Wright v. Therm-O-Link
| Decision Date | 21 November 2016 |
| Docket Number | No. 2015–P–0059.,2015–P–0059. |
| Citation | 2016 Ohio 7840,74 N.E.3d 780 |
| Parties | Richard WRIGHT, et al., Plaintiffs–Appellants, v. THERM–O–LINK, Defendant–Appellee. |
| Court | Ohio Court of Appeals |
Steven W. Albert, Pepper Pike, OH, and James G. Joseph, Cleveland, OH, for Plaintiffs–Appellants.
Matthew M. Ries, and Kevin P. Murphy, Harrington, Hoppe & Mitchell, Ltd., Warren, OH, for Defendant–Appellee.
{¶ 1} This appeal is from the final decision in an intentional tort case. Appellants, Richard and Reille Wright, claim the trial court erred in granting summary judgment in favor of appellee, Therm–O–Link, Inc., on all pending claims. For the following reasons, summary judgment was proper.
{¶ 2} Appellee is an extrusion wire factory, with its principal place of business in Garrettsville, Portage County, Ohio. The factory manufactures insulated electrical wire products, primarily used in the automobile industry. The factory is comprised of various extrusion machines that apply insulation to bare wire or cable. One such machine is known as the "battery line" or "BY1." As the names suggests, this machine primarily produces battery cables.
{¶ 3} The BY1 machine consists of three sections, the second of which is called the "caterpuller." The caterpuller has two side-by-side conveyor belts, spaced a small distance apart. When the BY1 machine is on, the conveyor belts run continuously at a high rate of speed. After the wire or cable is removed from big containers or spools during the machine's first segment, it is directed toward the opening of the caterpuller, where there are two small rollers. In order for the wire to go between the two conveyor belts, it must go between the two rollers. The conveyor belts propel the wire toward the extrusion head, where the process of applying the insulation begins.
{¶ 4} In addition to guiding the wire as it moves toward the extrusion head, the caterpuller also maintains the proper tension on the wire so that there is no slack. If any slack develops either before or after the wire enters the caterpuller, the wire is unlikely to go between the two conveyor belts in the proper manner and it may become necessary to turn off the entire machine so that the wire can be re-positioned. Moreover, if the wire does not go through the caterpuller properly, the insulation process is adversely affected necessitating the insulation to be scraped from the wire.
{¶ 5} Immediately outside the opening to the caterpuller is a safety guard sitting directly above the moving wire. When properly positioned, it blocks objects resting upon the wire from being pulled into the caterpuller toward the "pinchpoint" of the two conveyor belts. However, the placement of the safety guard also inhibits the machine operator's ability to see whether the wire is properly going between two posts and toward the conveyor belts. To alleviate this issue, the operator can lift the safety guard away from the wire while the machine is still running. Also, attached to the guard is a separate small wire that the operator can use to lock the guard out of the "safety" position.
{¶ 6} Appellee's employee handbook expressly provides that all safety guards must be properly positioned when a machine is operating. Nevertheless, appellee requires its employees to operate the machine as efficiently as possible, producing the greatest amount of insulated wire and the least amount of scrape.
{¶ 7} In relation to machine operators, appellee prohibits possession of cell phones inside the factory. The policy is set forth in the employee handbook, and is orally explained to every new hire at the outset of his employment. In addition, each new hire is required to execute a written statement acknowledging that he was informed of the company's cell phone policy. The no cell phone policy rule is zero tolerance—possession of a cell phone results in immediate termination.
{¶ 8} Appellee hired Richard Wright as a machine operator in February 2011, and immediately assigned him to the BY1 machine. Over at least the first six weeks of employment, Richard was trained by a senior operator with prior experience on the BY1 machine. While the majority of the training was "hands-on," Richard was required to take a written test at the close of the training. According to the senior operator, he emphasized that the safety guard should always be in the "down" position whenever the conveyor belts are running.
