Martin v. Morgan Cty. Agricultural Soc. ( 2013 )

[Cite as Martin v. Morgan Cty. Agricultural Soc., 2013-Ohio-3106.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EDWARD and AMY MARTIN JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiffs-Appellants Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 AP 0009
MORGAN COUNTY AGRICULTURAL
SOCIETY
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Case No. 11 CV 0130
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: July 12, 2013
APPEARANCES:
For Plaintiffs-Appellants For Defendant-Appellee
MARK E. DEFOSSEZ KATHERINE A. CLEMONS
CURTIS M. FIFNER MARKESBERY & RICHARDSON
THE DONAHEY LAW FIRM Post Office Box 6491
495 South High Street, Suite 300 Cincinnati, Ohio 44206
Columbus, Ohio 43215
Morgan County, Case No. 12 AP 0009 2
Wise, J.
{¶1} Appellants Edward and Amy Martin appeal the decision of the Court of
Common Pleas, Morgan County, which granted summary judgment in favor of Appellee
Morgan County Agricultural Society in an action alleging employer intentional tort,
negligence, and other claims. The relevant facts leading to this appeal are as follows.
{¶2} In February 2009, Appellant Edward began working at appellee’s golf
course, as part of the county’s public works relief program. Among his job duties was
cutting grass with a Toro Reelmaster 216 riding lawn mower.
{¶3} On July 24, 2009, Edward was allegedly injured when he reached with his
hand to clean off the Toro’s rollers while the blades on the mower's reels were still
spinning. According to Edward’s deposition testimony, he had hit the switch to shut the
blades off, but he subsequently theorized that the switch may have only turned off
halfway and then popped back into an “on” position. See Edward Martin Depo. at 72-73.
{¶4} On July 21, 2011, appellants filed a complaint in the Morgan County Court
of Common Pleas alleging, inter alia, employer intentional tort and negligence.
Appellants named as defendants the Morgan County PWRE (a relief program under the
Morgan County DJFS), the Morgan County Fairgrounds Golf Course, the Toro
Company, one John Doe Corporation, and five John Does.
{¶5} Appellants subsequently substituted, as defendants, Morgan County for
Morgan County PWRE, and Appellee Morgan County Agricultural Society for the
Morgan County Fairgrounds Golf Course. However, Morgan County was dismissed in
June 2011, and the Toro Company was dismissed in November 2011. Furthermore, it
Morgan County, Case No. 12 AP 0009 3
does not appear that service was ever perfected on the John Doe corporation or the
individual John Does.
{¶6} On July 30, 2012, Appellee Morgan County Agricultural Society, the sole
remaining party-defendant, filed a motion for summary judgment.
{¶7} On August 22, 2012, the trial court rendered a judgment entry granting
summary judgment in favor of appellee.
{¶8} On September 4, 2012, appellants filed a notice of appeal. They herein
raise the following three Assignments of Error:
{¶9} “I. THE TRIAL COURT ERRED BY PERMITTING APPELLEE TO
ASSERT AN AFFIRMATIVE DEFENSE IT HAD PREVIOUSLY WAIVED.
{¶10} “II. BECAUSE THE DEFENSE OF EMPLOYER IMMUNITY PURSUANT
TO R.C. § 4123.74 AND R.C. § 4127.10 WAS WAIVED, THE TRIAL COURT ERRED
BY APPLYING AN INTENT STANDARD, AS OPPOSED TO A NEGLIGENCE
STANDARD.
{¶11} “III. IF APPELLANT MARTIN IS CONSIDERED TO BE APPELLEE'S
‘EMPLOYEE,’ THE TRIAL COURT ERRED BY DETERMINING THAT HE DID NOT
SATISFY THE REBUTTABLE PRESUMPTION OF INTENT TO INJURE PURSUANT
TO R.C. § 2745.01(C).”
I.
{¶12} In their First Assignment of Error, appellants contend the trial court erred
in implicitly permitting appellant to assert certain statutory employer immunity defenses.
We agree.
