Ohio Appellate Reports
Unpublished
ROYCE FORD v. COMPLETE GEN. CONSTR. CO., Unpublished
Decision (12-28-2006) 2006-Ohio-6954 Royce Ford et al.,
Plaintiffs-Appellants, v. Complete General Construction
Company et al., Defendants-Appellees. No. 06AP-394 (C.P.C.
No. 03CVC01-572). Court of Appeals of Ohio, Tenth
District. Rendered on December 28, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Franklin County Court of
Common Pleas.
Kitrick and Lewis Co., L.P.A., Mark Lewis, Mark Kitrick,
and Sean Harris, for appellants.
Vorys, Sater, Seymour and Pease LLP, Robert E. Tait, and
Rodney A. Holaday, for appellee Complete General
Construction Company.
OPINION
FRENCH, J.
{¶ 1} Plaintiffs-appellants, Royce Ford, Christine
Ford, Jacob W. Eyerman, and Jonathan Ford (collectively
“appellants”), appeal from the judgment of the Franklin
County Court of Common Pleas granting summary judgment in
favor of defendant-appellee, Complete General Construction
Company (“CGC”), on appellants’ claims for employer
intentional tort and loss of consortium. For the following
reasons, we affirm.
{¶ 2} On September 20, 2002, Royce Ford (“Ford”) was
employed by CGC as a pipe layer. On that morning, Ford was
part of a CGC crew laying sewer pipe on Martin Road in
Columbus, Ohio, and was checking the grade in a pipe
trench. Behind Ford, outside the trench, CGC employee Cecil
Storts (“Storts”) was operating a Komatsu Model 228
excavator (the “excavator”). Storts was preparing to dump
gravel into the trench to stabilize recently laid pipe,
using a bucket attached to the excavator with a Slide-Loc
coupler (the “coupler”) manufactured by JRB Company, Inc.
(“JRB”). CGC leased both the excavator and the coupler from
Columbus Equipment Company (“Columbus Equipment”) on May 15,
2002. Ford suffered severe injuries when the bucket
unexpectedly detached from the coupler, rolled, and pinned
Ford from the chest up against the recently laid concrete
pipe.
{¶ 3} Appellants filed a complaint against CGC in
the Franklin County Court of Common Pleas on January 15,
2003, alleging claims for employer intentional tort and
loss of consortium. On October 1, 2003, appellants filed an
amended complaint, adding negligence and product liability
claims against Columbus Equipment. Columbus Equipment filed
an answer to appellants’ amended complaint on November 20,
2003, a third-party complaint for indemnification and/or
contribution against JRB on May 7, 2004, and a cross-claim
against CGC on May 27, 2005.
{¶ 4} On July 29, 2005, CGC, Columbus Equipment, and
JRB filed motions for summary judgment. On February 23,
2006, the trial court granted CGC’s motion for summary
judgment. Thereafter, on March 14, 2006, appellants
dismissed their claims against Columbus Equipment with
prejudice, pursuant to Civ.R. 41(A)(1)(b). On April 6, 2006,
Columbus Equipment voluntarily dismissed its cross-claim
against CGC and its third-party complaint against JRB
without prejudice.
{¶ 5} In accordance with its February 23, 2006
decision, the trial court entered final judgment in favor
of CGC on April 19, 2006. Appellants filed a timely notice
of appeal and present a single assignment of error for our
consideration:
The trial court erred in granting summary judgment to
Appellee Complete General Construction Company (“Complete
General”) because genuine issues of material fact exist
concerning whether Complete General knew that its
dangerous process, procedure or instrumentality was
substantially certain to injure Appellant Royce Ford
(“Ford”). Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115.
The issue presented under appellants’ assignment of error is
whether the trial court erred in granting summary judgment
in favor of CGC.
{¶ 6} Appellate review of summary judgments is de
novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio
App.3d 579, 588, citing Brown v. Scioto Cty. Bd. of Commrs.
(1993), 87 Ohio App.3d 704, 711. When an appellate court
reviews a trial court’s disposition of a summary judgment
motion, it applies the same standard as the trial court and
conducts an independent review, without deference to the
trial court’s determination. Maust v. Bank One Columbus,
N.A. (1992), 83 Ohio App.3d 103, 107; Brown at 711. We must
affirm the trial court’s judgment if any grounds the movant
raised in the trial court support it. Coventry Twp. v.
Ecker (1995), 101 Ohio App.3d 38, 41-42.
