Thompson v. Oberlander's Tree & Landscape, Ltd.

• Citation: 62 N.E.3d 630
• Decision Date: 21 March 2016
• Docket Number: No. 9–15–44.,9–15–44.
• Parties: Bret E. THOMPSON, Plaintiff–Appellant, and Ohio Bureau of Workers Compensation, Plaintiff–Appellee, v. OBERLANDER'S TREE & LANDSCAPE, LTD., et al., Defendants–Appellees.
• Court: United States Court of Appeals (Ohio)

62 N.E.3d 630

Bret E. THOMPSON, Plaintiff–Appellant,

and

Ohio Bureau of Workers Compensation, Plaintiff–Appellee,

v.OBERLANDER'S TREE & LANDSCAPE, LTD., et al., Defendants–Appellees.

No. 9–15–44.

Court of Appeals of Ohio, Third District, Marion County.

March 21, 2016.

Jami S. Oliver, Columbus, for appellant.

Bruce A. Curry, Columbus, for defendants-appellees.

OPINION

ROGERS

, J.

{¶ 1} Although originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

{¶ 2} Plaintiff–Appellant, Bret Thompson, appeals the judgment of the Court of Common Pleas of Marion County awarding Defendants–Appellees, Oberlander's Tree and Landscape LTD. (“the Company”), Roger Oberlander, and Randy Jackson (collectively “Appellees”), summary judgment. ¹

For the reasons that follow, we reverse the judgment of the trial court granting summary judgment to the Company.

{¶ 3} The following facts are undisputed. On October 6, 2011, Thompson injured his left hand while using a chainsaw to cut a tree while working for the Company. The chainsaw Thompson was using did not have the required safety hand guard to protect the operator from “kickbacks.” A “kickback” happens “when the tip of a chainsaw blade hits an obstruction, causing the blade to kick back or kick up in the air.” Appellees' Brief, p. 5. When a chainsaw experiences a “kickback,” the chainsaw's brake will be triggered once anything makes contact with the hand guard.

{¶ 4} On June 26, 2013, Thompson filed a complaint in the Court of Common Pleas of Marion County against the Appellees alleging two claims: employer intentional tort and punitive damages.

{¶ 5} The Appellees filed an answer on July 31, 2013, denying the allegations alleged in the complaint.

{¶ 6} The Appellees' insurance company, United Ohio Insurance Company (“United”), filed a motion to intervene as a party plaintiff, which included its complaint against the Appellees. United's motion was granted by the trial court on November 13, 2013. The Appellees filed their answer to United's complaint on February 14, 2014.

{¶ 7} On March 26, 2014, the Appellees filed a motion to join the Ohio Bureau of Workers Compensation (“the Bureau”) as a subrogated party because it was the real party in interest with respect to some of Thompson's claims. The motion was granted on July 21, 2014.

{¶ 8} On October 3, 2014, United filed a motion for summary judgment arguing that it did not owe the Appellees a duty to either defend or indemnify them in the case.

{¶ 9} The Bureau filed its intervening complaint against the Appellees on October 10, 2014. In its complaint, the Bureau argued that it was entitled to relief in the amount of the benefits it had paid to Thompson. The Appellees filed an answer on October 27, 2014.

{¶ 10} The trial court granted United's motion for summary judgment on December 19, 2014.

{¶ 11} The Appellees filed a motion for summary judgment as to Thompson's complaint on July 15, 2015. In its motion, the Appellees argued that Thompson had failed to present any evidence as to how the Appellees intended to injure Thompson or how they deliberately removed a safety guard. In support of their motion, the Appellees attached affidavits of Jackson and Oberlander.

{¶ 12} Thompson filed his memorandum in opposition to the Appellees' motion on August 7, 2015. Thompson argued that the Appellees deliberately removed the hand guard, which constituted an equipment safety guard, by deliberately deciding not to repair or replace the hand guard on the chainsaw Thompson was using when he was injured. In support of his motion, Thompson attached affidavits of two former employees of the Company, Roger Bowman and Mark Saum, as well as the deposition transcripts of himself, Jackson, and Oberlander.

{¶ 13} On August 25, 2015, the Appellees filed their reply to Thompson's memorandum.

{¶ 14} The trial court granted the Appellees' motion for summary judgment on October 22, 2015. The court found that Thompson had failed to present any evidence to show that the Appellees deliberately removed the hand guard. Thus, it found that there were no genuine issues of material fact and the Appellees were entitled to judgment as a matter of law. The court filed an entry of dismissal the same day, dismissing Thompson's complaint.²

{¶ 15} Thompson filed this timely appeal, presenting the following assignment of error for our review.

