Wineberry v. N. Star Painting Co.

• Decision Date: 14 September 2012
• Docket Number: No. 11 MA 103.,11 MA 103.
• Citation: 978 N.E.2d 221
• Parties: William WINEBERRY, Plaintiff–Appellant, v. NORTH STAR PAINTING CO., et al., Defendants–Appellees.
• Court: Ohio Court of Appeals

978 N.E.2d 221

William WINEBERRY, Plaintiff–Appellant,

v.NORTH STAR PAINTING CO., et al., Defendants–Appellees.

No. 11 MA 103.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Sept. 14, 2012.

Jeffrey Leikin, Brenda Johnson, Cleveland, OH, for plaintiff-appellant.

John Pfau, Youngstown, OH, for defendants-appellees.

VUKOVICH, J.

{¶ 1} Plaintiff-appellant William Wineberry appeals the decision of the Mahoning County Common Pleas Court granting summary judgment in favor of defendant-appellee North Star Painting Company, Inc. The trial court ruled that there was no evidence presented that created a genuine issue of material fact that North Star intended to injure Wineberry. Specifically, the trial court found that under R.C. 2745.01(C) there was not a rebuttable presumption of intent to injure by the deliberate removal of a safety device because to deliberately remove a safety device requires that the device was originally contained on the object in question. In this case, the alleged safety device, guardrails, were not.

{¶ 2} Wineberry finds fault with the trial court's narrow interpretation of deliberate removal and contends that a rebuttable presumption was created because guardrails were not installed around the perches Wineberry was required to use to perform his job. That failure to act, according to him, amounts to a deliberate removal. North Star disagrees with Wineberry's position and contends the trial court's interpretation is correct.

{¶ 3} For the reasons expressed below, we find the trial court's interpretation of deliberate removal to be overly narrow. Deliberate removal, as contemplated by R.C. 2745.01(C), not only encompasses the act of removing a safety device, but also the act of failing to install a safety device that is required by the manufacturer. That said, summary judgment is still warranted because there is no evidence to support the position that the perches were required to have guardrails. Thus, the trial court's decision is hereby affirmed.

Statement of Case

{¶ 4} On July 21, 2008 Wineberry filed an employer intentional tort action against North Star. This action was the result of an injury that occurred to Wineberry on July 24, 2006, while in Ashland, Kentucky working on the 13th Street Bridge. North Star was hired by the State of Kentucky to paint the bridge; Wineberry was employed by North Star as a painter/sandblaster. His injury occurred while he was sandblasting a part of the bridge. According to him, he was out on a perch that extended from the swing stage of the scaffolding when the scaffolding buckled and he fell approximately 15 feet. During the fall he sandblasted his arm. In the complaint it is alleged that at the time of incident, the perch and scaffolding lacked the necessary and required safety equipmentand fall protection which would have prevented the incident.

{¶ 5} North Star answered the complaint on July 1, 2009. Extensive discovery by way of depositions then occurred.

{¶ 6} In August 2010, North Star filed a motion for summary judgment arguing that R.C. 2745.01, the statute on employer intentional torts, is applicable and there is no evidence that North Star intended to cause injury to Wineberry. On September 16, 2010, Wineberry filed a motion in opposition to summary judgment. He contended that the failure to have safety guards is evidence of intent to cause injury. He cited to R.C. 2745.01(C), the section on deliberate removal of safety guards. North Star replied in January 2011.

{¶ 7} In March 2011, the magistrate issued its decision. The magistrate applied R.C. 2745.01 and found that there is no evidence that North Star directly intended to cause injury to Wineberry. It also found that R.C. 2745.01(C) was not applicable because there was no evidence that North Star removed a safety guard. It specifically stated:

The statute is clear that in order to trigger Section C, there must be a deliberate removal by the employer of an equipment safety guard. The statute does not say in the construction or assembly of equipment that failure to construct or assemble the equipment with safety guards constitutes a rebuttable preemption. The legislative intent is clear from the statute and the statute cannot be rewritten beyond the clear meaning of the language. Had the legislature intended to include in Section C that the failure to install a safety guard is tantamount to deliberate removal, they would have stated it. The enactment of R.C. 2745.01 by the general assembly has statutory narrowed the common law definition to “direct intent” torts only.