{¶ 7} Pursuant to Civ.R. 56(C), summary judgment
“shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact,
if any, timely filed in the action, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”
Accordingly, summary judgment is appropriate only where:
(1) no genuine issue of material fact remains to be
litigated; (2) the moving party is entitled to judgment as
a matter of law; and (3) viewing the evidence most strongly
in favor of the non-moving party, reasonable minds can come
to but one conclusion, that conclusion being adverse to the
non-moving party. Harless v. Willis Day Warehousing Co.
(1978), 54 Ohio St.2d 64, 66.
{¶ 8} “[T]he moving party bears the initial
responsibility of informing the trial court of the basis
for the motion, and identifying those portions of the
record before the trial court which demonstrate the absence
of a genuine issue of fact on a material element of the
nonmoving party’s claim.” Dresher v. Burt (1996), 75 Ohio
St.3d 280, 292. Once the moving party meets its initial
burden, the non-movant must set forth specific facts
demonstrating a genuine issue for trial. Id. at 293.
Because summary judgment is a procedural device to
terminate litigation, courts should award it cautiously
after resolving all doubts in favor of the non-moving
party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356,
358-359.
{¶ 9} Bearing in mind these standards, we turn to
appellants’ claim for employer intentional tort. The Ohio
Workers’ Compensation Act generally provides participating
employers immunity from claims seeking damages for death,
injury or occupational disease of its employees. Vermett v.
Fred Christen & Sons Co. (2000), 138 Ohio App.3d 586,
598-599, citing Section 35, Article II, Ohio Constitution.
However, such immunity “does not apply when an employer
intentional tort has occurred within the context of the
employer/employee relationship.” Id. at 599, citing
Blankenship v. Cincinnati Milacron Chemicals (1982), 69
Ohio St.2d 608, syllabus. When an employer moves for summary
judgment on an employer intentional tort claim, the
plaintiff-employee must set forth specific facts showing a
genuine issue as to whether the employer committed an
intentional tort against the employee. Van Fossen v.
Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at paragraph
seven of the syllabus.
{¶ 10} The Ohio Supreme Court of Ohio set forth the
law applicable to employer intentional tort claims in
paragraph one of the syllabus of Fyffe v. Jeno’s, Inc.
(1991), 59 Ohio St.3d 115:
* * * [I]n 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
(3) that the employer, under such circumstances, and with
such knowledge, did act to require the employee to
continue to perform the dangerous task. * * *
In the second paragraph of the Fyffe syllabus, the court
continued:
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. As 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. * * *
(Emphasis added.) Because a plaintiff must satisfy all three
prongs of the Fyffe test, failure of proof with respect to
any one prong renders immaterial disputes of fact with
respect to the other prongs. Keller v. Northwest Conduit
Corp. (Sept. 26, 2000), Franklin App. No. 99AP-1403.
{¶ 11} The Ohio Supreme Court has cautioned against
construing the cause of action for employer intentional
tort too broadly:
* * * “[T]he dividing line between negligent or reckless
conduct on the one hand and intentional wrong on the other
must be drawn with caution, so that the statutory
framework of the [Workers’ Compensation] Act is not
circumvented simply because a known risk later blossoms
into reality. We must demand a virtual certainty.[“] * * *
Van Fossen at 116, quoting Millison v. E.I. du Pont de
Nemours & Co. (1985), 101 N.J. 161, 178. Ohio courts have
recognized that establishing that an employer’s conduct was
more than negligence or recklessness, and thus satisfies
the requirement for an employer intentional tort, “`is a
difficult standard to meet.'” Goodin v. Columbia Gas of
Ohio, Inc. (2000), 141 Ohio App.3d 207, 220, quoting McGee
v. Goodyear Atomic Corp. (1995), 103 Ohio App.3d 236, 246.
{¶ 12} CGC moved the trial court for summary
judgment based on the first and second prongs of the Fyffe
test. With respect to the first prong, the trial court
agreed with CGC’s assertion that the coupler did not
constitute a dangerous instrumentality or condition. The
trial court also concluded that evidence regarding Storts’
procedure for attaching the bucket to the coupler and for
testing the attachment was “insufficient to support the
significantly higher threshold required to prove
intentional tort.” With respect to the second prong, the
trial court stated: “Here, despite the voluminous record
presented, the court is unable to find that CGC knew that
Ford’s injuries were substantially certain to occur using
the equipment at issue and utilizing the policies in
place.” Having concluded that the evidence failed to
establish a genuine issue of material fact as to either the
first or second prongs of the Fyffe test, the trial court
granted CGC’s motion for summary judgment.