Assignment of Error

THE TRIAL COURT ERRED IN FINDING, AS A MATTER OF LAW, THAT AN EMPLOYEE MUST PROVE THAT THE EMPLOYER “SPECIFICALLY INTENDED TO INJURE THE PLAINTIFF” PURSUANT TO R.C. 2745.01(A)

WHERE PLAINTIFF–APPELLANT SUBMITS EVIDENCE UNDER SUBSECTION (C) FROM WHICH REASONABLE MINDS COULD FIND A “DELIBERATE REMOVAL OF A SAFETY GUARD” IN AN INTENTIONAL TORT CASE.

{¶ 16} In his sole assignment of error, Thompson argues that the trial court erred by granting the Company's motion for summary judgment. We agree.

{¶ 17} An appellate court reviews a summary judgment order de novo. Hillyer v. State Farm Mut. Auto. Ins. Co., 131 Ohio App.3d 172, 175, 722 N.E.2d 108 (8th Dist.1999)

. However, a reviewing court will not reverse an otherwise correct judgment merely because the lower court utilized different or erroneous reasons as the basis for its determination. Diamond Wine & Spirits, Inc. v. Dayton Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 2002-Ohio-3932, 774 N.E.2d 775, ¶ 25 (3d Dist.), citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 222, 631 N.E.2d 150 (1994). Summary judgment is appropriate when, looking at the evidence as a whole: (1) there is no genuine issue as to any material fact, and (2) the moving party is entitled to judgment as a matter of law. Civ.R. 56(C). In conducting this analysis the court must determine “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, [the nonmoving] party being entitled to have the evidence or stipulation construed most strongly in the [nonmoving] party's favor.” Id. If any doubts exist, the issue must be resolved in favor of the nonmoving party. Murphy v. City of Reynoldsburg, 65 Ohio St.3d 356, 358–359, 604 N.E.2d 138 (1992).

{¶ 18} The party moving for summary judgment has the initial burden of producing some evidence which demonstrates the lack of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996)

. In doing so, the moving party is not required to produce any affirmative evidence, but must identify those portions of the record which affirmatively support his argument. Id. at 292, 662 N.E.2d 264. The nonmoving party must then rebut with specific facts showing the existence of a genuine triable issue; he may not rest on the mere allegations or denials of his pleadings. Id.; Civ.R. 56(E).

{¶ 19} R.C. 2745.01

is Ohio's employer intentional tort statute. It states, in relevant part:

(A) In an action brought against an employer by an employee, * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

(B) As used in this section, ‘substantially certain’ means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

(C) Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury * * * occurs as a direct result.

Id.

{¶ 20} Within the last few years, the Supreme Court of Ohio has defined both “equipment safety guard” and “deliberate removal.” See Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 26, 30

. The court first found that an “equipment safety guard” is “ ‘a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.’ ” Id. at ¶ 26, quoting Fickle v. Conversion Technologies Internatl., Inc., 6th Dist. Williams No. WM–10–016, 2011-Ohio-2960, 2011 WL 2436750, ¶ 43.

{¶ 21} Next, the Hewitt court found that an employer deliberately removes a safety guard “when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” Id. at ¶ 30. In doing so, the court noted that “[a]lthough ‘removal’ may encompass more than physically removing a guard from equipment and making it unavailable, such as bypassing or disabling the guard, an employer's failure to train or instruct an employee on a safety procedure does not constitute the deliberate removal of an equipment safety guard.” Id. at ¶ 29, citing Fickle at ¶ 45.

{¶ 22} To support its finding that “removal” constitutes more than the physical removing of a safety guard, the Hewitt court also cited the Seventh District's decision in Wineberry v. N. Star Painting Co., 7th Dist., 2012-Ohio-4212, 978 N.E.2d 221

. In Wineberry, an employee was injured when he fell 15 feet from some scaffolding that had buckled. Id. at ¶ 4. While falling, the employee sandblasted his arm. Id. The employee argued that he would not have fallen had his employer installed guardrails on the scaffolding. Id. at ¶ 17. Further, he argued that the decision not to place guardrails on the scaffolding constituted a deliberate removal. Id. at ¶ 28. To an extent, the court agreed and found “that deliberate removal not only encompasses removing safety equipment, but also the failure to attach safety equipment provided by the manufacturer. ” (Emphasis added.) Id. at ¶ 38. However, the court affirmed the trial court's judgment awarding summary judgment to the employer because the employee failed to present any evidence that the guardrails were either...