Schiemann v. Foti Contracting, L.L.C. ( 2013 )

[Cite as Schiemann v. Foti Contracting, L.L.C., 2013-Ohio-269.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98662
ROBERT SCHIEMANN, ET AL.
PLAINTIFFS-APPELLANTS
vs.
FOTI CONTRACTING, L.L.C., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-730877
BEFORE: Blackmon, J., Stewart, A.J., and Jones, J.
RELEASED AND JOURNALIZED: January 31, 2013
ATTORNEYS FOR APPELLANTS
Stephen S. Vanek
Jeffrey H. Friedman
Friedman, Domiano & Smith Co.
55 Public Square, Suite 1055
Cleveland, OH 44113
David R. Grant
Plevin & Gallucci Company, L.P.A.
55 Public Square, Suite 2222
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Jan L. Roller
Megan D. Stricker
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, E.
Cleveland, OH 44114
PATRICIA ANN BLACKMON, J.:
{¶1} Appellants Robert Schiemann and Joana Schiemann (“the Schiemanns”)
appeal from the trial court’s granting of summary judgment in favor of appellee Foti
Contracting, L.L.C. (“Foti”).1 They assign the following error for our review:
The trial court erred when it granted summary judgment in favor of
Appellee Foti Contracting, L.L.C.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
judgment. The apposite facts follow.
Facts
{¶3} Robert Schiemann was employed by Foti intermittently since 1993. Foti is
an independent subcontractor of Panzica Construction Company (“Panzica”). Panzica
had hired Foti to provide masonry services at a project located at 1211 St. Clair Avenue in
Cleveland, Ohio. On July 8, 2008, Schiemann was working with the stone masons who
were laying stone on the exterior of a building. His duties included raising the scaffold’s
work platform on which the masons stood to perform their work. Schiemann was
working 18 feet above the ground, raising the platform from the third to the fourth level
when he lost his balance and fell forward through the approximately three-foot gap
between the front of the scaffold and the face of the building and sustained injuries.
{¶4} On July 2, 2010, the Schiemanns filed an employer intentional tort lawsuit
against Foti pursuant to R.C. 2745.01(A) and (C).2 They contended that an intentional
The Schiemanns’ complaint originally also included Panzica Construction,
1
but the Schiemanns later voluntarily dismissed Panzica from the case without
prejudice.
tort occurred because Foti did not provide Schiemann with a safety harness and the
scaffolding lacked a guardrail in the area facing the building and side rails to prevent
Schiemann from falling.
{¶5} Foti filed a motion for summary judgment in which it argued that it did not
have the requisite deliberate intent necessary for a successful intentional tort claim. It
argued that it provided intensive safety training to its employees regarding the erection of
scaffolds in the form of written materials and videos. Foti also conducted weekly
“toolbox safety talks” at which fall prevention was a topic that was covered.
{¶6} Schiemann also stated in his deposition that he had also participated in
classes conducted by Foti regarding the correct way to erect scaffolding. Foti also sent
him to a four hour safety seminar on the erection of scaffolding conducted by OSHA.
Schiemann had erected scaffolding “many times” before the accident without using a
safety harness. He stated that he would not have used a harness even if one had been
offered because he felt it was not needed to complete his job safely. He testified that in
his experience in the industry, he did not recall ever seeing an employee of Foti’s or other
contractors wearing a harness when erecting scaffolding. He also admitted that if he
asked for a harness, Foti would have provided one.
{¶7} The Schiemanns opposed the motion arguing that the intentional tort statute
has two levels of intent: one that requires the employer to have a “deliberate intent” to
2
The Schiemanns also alleged a claim for loss of consortium on behalf of
Joana.
injure, and one that only required that the employer have an “intent to injure.” They
argued that the evidence met the lower standard of “intent to injure” because Foti failed to
abide by OSHA’s requirement that fall protection and guardrails be provided to
Schiemann.
{¶8} In an eight-page opinion, the trial court entered summary judgment in favor
of Foti. The court noted that Schiemann admitted in his deposition that if he desired a
harness, Foti would have provided one for him. The court also found that although “Foti
did not strictly require employees to wear fall protection gear, its actions do not rise to the
level required for recovery under Ohio’s employer intentional tort statute.” The court
also concluded that Foti did not specifically direct Schiemann to perform his job in a
dangerous way.
Motion for Summary Judgment
{¶9} In their sole assigned error, the Schiemanns argue that the trial court erred
by granting summary judgment under the intentional tort statute.
{¶10} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio
Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any
material fact exists, (2) the party moving for summary judgment is entitled to judgment as
a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can reach only one conclusion that is adverse to the nonmoving
party. We conclude the trial court did not err by granting summary judgment as a matter
of law in favor of Foti.