{¶ 8} Wineberry objected to the decision and North Star filed responses to those objections. Upon reviewing the objections and responses, the trial court overruled the objections, affirmed the magistrate's decision, and granted summary judgment in favor of North Star. 06/02/11 J.E. Wineberry timely appeals.

Assignment of Error

{¶ 9} “The trial court erred in adopting the magistrate's decision granting summary judgment in favor of defendant-appellee North Star Painting Co., Inc.”

{¶ 10} In reviewing a summary judgment award, we apply a de novo standard of review. Cole v. Am. Industries & Resources Corp., 128 Ohio App.3d 546, 552, 715 N.E.2d 1179 (1998). Thus, we apply the same test as the trial court. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming, 68 Ohio St.3d 509, 511, 628 N.E.2d 1377 (1994).

{¶ 11} The statute on employer intentional torts is R.C. 2745.01. It provides:

{¶ 12} “(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased 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.

{¶ 13} “(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.

{¶ 14} “(C) Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.” R.C. 2745.01.

{¶ 15} The trial court and magistrate found that Wineberry could not establish a material issue of fact that North Star specifically intended to cause injury to Wineberry and it further found that division (C) was inapplicable.

{¶ 16} Our analysis begins with whether the facts asserted show intent to cause injury under division (A).

{¶ 17} The parties dispute how this accident occurred. Wineberry stated in his deposition that he had bypassed the dead man switch on the sand blasting unit so that it would stay on. He stated he would duct tape the dead man switch every morning. (Wineberry Depo. 83). He indicated that every man operating a sandblaster would do this. (Wineberry Depo. 83). To use the sandblaster, the dead man switch had to be pressed on and when it was released, the unit would automatically shut off. Wineberry called an expert witness that stated had the right fall protection (guardrails) been utilized Wineberry would not have lost control of the sandblasting gun and would not have blasted himself with it. (Wright Depo. 73).

{¶ 18} North Star contends that the injury would not have occurred if Wineberry had not deactivated the dead man switch; when he fell the sandblaster would have turned off because his hand would not be on the dead man switch and he would not have gotten shot with the sandblaster.

{¶ 19} North Star also appears to claim that Wineberry did not fall off the perch, but instead jumped off after he accidentally sandblasted his arm. It asserts that Wineberry's version of events is not plausible. He contends that he fell 15 feet and landed on “the piece of concrete that helps cars from falling off the bridge.” (Wineberry Depo. 61). His only injury was the sandblast to his arm. North Star contends that there would have been other injuries if he had fallen 15 feet and landed on concrete. Furthermore, other employees testified that the scaffolding was almost the height of the bridge roadway, not 15 feet above it. (Likouris Depo. 18; Klimis Depo. 20–21). In fact, Gus Klimis, who was working with Wineberry that day on the same scaffolding stated that he did not feel the scaffold buckle, the scaffold was at road level and that he did not know that Wineberry was injured until someone unplugged his equipment. He explained:

{¶ 20} “When it's happening was exactly on the roadway. Because like I say, I walk and open the curtains and I went out. And they told me what happened.

{¶ 21} “Q. So when you walked out of the curtains you stepped right on the roadway?

{¶ 22} “A. Yes.” (Klimis Depo. 20).

{¶ 23} Thus, there are different theories as to how this injury occurred. The plausibility of the theories is for the jury to decide. On summary judgment the court views the evidence in the light most favorable to the nonmoving party. Thus, we must accept Wineberry's version of the accident that he fell 15 feet and sandblasted his arm during the fall.

{¶ 24} The testimony shows that there were fall protection policies in place. For instance the sandblasters used safety ropes; the ropes were placed around a higher beam and would help prevent the sandblasters from falling off the scaffolding. On the day of the accident, Wineberry's safety rope was not in place when he arrived at the job...