{¶ 13} On appeal, appellants’ contentions regarding
a dangerous condition within CGC’s business operation
center on the absence of a supplemental safety lock on the
coupler and on the procedures used to attach the bucket to
the coupler and to test the attachment. When asked to
identify the dangerous condition in CGC’s business
operation, appellants’ expert, John Messineo, P.E., stated:
“That was the lack of the supplemental safety lock on the
coupler. It was also not performing the proper pressure
test. That was also not performing the proper curl-uncurl
of the bucket after performing the pressure test. So I
could say the improper performance of the check was also a
dangerous condition.” (Messineo Depo. at 105.)
{¶ 14} Whether or not the evidence demonstrates a
genuine issue of material fact regarding CGC’s knowledge of
a dangerous process, procedure, instrumentality or
condition within its business operation, we find no genuine
issue of material fact regarding CGC’s knowledge, or lack
thereof, that harm to Ford was a substantial certainty.
Because failure of proof with respect to any one prong of
the Fyffe test warrants judgment in favor of the employer
and renders immaterial disputes of fact with respect to the
other Fyffe prongs, we turn to the second prong of the
Fyffe test.
{¶ 15} The second prong of the Fyffe test requires a
plaintiff to establish knowledge by the employer that
injury to the employee was substantially certain to occur
as a result of a dangerous process, procedure,
instrumentality or condition within the employer’s business
operation. The existence of the employer’s knowledge may be
inferred from the surrounding circumstances and the actor’s
conduct. Howard v. Columbus Prod. Co. (1992), 82 Ohio
App.3d 129, 135. Something more than a dangerous condition
is required to establish the existence of a genuine issue
of material fact regarding whether an employer knew that
injury to its employee was substantially certain to occur.
Despas v. Cleveland Cement Co. (June 21, 2001), Franklin
App. No. 00AP-964, citing Kirk v. Colburn (Dec. 31, 1997),
Williams App. No. WM-97-002.
{¶ 16} A difficult issue in any employer intentional
tort case is the degree of risk an employer may take before
its conduct is legally considered an intentional act to
injure. Buccione v. Cincinnati, Inc. (Dec. 13, 1991), Huron
App. No. H-90-27. To satisfy the second prong of the Fyffe
test, this court has stated:
* * * [P]laintiff had to produce evidence that [the
employer] knew of the substantial certainty of injury to
plaintiff as a result of the dangerous condition. “[E]ven
if an injury is foreseeable, and even if it is probable
that the injury would occur if one were exposed to the
danger enough times, `there is a difference between
probability and substantial certainty.'” * * * “[T]he mere
knowledge and appreciation of a risk — something
short of substantial certainty-is not intent.” * * *
Unless the employer actually intends to produce the
harmful result or knows that injury to its employee is
certain or substantially certain to result from the
dangerous instrumentality or condition, the employer
cannot be held liable. * * * Accordingly, an
intentional-tort action against an employer is not shown
simply because a known risk later blossoms into reality. *
* * Rather, “the level of risk-exposure [must be] so
egregious as to constitute an intentional wrong.” * * *
Berge v. Columbus Community Cable Access (1999), 136 Ohio
App.3d 281, 308-309. We have also explained the second
prong of the Fyffe test as requiring the employee to prove
that the employer knew that, because of the exact danger
posed, the employee would be harmed or was substantially
certain to be harmed in some manner similar to the injury
the employee sustained. Yarnell v. Klema Bldg., Inc. (Dec.
24, 1998), Franklin App. No. 98AP-178.
{¶ 17} Appellants’ first argument concerns the lack
of a supplemental safety lock on the coupler and CGC’s use
of the coupler without the supplemental safety lock. The
coupler’s locking mechanism involves a locking plate that,
using hydraulic pressure, slides behind the pin of the
bucket, wedges the pin tight, and holds it in place. The
locking mechanism is operated by a toggle switch inside the
excavator cab. As originally manufactured, the sole locking
mechanism on JRB Slide-Loc couplers consisted of this
locking plate. However, in 1998, JRB introduced a second
generation of Slide-Loc couplers, which incorporated a
supplemental safety lock. The supplemental safety lock
consists of a pin, manually inserted through a hole in the
locking plate after the primary locking mechanism is
engaged, which prevents the locking plate from retracting.