{¶11} A cause of action for an employer intentional tort is governed by R.C.
2745.01, enacted in 2005, which provides:
(A) In an action brought against an employer by an 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.
(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.
(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.
{¶12} The Ohio Supreme Court in Stetter v. R.J. Corman Detailment Servs.,
L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, N.E.2d 1092, stated that the Ohio General
Assembly, in enacting R.C. 2745.01, as expressed particularly in subsection (B), meant to
“significantly curtail an employee’s access to common-law damages” and “permit
recovery for employer intentional torts only when an employer acts with specific intent to
cause injury.” Id. at 284. (Emphasis in original.)
{¶13} Schiemann relies on this court’s opinions in Houdek v. ThyssenKrupp
Materials, 8th Dist. No. 95399, 2011-Ohio-1694, and Hewitt v. The L.E. Myers Co., 8th
Dist. No. 96138, 2011-Ohio-2960, in arguing summary judgment was improperly granted.
However, both cases have been recently reversed by the Ohio Supreme Court.
{¶14} In Houdek, this court concluded that the new intentional tort statute created
two types of intent: “intent to injure” and “deliberate intent to injure.” We held that the
employer could be found liable for an employee’s injuries under the “intent to injure”
standard, if it “objectively believed the injury [to the employee] was substantially certain
to occur,” even if there was a lack of proof of deliberate intent to injure. Houdek at ¶
46. We concluded that the legislature committed a “scrivener’s error” by defining
“substantially certain” in section (B) to mean “deliberate intent” because the terms are not
synonymous and are in “a state of harmonic dissonance.” Id. at ¶ 42.
{¶15} The Ohio Supreme Court disagreed and reversed our decision. Houdek v.
Thyssen Krupp Materials, Slip Opinion No. 2012-Ohio-5685. The Ohio Supreme Court
held that the statute requires one intent: that the employer have a deliberate intent to
injure the employer. The court explained as follows:
[I]n Stetter, we observed that “R.C. 2745.01 embodies the General
Assembly’s intent to significantly curtail an employee’s access to
common-law damages for what we will call a ‘substantially certain’
employer intentional tort.” Stetter at ¶ 27.
It is therefore manifest that R.C. 2745.01(B) is not the result of a
scrivener’s error. As we stated in both Kaminski and Stetter, the
General Assembly intended to limit claims for employer intentional
torts to situations in which an employer acts with the “specific intent”
to cause an injury to another. Kaminski at ¶ 26; See also 6 Larson’s
Workers’ Compensation Law, Section 103.03, 103-7 to 103-8 (2001)
(explaining that an employer’s “knowingly permitting a hazardous
work condition to exists [and] knowingly ordering employees to
perform an extremely dangerous job * * * falls short of the kind of
actual intention to injure that robs the injury of accidental character.”
(footnotes omitted).
In accord with this authority, absent a deliberate intent to injure
another, an employer is not liable for a claim alleging an employer
intentional tort, and the injured employee’s exclusive remedy is within
the workers’ compensation system. Id. at ¶ 23-25.
{¶16} The court further explained that R.C. 2745.01 appears to harmonize the
intentional tort law of Ohio with that of the majority of jurisdictions and quoting 6
Larson’s Workers’ Compensation Law Section 103.03 (2008) stated:
[T]he common-law liability of the employer cannot, under the almost
unanimous rule, be stretched to include accidental injuries caused by
gross, wanton, wilful, deliberate, intentional, reckless, culpable, or
malicious negligence, breach of statute, or other misconduct of the
employer short of a conscious and deliberate intent directed to the
purpose of inflicting injury. Houdek at ¶ 23.
{¶17} Thus, it appears under current Ohio law, that without showing evidence of a
history of animosity or ill-will between the employer and employee that would support
evidence of a subjective intent by the employer to injure the employee, an intentional tort
claim will not lie. The evidence does not support such a conclusion. Foti held weekly
safety talks and conducted classes on the erection of scaffolding and provided written
materials and videos to employees on fall safety. Foti also sent Schiemann to a four hour
OSHA safety seminar regarding fall hazards. These actions show Foti was proactive
about the employee’s safety in erecting scaffolding and that it wanted to prevent injuries
from occurring.
{¶18} Although the safety harnesses were removed from the construction site a
day before the accident, Schiemann admitted that if he had asked for a harness, Foti
would have provided him with one. Moreover, Schiemann admitted that even if the
harnesses were on the construction site, he would not have worn one because he had
never worn one before when erecting scaffolding and, in fact, did not believe one was
necessary to complete his job safely.
