Youssef v. Parr, Inc.

• Decision Date: 04 October 1990
• Docket Number: No. 56821,56821
• Citation: Youssef v. Parr, Inc., 69 Ohio App.3d 679, 591 N.E.2d 762 (Ohio App. 1990)
• Parties: YOUSSEF et al., Appellees and Cross-Appellants, v. PARR, INC., Appellant and Cross-Appellee. *
• Court: Ohio Court of Appeals

Page 679

69 Ohio App.3d 679

591 N.E.2d 762

YOUSSEF et al., Appellees and Cross-Appellants, v.PARR, INC., Appellant and Cross-Appellee. ^*

No. 56821.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Oct. 4, 1990.

Thomas L. Meros, Cleveland, for appellees and cross-appellants.

W. Andrew Hoffman, III and Gregory E. O'Brien, Cleveland, for appellant and cross-appellee.

PATTON, Chief Judge.

Defendant-appellant and cross-appellee, Parr, Inc., appeals from a jury verdict in favor of plaintiff-appellees and cross-appellants, Nasser and Sally Youssef, in this intentional tort action.The jury awarded Nasser Youssef $800,000 in compensatory damages and $1,000,000 in punitive damages and $125,000 to his wife, Sally, for her loss of consortium claims.

Nasser Youssef was an employee of the appellantParr, Inc.("Parr") and injured his back twice, on September 4, 1984 and June 15, 1985, respectively.Appellant stipulated to the first injury but denied that the second injury occurred.Appellant assigns nine errors for our review.Nasser and Sally Youssef cross-appeal and assign three errors for our review.The evidence adduced by plaintiffs disclosed the following:

During June 1984 Nasser took a two-week vacation to visit his sick mother in Egypt.Nasser stayed in Egypt for an additional two weeks.When Nasser returned to work, he found out the plant manager, Bill Lebus, had fired him.Nasser proceeded to present medical documentation showing that he had been under a doctor's care in Egypt and that his father-in-law had called Parr to inform them of Nasser's situation.¹Thus, Nasser was reinstated in mid-August 1984.

Nasser testified that Lebus exhibited bad feelings towards him continuously since his reinstatement.Nasser testified that Lebus played favorites within the plant, allowing certain employees privileges not allowed to others, and assigning the less desirable jobs to disfavored employees such as himself.Lebus assigned Nasser to harder tasks than Lebus had assigned to him prior to his reinstatement.

On September 4, 1984, Nasser suffered a back injury while lifting boxes of materials and was off work for five weeks.On October 15, 1984, Nasser returned to work with a doctor's note stating that Nasser could only work on light duty tasks and that he should not lift more than twenty pounds.Nasser gave the note to the assistant plant manager, John Bodner, who gave the note to Lebus.Nasser was given a light duty job (e.g., watch a pump and a meter) during the first two hours of his first day back at work.Thereafter, co-employee Tom Lombardo, who also was on light duty, told Nasser that if he, Lombardo, had to do a harder job he would make sure that Nasser also had to do a harder job.Lombardo then talked to Bodner, who reassigned Nasser to a job that required a lot of fast twisting and lifting.After lunch, Nasser complained to the union representatives about his reassignment which he believed had resulted from Lebus's order.The union representative told Nasser that he had to do anything that Lebus told him to do or he would get fired.Therefore, from that point on Nasser continued to do this job although it was aggravating his back.

On November 20, 1984, Nasser gave a second doctor's note to Bodner and Lebus which again stated that Nasser should only be assigned to light duty work and that he should not lift more than twenty pounds.At no time from the date Nasser returned to work until the date of his second injury did he ever give notice to Lebus, Bodner or any other Parr supervisor that he was off light duty.However, Nasser was never again assigned a light duty job.Thus, in order to complete his work, Nasser testified that he began to sneak assistance from his cousin Nabil and Dennis Hopkins in lifting and dumping heavy materials.

