Turner v. Dimex, LLC
| Decision Date | 11 October 2019 |
| Docket Number | No. 19CA3,19CA3 |
| Citation | 147 N.E.3d 35,2019 Ohio 4251 |
| Parties | Tim A. TURNER, Plaintiff-Appellant, v. DIMEX, LLC, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
James R. Leach, Parkersburg, West Virginia, for Appellant.
Cari Fusco Evans, Fischer, Evans & Robbins, Ltd., Canton, Ohio, for Appellee.
DECISION AND JUDGMENT ENTRY
{¶1} Tim Turner appeals the February 11, 2019 judgment entry of the Washington County Court of Common Pleas which granted judgment to his employer, Dimex, LLC, on his claim for intentional tort. Turner asserts the trial court erred in granting judgment to Dimex, LLC. Having reviewed the record, we agree with the trial court's conclusions that: (1) the forklift backup alarm at issue is not an "equipment safety guard"; and, (2) there is no evidence that Dimex deliberately removed the backup alarm. Accordingly, we overrule the sole assignment of error and affirm the judgment of the trial court.
{¶2} Dimex "Appellee" is a manufacturing facility in Marietta, Ohio. Tim Turner "Appellant" was employed by Appellee as a shipping clerk. On December 14, 2015 while at work, Appellant incurred serious injuries requiring multiple surgeries to his right leg when he was crushed between two forklifts on the plant's loading dock.
{¶3} On November 27, 2017, Appellant filed a complaint against Appellee alleging permanent personal injuries and associated losses and damages as a result of Appellee's deliberate removal of an equipment safety guard on one of its forklifts. Appellee filed a timely answer, alleging that it was entitled to Workers Compensation immunity pursuant to R.C. 2745.01. Appellee also alleged Appellant's injuries were caused by his own negligence and failure to follow procedures. As the trial court proceedings unfolded, the parties engaged in written discovery and depositions.
{¶4} On December 17, 2018, both Appellant and Appellee filed motions for summary judgment. The parties also filed responsive pleadings. On February 11, 2019, the trial court filed a Judgment Entry Regarding Motions for Summary Judgment which granted Appellee's motion and denied Appellant's motion.
{¶5} This timely appeal followed. Where pertinent, additional facts are set forth below.
{¶6} Appellate review of summary judgment decisions is de novo, governed by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-Ohio-3020, 992 N.E.2d 1126, ¶ 19 ; Citibank v. Hine, 4th Dist. Ross, 2019-Ohio-464, 130 N.E.3d 924, at ¶ 27. Summary judgment is appropriate if the party moving for summary judgment establishes that (1) there is no genuine issue of material fact, (2) reasonable minds can come to but one conclusion, which is adverse to the party against whom the motion is made and, (3) the moving party is entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th Dist. Ross No. 18CA3628, 2018-Ohio-2209, 2018 WL 2749510, at ¶ 23 ; Civ.R. 56 ; New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d 157, ¶ 24 ; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409, 2014-Ohio-3484, 2014 WL 3940314, at ¶ 26.
{¶7} The moving party has the initial burden of informing the trial court of the basis for the motion by pointing to summary judgment evidence and identifying parts of the record that demonstrate the absence of a genuine issue of material fact on the pertinent claims. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996) ; Chase Home Finance at ¶ 27 ; Citibank, supra, at ¶ 28. Once the moving party meets this initial burden, the non-moving party has the reciprocal burden under Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue remaining for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264. See also Rose, supra, at ¶ 24.
{¶8} Pursuant to the above rule, a trial court may not enter summary judgment if it appears a material fact is genuinely disputed. Ball v. MPW Indus. Servs., Inc., 2016-Ohio-5744, 60 N.E. 3d 1279 (5th Dist.) at ¶ 29, citing, Vahila v. Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).
{¶9} Prior to April 7, 2005, the courts looked to common law to determine whether an employee established his or her employer committed an intentional tort. Pursuant to Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108 (1991), when an employer proceeds despite knowledge that injuries are certain or substantially certain to result, "he is treated by the law as if he had in fact desired to produce the result." Under Fyffe, an employee could establish intent based on substantial certainty by establishing 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 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. See Breitenbach v. Double Z Constr. Co., 2016-Ohio-1272, 63 N.E.3d 498, ¶ 28 citing Fyffe; Ball, supra, at ¶ 30.
{¶10} R.C. 2745.01, effective April 7, 2005, provides in pertinent part:
Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, at ¶¶ 48-50.
{¶11} In Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, at ¶ 11, the Supreme Court of Ohio observed:
The General Assembly's intent in enacting R.C. 2745.01 was to ‘significantly restrict’ recovery for employer intentional torts to situations in which the employer ‘acts with specific intent to cause an injury.’ Kaminski, supra, at ¶ 56 ; Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 26. ‘[A]bsent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee's exclusive remedy is within the workers' compensation system.’ Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 25.1
{¶12} Appellant argues that he is entitled to the presumption of intent to injure pursuant to R.C. 2745.01(C) because Appellee made a deliberate decision to leave a forklift in service when it knew that the backup alarm was inoperable and failed to repair or replace it. The trial court herein found that the forklift backup alarm is not an "equipment safety guard since it does not shield the operator from exposure or injury." The court also found that Appellant is not entitled to the presumption of intent to injure since he was not the "operator" of the forklift.
{¶13} Our research has led us to various cases which have considered the issue of the meaning of "equipment safety guard" within the context of R.C. 2745.01(C). In Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, the Supreme Court of Ohio found that free-standing items that serve as physical barriers between the employee and potential exposure to injury, such as rubber gloves and sleeves, do not constitute "equipment safety guards." Id. at ¶ 30. In Beyer v. Rieter Automotive North American, 134 Ohio St.3d 379, 2012-Ohio-5627, 982 N.E.2d 708, the Hewitt decision, the Supreme Court reversed the decision of the Eighth District Court of Appeals that found that face masks were equipment safety guards, and consequently entered judgment in favor of the employer. In Houdek, supra, at ¶ 27, the Supreme Court determined that safety devices such as orange cones, reflective vests, and retractable gates are not equipment safety guards. The Supreme Court has also declined to accept cases in which appeals courts determined that the following were not equipment safety guards: a trench box designed to protect workers from a trench collapse; a jib crane and an observation platform (part of a system of safety devices implemented on a tire shredder); and a tire bead and bead taper, parts of a wheel assembly unit. See Barton v. G.E. Baker Construction, 9th Dist. Lorain No. 10CA009929, 2011-Ohio-5704, 2011 WL 5345400 ; Downard v. Rumpke of Ohio, Inc., 12th Dist., 2013-Ohio-4760, 3 N.E.3d 1270 ; Roberts v. RMB Ents., Inc., 197 Ohio App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263 (12th Dist.). More recently, the Fifth District Court of Appeals found that a clevis shackle, separate from a crane and for the purpose of making rigging equipment more safe, is not an equipment safety guard. See Breitenbach, supra.
{¶14} The Fifth District Court of Appeals also considered a fact pattern and arguments similar to Appellant's in Beary v. Larry Murphy Dump...
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