Morgan County, Case No. 12 AP 0009 4
{¶13} R.C. 4127.10 addresses the liability of employers participating in public
work relief. It states as follows: “Employers who comply with sections 4127.01 to
4127.14 of the Revised Code, are not liable to respond in damages at common law or
by statute for injury or death of any work-relief employee, wherever occurring. ***.” For
purposes of R.C. Chapter 4127, “employer” is defined, inter alia, as a “state agency
having supervision or control of work-relief employees.” See R.C. 4127.01(C).
{¶14} R.C. 4127.10 utilizes language similar to that in R.C. 4123.74, which
states in pertinent part: “Employers who comply with section 4123.35 of the Revised
Code shall not be liable to respond in damages at common law or by statute for any
injury, or occupational disease, or bodily condition, received or contracted by any
employee in the course of or arising out of his employment ***.”
{¶15} Appellee Morgan County Agricultural Society herein asserts in its
response brief that during the development of the case below, “it became apparent that
Appellee indeed met the statutory definition of employer, as defined by R.C. 4127.01.”
Appellee Brief at 9. Appellee also seems to assert, with little explanation, that it is a
“state agency” for purposes of the statute. See Appellee Brief at 12. Appellee thus
urges that appellants’ exclusive remedy in this case is the workers’ compensation
system. Appellee Brief at 9.
{¶16} We note that in its motion for summary judgment, appellee argued that
Edward “either has to successfully present an intentional tort claim pursuant to the
statute, or he has no cause of action against the fairgrounds because he is barred from
asserting an ordinary negligence claim against his employer.” Summary Judgment
Motion at 6. However, appellee never took this legal position via asserting a defense of
Morgan County, Case No. 12 AP 0009 5
statutory immunity in its answer or by filing an amended answer with such a defense. In
fact, it is undisputed that appellee originally asserted that Edward was not appellee’s
employee. Although there appears to be no case law on point as to work-relief
situations under R.C. 4127.10, appellants direct us to Hamilton v. East Ohio Gas Co.
(1973), 47 Ohio App.2d 55, for the proposition that the employer immunity defense set
forth in R.C. 4123.74 must be pled as an affirmative defense under App.R. 8(C). In
Hamilton, the Ninth District Court of Appeals held: "If all or any one of those causes of
actions are barred by R.C. 4123.74 or 4123.74.1, the defendants should properly plead
their contention as a defense, and then it could be tested by a proper motion under Civil
Rule 56, or otherwise." Id. at 58. The Ninth District's decision in Hamilton has been
relied upon by the First District Court of Appeals in Merritt v. Saalfeld, Hamilton App.No.
C-840719, 1985 WL 11484, as well as the Third District Court of Appeals in Schroerluke
v. AAP St. Mary's Corp., Auglaize App.No. 2-95-27, 1996 WL 65595.
{¶17} Appellee did maintain in its answer that appellants’ claims were “barred by
the exclusive remedies set forth in the Ohio Constitution and the Ohio Revised Code.
***” See Answer of Appellee at para. 8. Appellee also included this statement in its
answer: "This Defendant hereby provides notice of its retention to rely on other
affirmative defenses as may be discovered or become apparent hereafter and
specifically reserves the right to amend this answer to assert additional affirmative
defenses as discovery progresses." Id. at para. 16. However, “[a] party seeking to
assert an affirmative defense pursuant to Civ.R. 8(C) is instructed by the language of
the rule that the listed affirmative defenses must be ‘set forth affirmatively.’ Courts
construing this language have determined that a party must set forth the listed
Morgan County, Case No. 12 AP 0009 6
affirmative defenses with specificity or else they are waived.” Taylor v. Merida Huron
Hospital of Cleveland Clinic Health System (2000), 142 Ohio App.3d 155, 157, 754
N.E.2d 810, citing Arthur Young & Co. v. Kelly (1993), 88 Ohio App.3d 343, 348, 623
N.E.2d 1303, 1306.
{¶18} Accordingly, we hold the trial court erred as a matter of law in permitting
appellee to rely on the statutory immunity provided in R.C. 4127.10 for purposes of
summary judgment under the circumstances of this case. In so holding, we do not reach
the issue of whether Edward was or was not an employee of appellee under R.C.
Chapter 4127. Appellants’ First Assignment of Error is sustained.
II.
{¶19} In their Second Assignment of Error, appellants contend the trial court
erred in applying an “intent” standard, as opposed to a “negligence” standard, in
reaching its decision to grant summary judgment in favor of appellee. We agree.