The primary locking mechanism on second generation JRB
couplers is identical to the locking mechanism on first
generation JRB couplers.
{¶ 18} Although it is possible to retrofit first
generation JRB couplers with supplemental safety locks,
first generation JRB couplers with no supplemental safety
locks remained in use at the time of Ford’s accident. After
the introduction of its second generation couplers, JRB did
not issue a recall of first generation couplers and did not
instruct owners of first generation couplers to install
supplemental safety locks. Further, neither the
Occupational Safety & Health Administration (“OSHA”) nor
the National Institute for Occupational Safety and Health
(“NIOSH”) has suggested that use of first generation
couplers be discontinued or has required that couplers
contain supplemental safety locks. In fact, Messineo was
unaware of any regulation prohibiting the use of couplers
without supplemental safety locks in 2002, and opined that,
in 2002, it was reasonable to use couplers that did not
have supplemental safety locks.
{¶ 19} At some time prior to Ford’s accident, the
coupler at issue here had been equipped with a supplemental
safety lock, although it is unknown whether the coupler was
a second generation coupler, originally manufactured with a
supplemental safety lock, or was a retrofitted first
generation coupler. Regardless, at the time of Ford’s
accident, the coupler contained no supplemental safety
lock. Appellants and CGC vigorously disagree as to whether
CGC knew about the removal of the supplemental safety lock
and, indeed, as to whether CGC was responsible for removing
the supplemental safety lock. Although all CGC witnesses
denied knowledge that a supplemental safety lock had been
removed from the coupler, the record contains testimony
that the supplemental safety lock was present when Columbus
Equipment leased the coupler to CGC in May 2002.
Additionally, the JRB Operator’s Handbook and decals for
the coupler refer to a supplemental safety lock, and Storts
and CGC foreman, William Redoutey, saw a hole in the
location where a supplemental safety lock pin would exist
upon their inspection of the coupler two weeks before the
accident. Given our other findings in this matter, we
conclude that the issue of when and by whom the supplemental
safety lock was removed is irrelevant.
{¶ 20} It is undisputed that first generation JRB
couplers with no supplemental safety locks remained in use
at the time of Ford’s accident, and appellants’ expert
witness conceded that use of such couplers was reasonable.
Columbus Equipment’s service mechanic, Gary Collins,
testified that the supplemental safety lock was not
essential to the safety of the coupler and that he had
never known a bucket to detach if the primary safety lock
was engaged. Similarly, Ray Fatemi, a former JRB project
engineer, explained that “a supplemental lock is only
useful when a primary lock has failed, and then in that case
it would prevent unintentional unlocking of the coupling
mechanism.” (Fatemi Depo. at 20.) According to Fatemi,
failure to use a supplemental safety lock on a second
generation coupler would not compromise the safety of the
whole system unless the primary locking mechanism failed.
Todd M. Perrine, an expert witness testifying on behalf of
CGC, testified that a JRB coupler without a supplemental
safety lock is “a safe coupler” and that the specific
coupler at issue here was in “[g]ood, working, safe
condition” at the time of Ford’s accident. (Perrine Depo. at
46, 140.) An inoperable supplemental safety lock on a
second generation JRB coupler would not dissuade Perrine
from recommending continued use of the coupler.
{¶ 21} Even if the coupler at issue here was a
second generation coupler, with its supplemental safety
lock removed, the primary locking mechanism of that coupler
is identical to the primary locking mechanisms of first
generation JRB couplers, still reasonably used in the field
without supplemental safety locks at the time of Ford’s
accident. Given the lack of a recall on JRB first
generation couplers, the lack of any requirement that first
generation couplers be retrofitted with supplemental safety
locks, and the lack of any regulation prohibiting the use
of couplers without supplemental safety locks, we conclude
that CGC’s use of the coupler without a supplemental safety
lock does not create a genuine issue of material fact as to
CGC’s knowledge that injury to Ford was a substantial
certainty.
{¶ 22} We next turn to appellants’ contentions
regarding the procedures used to: (1) attach the bucket;
and (2) test the attachment. As to the first issue,
appellants argue that Storts failed to properly attach the
bucket in accordance with JRB’s instructions, thus creating
a dangerous condition in CGC’s business operation. As to
the second issue, appellants argue that Storts failed to
properly check the attachment, thus creating a dangerous
condition in CGC’s business operation. Messineo opined that
CGC was aware that the process Storts used to attach the
bucket, including Storts’ test of the attachment, created a
substantial certainty of harm to Ford. Upon review of the
evidence in the record, we find Messineo’s legal conclusion
lacks an evidentiary basis for support, and we are thus
compelled to reject it. See Duncan v. Mosser Constr., Inc.,
Lucas App. No. L-04-1364, 2005-Ohio-4020.