{¶ 9} Once his training was completed, Richard became the sole operator of the BY1 machine. On December 15, 2011, near the conclusion of his shift, Richard noticed that the spool of wire he was sending through the machine would soon be empty. Consistent with typical procedure, he tied the end of the wire on the present spool to the leading edge of the wire on the spool for the next job. Based upon his prior experience, Richard was aware that the wire could become slack as the knot connecting the two spools entered the caterpuller. As a result, he was running the BY1 machine with the safety guard "up" so that he could watch the knot as it moved through the two rollers.
{¶ 10} Due to a problem with the wire, slack developed, and the wire was no longer moving between the two rollers. After fixing the problem with the spool, Richard tried to re-position the moving wire between the rollers by pushing down on the wire. When his first attempt failed, he placed his left hand behind the rollers, in the area of the caterpuller between the rollers and the conveyor belts, and again tried to push down on the wire. As he did so, his left hand got caught on the moving wire and was pulled into the narrow pinchpoint between the moving conveyor belts.
{¶ 11} Richard sustained serious injury to his left hand, including three broken fingers
. While receiving treatment at a local hospital, he gave a statement regarding the incident to appellee's human resource administrator. His statement resulted in a written report, spurring an internal investigation into the matter by appellee. As a direct result, the character of the guard was changed to a transparent material allowing the operator to see the wire going into the caterpuller even with the guard down.
{¶ 12} While recovering from his injury, Richard filed a complaint concerning the incident with OSHA. Upon conducting an on-site inspection of the BY1 machine, OSHA issued a report finding multiple safety violations. As to the caterpuller, the report found that appellee had not placed adequate safety guards in the area around the rollers and conveyor belts. Therefore, appellee was fined and required to take additional remedial measures.
{¶ 13} Within two months of his injury, Richard returned to work on light duty. A short time later, he returned to regular duty as a machine operator. However, on April 4, 2012, Richard's cell phone was found in a desk near his work area. The cell phone was confiscated without his knowledge, and he was told to report to appellee's director of human resources. When confronted with the phone, Richard admitted that it was his, and executed a written verification that his phone was found inside the factory premises. His employment was terminated.
{¶ 14} Within six months of termination, Richard and his wife, appellants, filed the underlying civil action against appellee. In addition to a claim for loss of consortium, their complaint asserts claims for intentional tort under R.C. 2745.01 and for wrongful discharge in violation of public policy. In relation to the wrongful discharge claim, their complaint made no reference to the whistleblower statute under R.C. 4113.52 ; instead, only a common law cause of action was raised.
{¶ 15} Following lengthy discovery, appellee moved for summary judgment on the entire complaint. As to the intentional tort claim, appellee contended that the undisputed facts support the conclusion that it did not act with a deliberate intent to injure Richard. The motion stressed that the injury took place while the safety guard was not in the proper position, that Richard had been instructed to always run the BY1 machine with the safety guard down, and that no other employee had been injured on the machine in over twenty-five years. Concerning the wrongful discharge claim, appellee argued that appellants could not establish that the termination was in retaliation for the filing of the OHSA complaint because the company had a legitimate business reason to fire Richard, violation of its cell phone policy. In support, appellee established that twelve other employees had previously been fired for the same reason.
{¶ 16} In response to appellee's motion, appellants maintain that, under R.C. 2745.01(A) & (B), summary judgment on the intentional tort claim is improper because of a substantial certainty that a person would suffer an injury while operating the BY1 machine. In advancing substantial certainty, they submitted the affidavit of Michael Adams, a professor of mechanical engineering and a safety expert. Adams opined that the injury to Richard was a substantial certainty because: (1) there were inadequate safety guards near the "pinchpoint" where the two conveyor belts come together inside the caterpuller; (2) Richard did not receive adequate training; and (3) the work environment was too pressurized due to the emphasis placed upon productivity. As to the wrongful discharge claim, appellants asserted that a jury could find that the cell phone violation was pretextual because his supervisor had seen his cell phone inside the factory on prior occasions, and nothing had ever been done about it until after he filed his OSHA complaint.
{¶ 17} In granting summary judgment in favor of appellee on all pending claims, the trial court first held that appellants could not satisfy the statutory standard for an intentional tort because they did not present any evidence that appellee knowingly allowed him to operate the BY1 machine with the safety guard in the "up" position. Secon...
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