{¶20} As an appellate court reviewing summary judgment issues, we must stand
in the shoes of the trial court and conduct our review on the same standard and
evidence as the trial court. Porter v. Ward, Richland App.No. 07 CA 33, 2007–Ohio–
5301, ¶ 34, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506
N.E.2d 212.
{¶21} Civ.R. 56(C) provides, in pertinent part: “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. * * * A summary
Morgan County, Case No. 12 AP 0009 7
judgment shall not be rendered unless it appears from the evidence or stipulation, and
only from the evidence or stipulation, that reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence or stipulation
construed most strongly in the party's favor. * * * ”
{¶22} Appellants in the case sub judice essentially present a two-pronged
argument: First, appellants maintain that there is a genuine issue of material fact as to
whether appellee negligently injured Appellant Edward. Secondly, appellants argue that
to the extent that comparative negligence exists in this matter, such an issue should be
resolved by a jury.
{¶23} The record before us provides evidence that during time periods when
Edward was doing his mowing work, appellee was operating the mower contrary to
Toro’s safety specifications. Included in the record before us is the deposition of
Herman “Bud” Christopherson, who was an engineer for Toro from 1965 to 2000 and
assisted in the design and testing of the Reelmaster 216 mower. According to
Christopherson’s inspection of the mower in question, two safety interlocks had been
bypassed or removed at the time of the incident. See Christopherson Depo. at 25-26.1
The design of these interlocks was such that if the operator either raised the mowing
reels or lifted his or her weight off the seat, the mowing reels would stop spinning. Id. at
24.
{¶24} In its response brief, appellee, while maintaining its appellate argument
that Edward was an “employee” and that negligence is not the standard, does not
1
Appellee maintains there were a total of two Reelmaster mowers at the golf course.
See Appellee’s Brief at 5.
Morgan County, Case No. 12 AP 0009 8
dispute that “taking this as an ordinary negligence case, there may be genuine issues of
material fact for a jury that could render the matter inappropriate for summary
judgment.” Appellee Brief at 12. Furthermore, because appellants have alleged that the
injury to Edward occurred when he used his hand to clean off the mower reels,
comparative negligence may be extant in this case. This Court has recognized that
“[i]ssues of comparative negligence are for the jury to resolve unless the evidence is so
compelling that reasonable minds can reach but one conclusion.” Ortner v. Kleshinski,
Morrison, & Morris, Richland App.No. 02-CA-4, 2002-Ohio-4388, ¶ 26, citing Simmers v.
Bentley Construction Company (1992), 64 Ohio St.3d 642, 597 N.E.2d 504, 1992-Ohio-
42.
{¶25} Upon review, we find that genuine issues of material fact exist as to
negligence and comparative negligence, and that the trial court erred in granting
summary judgment in favor of appellee.
{¶26} Appellants’ Second Assignment of Error is sustained.
III.
{¶27} In their Third Assignment of Error, appellants contend that if he is
considered to be appellee's “employee,” the trial court erred by implicitly determining
that he did not satisfy the rebuttable presumption of intent to injure pursuant to R.C.
2745.01(C).
{¶28} R.C. 2745.01, which addresses requirements for employer liability, states
in pertinent part:
{¶29} “(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
Morgan County, Case No. 12 AP 0009 9
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.
{¶30} “ ***.
{¶31} “(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.
{¶32} “ ***.”
{¶33} Based on our determinations in regard to appellant’s previous assigned
errors, we find the issues raised in appellants’ Third Assignment of Error to be moot in
the present appeal.
{¶34} For the reasons stated in the foregoing opinion, the decision of the Court
of Common Pleas, Morgan County, Ohio, is hereby reversed and remanded for further
proceedings.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0612
Morgan County, Case No. 12 AP 0009 10
IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
EDWARD and AMY MARTIN :
:
Plaintiffs-Appellants :
:
-vs- : JUDGMENT ENTRY
:
MORGAN COUNTY AGRICULTURAL :
SOCIETY :
:
Defendant-Appellee : Case No. 12 AP 0009
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morgan County, Ohio, is reversed and
remanded for further proceedings consistent with this opinion.
Costs assessed to appellee.
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JUDGES