{¶ 23} Appellants argue that CGC’s use of the
coupler in contravention of JRB’s instructions demonstrates
CGC’s knowledge that injury to Ford was substantially
certain to occur. The JRB Operator’s Handbook for the
coupler and JRB decals attached to the interior of the
excavator cab explain JRB’s instructions for locking and
unlocking the coupler. In the coupler product manual, JRB
warns that not following the instructions for locking and
unlocking the coupler, as set forth in the Operator’s
Handbook, presents a “high probability of personal injury.”
(David Boggs Depo., Exh. 1, at 3, 10.) Part of the JRB
instructions require the operator to shut off the
excavator, exit the cab, and manually engage the
supplemental safety lock. After this step, the Operator’s
Handbook states:
! DANGER
Make sure coupler is attached correctly to attachment.
The supplemental lock can be engaged with the attachment
in an incorrect lock position. A visual check is required
each time lock operation is performed. * * *
Do not operate attachment when supplemental lock is the
primary locking device. Doing so could cause failure of
the coupler.
{¶ 24} Safety engineer, Robert Burch, testified that
safe practice requires following the manufacturer’s
instructions for use of the coupler. Expert witnesses Gary
Derian and Messineo testified that Storts deviated from
JRB’s recommended attachment procedure by not utilizing a
supplemental lock and not visually inspecting the locking
plate. Derian also opined that Storts did not rotate the
bucket to a full curl position before moving the toggle
switch from unlock to lock. Of particular importance to
Derian was Storts’ failure to make a visual inspection of
the locking plate. Derian stated: “If you can visually
inspect that plate and see that it is completely locked
where it belongs, that is a very strong indicator that it
is properly locked.” (Derian Depo. at 20.) Derian opined
that Storts’ compliance with the JRB attachment procedures
would have prevented Ford’s accident, with or without the
supplemental safety lock.
{¶ 25} Expert witnesses Perrine, Derian, and
Messineo all testified as to the importance of visually
inspecting the attachment as part of a mandatory safe
attachment procedure. Messineo opined that a visual
inspection immediately prior to Ford’s accident would have
revealed that the coupler’s primary locking mechanism was
not properly engaged. Fatemi also explained “[w]e always
ask operator to do a visual check and inspection,
regardless of what coupler it is” and whether or not the
coupler has a supplemental safety lock. (Fatemi Depo. at
51.)
{¶ 26} Although Storts agreed that it is good safety
practice for an operator to follow the procedures outlined
in the operator’s manual for the equipment he is operating,
Storts’ attachment procedure undisputedly deviated from
JRB’s proscribed procedure. Although Storts provided little
testimony regarding the procedure he utilized in attempting
to actually attach the bucket, Storts obviously did not
engage a supplemental safety lock and admittedly did not
visually verify the attachment. In fact, Storts stated he
would not normally look to see whether the lock was in
place after he moved the toggle switch inside the cab to
the locked position. CGC’s equipment manager, Richard
Coogan, and CGC’s Safety Director, Al Tambini, testified
that they did not expect operators to always follow the
manufacturer’s instructions for coupler use.
{¶ 27} Although CGC used the coupler without a
supplemental safety lock and did not require its operators
to unequivocally follow the manufacturer’s instructions
when locking and unlocking the coupler, CGC required its
operators to conduct a safety check procedure, separate
from the attachment procedure itself, to test the coupling
after each attachment to ensure proper and complete
engagement of the primary locking mechanism. CGC took its
safety check procedure from installation instructions for a
JB Quick Coupler manufactured by Hendrix, but CGC required
its operators to perform the procedure after each
attachment, regardless of the brand of coupler they were
using. Coogan explained the two-step safety check
procedure:
Basically what we call the safety check procedures, where
we would — What our operators do was to jack the
machine off the ground once the bucket has been locked up,
put the front of the machine off the ground and try to
roll the bucket out of the — or roll the bucket in
the dump position. And if the bucket is unlocked at that
time, it will roll right out of the bucket. If it is
hooked up, it ought to raise the machine and it tells you
you got a good lock.