{¶19} Additionally, no one had ever fallen or been injured on Foti’s job sites while
performing the task that Schiemann was performing before his fall. Foti crew members
testified that raising the platforms is more dangerous if it is done while wearing a safety
harness because the harness gets in the way causing tripping hazards. In fact, Foti
personnel believed it was safer to not wear a safety harness while performing the task in
question. Therefore, based on these facts, we cannot say Foti had the deliberate intent to
injure Schiemann.
{¶20} Schiemann also relies on our case in Hewitt to contend that the trial court
erred by granting summary judgment on his claim pursuant to R.C. 2745.01(C).
Subsection (C) concerns the removal of safety guards. Schiemann argues that the safety
harness and guardrail constitute “safety guards” under the statute.
{¶21} Hewitt was also recently reversed by the Ohio Supreme Court. Hewitt v.
L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317. The Ohio Supreme Court in Hewitt
held that:
As used in R.C. 2745.01(C), “equipment safety guard” means a device
designed to shield the operator from exposure to or injury by a
dangerous aspect of the equipment, and the “deliberate removal” of an
equipment safety guard occurs when an employer makes a deliberate
decision to lift, push aside, take off, or otherwise eliminate that guard.
{¶22} The Hewitt Court concluded that the employer was not liable for failing to
provide rubber gloves to an employee working on electrical lines. In construing the
statute, the court defined “safety guard” by using the plain meaning of the words. In
doing so, the court concluded that “safety guard” did not include all devices designed to
prevent injury, but includes only devices on equipment designed to shield the operator
from exposure or injury by the equipment. The court explained:
To construe “equipment safety guard” to include any generic
safety-related item ignores not only the meaning of the words used but
also the General Assembly’s intent to restrict liability for intentional
torts. As the Ninth District observed in Barton v. G.E. Baker Constr.,
2011-Ohio-5704, ¶ 11, “[f]rom these common dictionary definitions, it
becomes apparent that not all workplace safety devices are ‘equipment
safety guards’ as that term is used in Section 2745.01(C).
A broad interpretation of the phrase does not comport with the
General Assembly’s efforts to restrict liability for intentional tort by
authorizing recovery “only when an employer acts with specific
intent.” Stetter v. R.J. Corman Derailment Servs., LLC, 125 Ohio St. 3d
280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 26; Kaminski v. Metal & Wire
Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 56.
As we explained in Kaminski, the statutory restriction of
intentional-tort liability “is supported by the history of employer
intentional-tort litigation in Ohio and by a comparison of the current
statute to previous statutory attempts.” Id. ¶ 57. It is not our role to
second-guess the policy matters set by the General Assembly. Stetter at
¶ 35. Consequently, we refrain from expanding the scope of the
rebuttable presumption of intent in R.C. 2745.01(C).
Free-standing items that serve as physical barriers between the
employee and potential exposure to injury, such as rubber gloves and
sleeves, are not “an equipment safety guard” for purposes of R.C.
2745.01(C). Instead, rubber gloves and sleeves are personal protective
items that the employee controls. We adopt the definition in Fickle and
hold that as used in R.C. 2745.01(C), “equipment safety guard” means
“a device that is designed to shield the operator from exposure to or
injury by a dangerous aspect of the equipment.” Fickle, ¶ 43. Id. at ¶
24 and 25.
{¶23} Our reading of Hewitt leads us to conclude that the Schiemanns’ case is not
a subsection (C) case. In fact, Schiemann admitted if he requested a harness, one would
have been provided and that he would not have worn a safety harness even if provided.
The harness is more akin to the rubber gloves in Hewitt in that it was under the
employee’s control whether to use one or not.
{¶24} The fact that the scaffolding failed to have a midlevel guardrail on the area
facing the building and did not have side rails also does not create a subsection (C) case.
There is no evidence that the scaffolding ever had a guardrail or side rails that were
removed by Foti. Moreover, the Ohio Supreme Court has held that the violation of an
OSHA regulation does not in itself create an intentional tort. Hernandez v. Martin
Chevrolet, Inc., 72 Ohio St.3d 302, 303, 1995-Ohio-200, 649 N.E.2d 1215. In
Hernandez, the Supreme Court held, “Congress did not intend OSHA to affect the duties
of employers owed to those injured during the course of their employment.” Thus, any
OSHA violations do not factor into the determination of whether Foti acted with
deliberate intent to harm Schiemann. Id.; see also Hristovski v. The Bard Mfg. Co., 6th
Dist. No. WM-03-022, 2004-Ohio-3984, ¶ 13. Accordingly, based on the recent case
law handed down from the Ohio Supreme Court, the Schiemanns’ sole assigned error is
without merit and is overruled.
{¶25} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, A.J., and
LARRY A. JONES, SR., J., CONCUR