On June 14, 1985, Bodner ordered Nasser to dump thirteen drums weighing approximately four hundred pounds each.Nasser told Bodner that he could not do this job.Bodner replied, "Listen, this is Lebus's idea.Do it with Lebus from now on.Don't get me in trouble."Further, Bodner told Nasser that he would not get any help because Lebus wanted him to do this job alone.However, Nasser tried to sneak help but his cousin Nabil was off that day.He asked Hopkins for help but Hopkins appeared nervous and told Nasser he could not help him because he had been ordered to stay away from Nasser that day.Nasser proceeded to dump the drums alone and began to feel pain.As Nasser left work that day he informed Bodner that he had hurt his back and that he was going to the hospital.

Nasser's injury required surgery.Dr. Seltzer, Nasser's attending physician, testified that Nasser's injury was the result of nonobservance of the light duty requested by his treating doctors.Further, Seltzer stated Nasser would never be able to return to the kind of work he was performing at Parr.Dr. Seltzer also testified that Nasser was constantly in severe pain and his family and social life had drastically changed since his second injury.

Tom Owen, the former plant manager at Parr's east side plant, ² testified that he had two conversations with Lebus regarding Nasser.During the conversations Lebus made racial and disparaging remarks about Nasser and said that he would "get" Nasser for the Egyptian trip.Owen took Lebus's comments to mean he would fire Nasser by hurting Nasser physically.Knowing that Lebus had been fired previously at Parr because of favoritism and his treatment of employees, Owen went to the west side plant to investigate the situation.Owen learned that Nasser had been given normal, heavy and dangerous assignments when he had been under doctor's orders for light duty.Further, Owen learned that there were other men who had been on light duty assignments or no assignments at all.Thereafter, on various occasions, Owen warned his supervisors (George Mitchell, manufacturing manager, Francis DeVille, president, and Paula Osborne, personnel director) that "Lebus was out to hurt Nasser."Owen testified that Nasser was injured within a week of a meeting Owen had with Mitchell and DeVille regarding the situation.George Mitchell testified that he had fired Lebus because he did not treat all employees equally but later rehired Lebus to give him a second chance.Mitchell felt Lebus improved for a while but then went back to his old habits because employees were being assigned to jobs they could not or should not do.

The evidence adduced by appellant Parr disclosed the following:

Lebus and Bodner were aware of Nasser's light duty and twenty-pound limitation.Essentially, both men denied all allegations set forth in Nasser's and Owen's testimony.However, Lebus's credibility and Bodner's credibility were shown to be questionable.Lebus admitted he had lied during his previous deposition testimony in this case.On three occasions, Bodner had given conflicting accounts as to how and when he learned of Nasser's injury.

Lombardo testified that Lebus treated all employees equally.Hopkins admitted that he had helped Nasser with his work, but denied knowledge that such help was contrary to Lebus's orders.Grobelny denied telling Nasser that he would put a stop to Nasser's requests for help and had a general lack of memory to all testimony.However, Grobelny admitted refusing to help Nasser when Grobelny was busy.Both Osborne and DeVille claimed that Owen never told them that Lebus was endangering Nasser.DeVille testified that in his capacity as president of Parr he had ratified Lebus's conduct at Parr.

On appeal, appellant Parr assigns eight errors.

I

Appellant Parr's first and second assigned errors will be discussed jointly.Appellant Parr argues that the court erred in failing to grant its motions for directed verdict and judgment notwithstanding the verdict because there was no evidence of (a) the existence of a dangerous condition or that (b) injury to Nasser was a substantial certainty.

"In order to establish 'intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (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 not just a high risk; 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."Van Fossen v. Babcock & Wilcox Co.(1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus;Sanek v. Duracote Corp.(1989), 43 Ohio St.3d 169, 171, 539 N.E.2d 1114, 1116.

"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.Where the risk is great and 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 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."Van Fossen, supra, at paragraph six of the syllabus;Sanek, supra, at 171, 539 N.E.2d at 1116.

The focus of an intentional tort action under the standards set forth in Van Fossen is on the knowledge of the employer regarding the risk of injury.The plaintiff has the...