* * *
* * * [Step one] actually got the tracks up in the air
and you had the whole weight of that machine on it. And
then the second step was to curl the bucket or unload it
in the dump position. Which while it was on the ground if
that mechanism was unlocked it would roll right out of
the bucket because you would have had your weight of the
machine on it.
(Coogan Depo. at 61-63.) Witnesses alternatively refer to
this procedure as a “ground test” or “pressure test.”
{¶ 28} Although not included in the JRB instructions
for locking the coupler, JRB engineer Fatemi testified that
it is “also a good idea to do a ground test” after
attaching the coupler and visually inspecting the
attachment. (Fatemi Depo. at 51.) JRB mechanic Boggs
likewise acknowledged the pressure test as a means to
ensure that the coupler is locked. Although Boggs
criticized CGC’s application of the Hendrix test to JRB
couplers, he acknowledged that, upon performance of that
test with any brand of coupler, a bucket would probably
fall off if it was not properly locked. Fatemi likewise
testified that, although he believed the Hendrix test was
poorly written and confusing, if an experienced operator
was not confused by the test and paid attention,
performance of the test would reveal any problem with the
attachment. Appellants’ own expert, Messineo, did not
contest the effectiveness of the CGC-required test for
checking engagement of the coupler’s primary locking
mechanism and, indeed, agreed that, if Storts had performed
the test required by CGC, he would have been aware of
whether the primary lock was properly engaged.
{¶ 29} Because it required operators to test the
lock after each coupler attachment, CGC could reasonably
anticipate that any failure in the attachment procedure
itself, including deviations from the manufacturer’s
instructions, would be revealed and corrected upon
performance of the safety test, without injury. While there
is some dispute as to whether Storts properly performed the
required testing procedure, we find no evidence in the
record upon which a trier of fact could conclude that CGC
knew that Storts was not properly performing the required
test. Rather, both Redoutey and CGC operator, Joe Bing,
testified that Storts was meticulous about performing the
safety test after each attachment. Accordingly, we conclude
that reasonable minds could not conclude that Ford’s injury
was substantially certain to result from CGC operators not
following the manufacturer’s instructions for locking and
unlocking the coupler or not following CGC’s required
testing procedure. While the evidence arguably establishes
that CGC may have acted negligently in failing to require
its operators to comply with JRB’s operating instructions,
the evidence does not rise to the level of substantial
certainty required to satisfy the standard for maintaining
an employer intentional tort claim.
{¶ 30} Even if it were probable that injury would
occur if an employee was exposed to a danger enough times,
we have previously held that “`there is a difference
between probability and substantial certainty.'” Heard v.
United Parcel Service (July 20, 1999), Franklin App. No.
98AP-1267, quoting Ruby v. Ohio Dept. of Natural Resources
(Dec. 3, 1992), Franklin App. No. 92AP-947. In Goodwin v.
Karlshamns USA, Inc. (1993), 85 Ohio App.3d 240, this court
reviewed a trial court’s entry of summary judgment in favor
of the employer on an employer intentional tort claim and
found that the plaintiff-employee failed to demonstrate a
genuine issue of fact as to the second prong of the Fyffe
test, despite the employer’s knowledge of a significant
potential for injury. In Goodwin, the employer knew of a
faulty vent on its plant roof, which ultimately caused a
hydrogen gas explosion in an interior tank, seriously
injuring the plaintiff. In addition to its knowledge of the
faulty vent, the employer knew of the significant potential
for a hydrogen gas explosion. In affirming summary judgment
in favor of the employer, we noted the harshness of the
Fyffe test and held, “a showing of a significant risk of an
explosion does not constitute a showing that an explosion
was a substantial certainty.” Id. at 246. Likewise here,
the evidence does not constitute a showing that injury to
Ford was a substantial certainty.
{¶ 31} In further support of their contention that
CGC was aware that injury to Ford was substantially
certain, appellants point to evidence of CGC’s failure to
train Storts regarding safe operating procedures for the
coupler, OSHA’s citation of CGC for failing to follow JRB’s
operating instructions, and CGC’s knowledge of other bucket
detachment accidents. We find that such evidence does not
demonstrate a genuine issue of material fact as to whether
CGC had actual knowledge that Ford was substantially
certain to suffer injury.
