Schaad v. Valley Proteins, Inc., 2006 Ohio 5273 (Ohio App. 7/28/2006)
| Decision Date | 28 July 2006 |
| Docket Number | No. 05CA41.,05CA41. |
| Parties | Timothy Schaad, Plaintiff-Appellant, v. Valley Proteins, Inc., Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Beverly J. Farlow and Ross A. Gillespie, Farlow & Associates, LLC, Dublin, Ohio, for Appellant.
Stephen C. Findley and Kevin E. Hess, Freund, Freeze & Arnold, L.P.A. Columbus, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Appellant, Timothy Schaad, appeals from a Washington County Common Pleas Court decision granting summary judgment in favor of appellee, Valley Proteins, Inc., on an employer intentional tort claim. He contends a genuine issue of material fact exists as to whether appellee committed an intentional tort. However, appellant failed to present any evidence that appellee knew that having him unload the fat and bone truck was substantially certain to result in injury. Thus, reasonable minds can only conclude appellee did not commit an intentional tort.
{¶2} Appellee is an animal by-products rendering company based out of Winchester, Virginia. In November 2000, appellee hired appellant as a truck driver at its plant in Marietta, Ohio. Appellee has three different types of truck drivers: bulk tank grease drivers, bulk drum grease drivers, and fat and bone drivers. Appellant was hired as a bulk tank grease driver. However, appellee required its bulk tank grease drivers to fill in for the fat and bone drivers as needed. Therefore, the plant manager also trained appellant in the proper procedures for loading and unloading a fat and bone truck.
{¶3} In March 2001, appellant left his job with appellee. Subsequently, in December 2002, appellee rehired appellant. Appellant was rehired as a bulk tank grease driver. However, like before, appellant was to fill in for the fat and bone drivers as needed.
{¶4} On April 28, 2003, appellant drove a fat and bone route. The next morning, appellant returned to the plant to unload the truck. Although appellant had been trained in how to unload a fat and bone truck and had helped other fat and bone drivers unload their trucks, this was his first time unloading a fat and bone truck by himself. A fat and bone truck consists of a by-products holding area that is separated from the flatbed portion of the truck by a center gate. The center gate is held in place by five bars and two pins attached to a safety lever. To release the gate, the employee unloading the truck must undertake several steps.1 First, the employee stands in the bed of the truck and removes the bars that hold the gate in place. The employee then raises the safety lever four or five inches so the employee can reach it from the top of the truck. The two pins attached to the safety lever, however, remain in the floor of the truck. After raising the safety lever four or five inches, the employee rides the tailgate to the top of the truck and steps out onto a catwalk. Once on the catwalk, the employee pulls the safety lever and releases the center gate.
{¶5} On this particular day, appellant had removed the bars holding the center gate in place and had raised the safety lever four or five inches. As appellant turned to walk toward the tailgate, the center gate released prematurely and the load rushed out, pushing appellant into the pit where the animal by-products were dumped. Appellant suffered physical injures as a result of his fall into the pit.
{¶6} On February 23, 2004, appellant filed a complaint against appellee, alleging that appellee had committed an intentional tort. Subsequently, appellee filed a motion for summary judgment. Appellant responded by filing a memorandum in opposition to the motion for summary judgment. On June 21, 2005, the trial court issued a decision granting summary judgment to appellee. The court found that appellee's affidavits and references to various parts of the record were sufficient, absent response from appellant, to demonstrate that there was no genuine issue of material fact. The court noted that appellant argued he had evidence showing that appellee knew of the dangerous process within its business operations and knew that injuries to employees were substantially certain to result from the dangerous process. However, the court found that there was no "logical or causative connection" between appellant's cited facts and his injury. In the end, the court concluded that no genuine issue of fact existed as to whether appellee committed an intentional tort. On July 6, 2005, the trial court journalized its judgment entry granting appellee's motion for summary judgment. Appellant then filed this timely appeal.
{¶7} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT-APPELLEE ON THE PLAINTIFF-APPELLANT'S CLAIMS OF EMPLOYER INTENTIONAL TORT.
{¶8} In reviewing a summary judgment, the lower court and appellate court utilize the same standard, i.e., we review the judgment independently and without deference to the trial court's determination. See Midwest Specialties, Inc. v. Firestone Tire & Rubber Co. (1988), 42 Ohio App.3d 6, 8, 536 N.E.2d 411. Summary judgment is appropriate when the following have been established: (1) that there is no genuine issue of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence against it construed most strongly in its favor. Bostic v. Connor (1988), 37 Ohio St.3d 144, 146, 524 N.E.2d 881, citing Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46. See, also, State ex rel. Coulverson v. Ohio Adult Parole Auth. (1991), 62 Ohio St.3d 12, 14, 577 N.E.2d 352; Civ.R. 56(C). The burden of showing that no genuine issue exists as to any material fact falls upon the moving party in requesting summary judgment. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115, 526 N.E.2d 798. If the moving party satisfies this burden, "the nonmoving party then has a reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial, and if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, quoting Dresher v. Burt (1996), 75 Ohio St.3d 280, 395, 662 N.E.2d 264.
{¶9} Although the workers' compensation provisions provide employees with the primary means of compensation for injury suffered in the scope of employment, an employee may institute a tort action against the employer when the employer's conduct is sufficiently egregious to constitute an intentional tort. See Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 433 N.E.2d 572. In such cases, it is said that the employer's intentional tort occurs outside the employment relationship and therefore, recovery is not limited to the workers' compensation provisions. See Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, paragraph one of the syllabus.
{¶10} 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." Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 472 N.E.2d 1046, paragraph one of the syllabus. To establish an intentional tort of an employer, the employee must demonstrate the following: "(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 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." Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus.
{¶11} Because it is dispositive, we begin our analysis with the second prong of Fyffe. Under the second prong, if the employer knows that the dangerous process is substantially certain to cause harm to the employee, intent is inferred. See Jones, 15 Ohio St.3d at 95. An employee cannot demonstrate the "substantial certainty" element simply by showing that the employer acted negligently or recklessly. See Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 484, 1998-Ohio-408, 696 N.E.2d 1044, citing Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus. In Fyffe, the Supreme Court of Ohio explained:
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 the 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.
Fyffe, 59 Ohio St.3d 115, paragraph two of the syllabus.
{¶12} "Establishing that the employer's conduct was more than negligence or recklessness `is a difficult standard to meet.'" Goodin v. Columbia Gas of Ohio, Inc. (2000), 141 Ohio App.3d 207, 220, 750 N.E.2d 1122, quoting McGee v....
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