved oxygen monitor * * * shall be worn by one of the

employees in the excavation." Columbia Gas specifically

instructed its employees that anytime they entered an excavation

that had a live gas line in it, at least one member of the crew

must have an oxygen monitor.

An oxygen monitor plays an important role in determining whether sufficient oxygen is present in an excavation. The oxygen monitor would alert if the crew member encountered an oxygen deficient environment. If the oxygen monitor alerted, the employee had several options: the employee could "purge, ventilate the hole, make the hole bigger, for] reposition [his or her] self."

The Athens area office of Columbia Gas assigned each senior fitter an oxygen monitor. The senior fitter often was assigned to work with a newer fitter. Gillogly, as a senior fitter, received an oxygen monitor. Because Columbia Gas apparently expected that Sheroan, who was not a senior fitter, would always be part of a two-man crew that would include a senior fitter who would possess an oxygen monitor, Columbia Gas did not assign Sheroan an oxygen monitor.

In May of 1996, Sheroan and Gillogly were performing tasks as a two-man crew. In the early part of May, Gillogly informed his supervisor that he was having problems with his oxygen monitor. It was eventually determined that Gillogly's oxygen monitor needed to be repaired or replaced. Until Columbia Gas equipped Gillogly with either a repaired or a replaced oxygen monitor, William Allen, Gillogly's and Sheroan's supervisor, advised Gillogly that he would not be in possession of his own oxygen monitor.

James Lou Childress, the operations manager at the time of the incident, became aware that Gillogly's crew would not have an oxygen monitor. Childress testified that he informed Allen that until Gillogly's crew was issued an oxygen monitor, Allen should assign the crew jobs that would not require an oxygen monitor. Childress explained that plenty of work was available to Gillogly and Sheroan that did not require the use of an oxygen monitor. Childress also told Allen that "if [Gillogly and Sheroan] come into a situation where they need [an oxygen monitor] they should

call for back up or call for somebody to come up that had one."

Allen stated that he told both Gillogly and Sheroan "numerous" times that they were not to perform tasks that required the use of an oxygen monitor, unless they had an oxygen monitor available. In his deposition, he stated that he "wouldn't have them work in an excavation with a live gas line without [an oxygen monitor]." Allen informed both men that if they encountered a situation that required the use of an oxygen monitor, they should contact another crew or the dispatcher to determine whether they could borrow an oxygen monitor. Allen further stated that he informed Gillogly that "if [Gillogly and Sheroan] entered a situation he was to get [an oxygen monitor] or back off and do something different. He ha[d] an alternative."

On May 30, 1996, Allen, aware that Gillogly's crew did not have an oxygen monitor in its possession, dispatched Gillogly and Sheroan to 9 Riverview Drive to check on a curb valve leak. Allen testified that when he dispatched the two men to the site, he did not know whether the situation would require an oxygen monitor. Allen explained that he did not know whether the situation would require an oxygen monitor, because Gillogly and Sheroan had at least two methods available to them at the time and location of their deaths that would not have required the use of the oxygen monitor. Allen admitted that replacing the valve would expose the men to natural gas, but he asserted that replacing the valve was only one of the options available to the two men. Allen did not, however, explain what other options were available. He further stated that he would not recommend that a crew be sent to work at a site containing a live gas line without an oxygen monitor.

Exactly what happened when Gillogly and Sheroan arrived at the site is unknown. Apparently, however, the two men entered the excavation without an oxygen monitor and attempted to change a valve "on the fly," resulting in their deaths.

On May 29, 1997,^[1] appellant filed a complaint alleging, inter alia, that appellee committed an intentional tort against decedent.^[2] Appellee filed an answer denying liability.

On September 18, 1998, appellee filed a motion for summary judgment. Appellant opposed appellee's motion, and on May 26, 1999, the trial court granted appellee's motion for summary judgment. Appellant filed a timely notice of appeal.

I

Appellant's first and second assignments of error both address the propriety of the trial court's decision granting summary judgment. We therefore will address the two related assignments of error together.

In her first and second assignments of error, appellant complains that the trial court erred by granting summary judgment in appellee's favor. Specifically, appellant contends that genuine issues of material fact remain for resolution at trial as to whether she established the elements required to maintain an action against an employer for an intentional tort. Appellee contends that the trial court properly determined that no genuine issues of material fact remained regarding appellant's intentional tort claim.

A. STANDARD OF REVIEW

When reviewing a trial court's decision regarding a motion for summary judgment, an appellate court conducts a de novo review. See, e.g., Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241, 245. Accordingly, an appellate court must independently review the record to determine if summary judgment was appropriate and need not defer to the trial court's decision. See Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153, 1157; Morehead v Conley (1991), 75 Ohio App.3d 409, 411-12, 599 N.E.2d 786, 788. In determining whether a trial court properly granted a motion for summary judgment, an appellate court must review the standard for granting a motion for summary judgment as...