{¶ 32} In response to appellants’ argument that CGC
failed to train Storts regarding safe coupler operation,
CGC argues that Storts was a journeyman operator[fn1] with
a long history of operating excavators and couplers and
that there is no evidence suggesting that Storts was
untrained in attachment procedures. Coogan testified that
CGC hires only journeymen operators and requires its
operators to familiarize themselves with the equipment they
are running. Tambini assumed, based on Storts’ experience,
that Storts would be familiar with the JRB Operator’s
Manual for the coupler. Storts was an experienced excavator
and coupler operator with over 30 years experience operating
heavy machinery in the construction industry, including
prior experience operating both Komatsu excavators and JRB
couplers. For six to eight years prior to Storts’ work for
CGC, his primary responsibility had been operating
excavators, half of which time involved operating
excavators with couplers. Moreover, Storts successfully
operated the excavator and coupler at issue here for many
hours over the course of two to three weeks before the
accident. Storts had never before experienced a bucket
unexpectedly detach from a coupler. Even if we were to
assume that CGC failed to train or inadequately trained
Storts, that failure would constitute negligence or
recklessness, but it would not rise to the level of
substantial certainty of harm. See Teal v. Colonial Stair &
Woodwork Co., Fayette App. No. CA2004-03-009,
2004-Ohio-6246, at ¶ 22.
{¶ 33} Appellants next argue that CGC personnel’s
awareness of prior bucket detachment accidents resulting in
injury or death demonstrates CGC’s knowledge that injury to
Ford was substantially certain. It is undisputed that CGC
personnel, including Redoutey, Tambini, and Coogan were
aware of prior accidents involving unexpected bucket
detachments at other construction companies, including at
least two bucket detachments at Performance Site
Management, while Redoutey was employed there. Appellants
also cite two 2004 publications by OSHA and NIOSH. The
NIOSH publication addresses deaths associated with
excavators between 1992 and 2000, whereas the OSHA
publication reports 15 bucket detachments between 1998 and
2004, eight of which resulted in death.
{¶ 34} This court has noted that “prior accidents
resulting from the hazard are probative of whether an
employer knows that an injury is substantially certain to
occur[.]” Berge at 309, citing Foust v. Magnum Restaurants,
Inc. (1994), 97 Ohio App.3d 451. While evidence of prior
similar incidents is not dispositive of whether the employer
knew that injury to an employee was substantially certain,
it is one fact to consider in assessing the employer’s
knowledge. Goodin at 220. We have also noted that
“`[establishing the employer’s knowledge of substantial
certainty of harm is difficult where there are not prior
accidents of a similar character[.]'” Id. at 221, quoting
Taulbee v. Adience, Inc., BMI Div. (1997), 120 Ohio App.3d
11, 20.
{¶ 35} In Heard, this court affirmed summary
judgment in favor of an employer despite evidence of
multiple similar accidents within the employer’s own
business operation. There, the plaintiff was struck on her
head and right shoulder by a package that fell from an
overhead conveyer belt and slide system at a UPS facility.
UPS knew that its employees had previously been injured in
this manner, as evidenced by eight injury reports from the
previous two years. Expert testimony indicated that the
overhead conveyer belt and slide system was a dangerous
instrumentality. However, this court held that, “while
evidence that packages have fallen and injured employees in
the past indicates that such injuries will possibly or even
likely occur in the future, it does not constitute a
showing that Heard’s injury was substantially certain to
occur.” Id.
{¶ 36} Here, the undisputed evidence establishes
that no unexpected bucket detachment had ever previously
occurred within CGC’s business operation. Moreover, the
record reveals no evidence of any prior unexplained bucket
detachment involving a JRB coupler, either with or without
a supplemental safety lock. In fact, Redoutey testified that
no cause was identified for the detachments at Performance
Site Management.
{¶ 37} CGC used the coupler at issue here for more
than 500 hours over the four months prior to Ford’s
accident with no apparent problems. Storts, himself, used
the coupler 40 hours a week for two to three weeks before
the accident and estimated that he changed attachments 15 to
20 times a day. Prior to Storts’ use of the coupler, CGC
operator, Richard Crooks, used the coupler from May 20,
2002, through August 27, 2002, with no problems. Neither
the existence of other bucket detachment accidents
involving non-JRB couplers outside of CGC’s business
operation nor CGC’s knowledge of such accidents creates a
genuine issue of material fact as to whether CGC knew that
injury to Ford was substantially certain. Furthermore,
appellants’ reliance on the OSHA and NIOSH publications is
misplaced, given that such studies were not published until
2004, two years after Ford’s accident. Accordingly, such
publications have no bearing on CGC’s knowledge of
substantially certain harm prior to Ford’s accident.
{¶ 38} We further find unpersuasive appellants’
argument that a disputed OSHA citation establishes CGC’s
knowledge that injury to Ford was a substantial certainty.
The record contains an OSHA document entitled Citation and
Notification of Penalty addressed to CGC and arising out of
this accident. The Citation and Notification of Penalty
sets forth citations for failing to follow the
manufacturer’s safe operating procedures for the coupler
and for not ensuring that an employee working at a depth of
six feet was protected from cave-ins either by properly
sloping the trench or using a trench box. However, CGC
disputes that OSHA ultimately cited it for failing to follow
the manufacturer’s instructions regarding coupler use.
Tambini testified that “OSHA dropped the citation. They
vacated the citation” for failing to follow the
manufacturer’s safe operating procedures. (Tambini Depo. I
at 94.) Whether or not OSHA, in fact, cited CGC for its
failure to follow the JRB instructions, we conclude that
evidence of a citation, arising out of the accident at
issue here, does not create a genuine issue of material
fact as to CGC’s knowledge that injury to Ford was
substantially certain to result.
{¶ 39} The Fourth District Court of Appeals has
rejected an argument, similar to that raised by appellants,
that an OSHA citation constitutes evidence that an employer
knew that injury was substantially certain. In Goodin, the
record contained evidence of a withdrawn OSHA citation for
failing to provide appropriate monitoring devices for
employees exposed to a gaseous environment. The appellant
argued that the OSHA citation constituted evidence that the
employer knew to a substantial certainty that harm would
result to the decedent if he changed a leaking curb valve
without an oxygen monitor while live natural gas was
flowing through the line. While the employer’s safety
personnel did not approve of such a process, they knew that
employees commonly engaged in the process and neither
prohibited nor advised against it. However, the employer
required at least one member of a crew to have an oxygen
monitor on his person prior to entering an excavation. The
Fourth Appellate District concluded that, although the OSHA
citation may help establish that the employer was
negligent, or perhaps even reckless, the citation was
insufficient to establish that injury to the decedent was a
substantial certainty. See, also, Duncan at ¶ 25
(“any claimed OSHA violations do not factor into our
determination of whether Mosser knew that Duncan’s injuries
were substantially certain to occur”). Likewise, here, we
conclude that the disputed OSHA citation does not create a
genuine issue of material fact as to whether CGC knew that
injury to Ford was a substantial certainty.
{¶ 40} In conclusion, even if we were to find a
dangerous condition in CGC’s business operation, the
evidence does not present a genuine issue of material fact
as to whether CGC knew that harm to Ford was substantially
certain to result. As the Ohio Supreme Court stated in Van
Fossen at 117:
There are many acts within the business or manufacturing
process which involve the existence of dangers, where
management fails to take corrective action, institute
safety measures, or properly warn the employees of the
risks involved. Such conduct may be characterized as
gross negligence or wantonness on the part of the
employer. However, in view of the overall purposes of our
Workers’ Compensation Act, such conduct should not be
classified as an “intentional tort” * * *.
Although the risk of injury from an unexpectedly detached
bucket may have been significant, and although CGC was
aware of such risk based on JRB’s warning and CGC’s
knowledge of injuries and deaths resulting from prior
bucket detachments, CGC’s knowledge and appreciation of the
risk does not create a genuine issue of material fact that
CGC knew to a substantial certainty that Ford would be
injured. See Cox v. Barsplice Prod., Inc. (June 15, 2001),
Greene App. No. 2001-CA-1. While the evidence arguably
establishes negligence by CGC, the probability of Ford
being injured does not reach the level of substantial
certainty, as required to survive summary judgment on an
employer intentional tort claim. Upon review, we thus
conclude that the trial court did not err in determining
that appellants failed to demonstrate a genuine issue of
material fact as to the second prong of the Fyffe test.
Consequently, the trial court did not err in granting
summary judgment in favor of CGC.
{¶ 41} Because we find that the trial court did not
err in granting summary judgment in favor of CGC on
appellants’ claims, we overrule appellants’ sole assignment
of error and affirm the judgment of the Franklin County
Court of Common Pleas.
Judgment affirmed.
SADLER and TRAVIS, JJ., concur.
[fn1] Journeyman is the highest level of operator within the
Operating Engineers Union.