Bechtel v. Multi-Cast Corp. , 2024 Ohio 3426 ( 2024 )

[Cite as Bechtel v. Multi-Cast Corp., 2024-Ohio-3426.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
FULTON COUNTY
Kevin L. Bechtel et al. Court of Appeals No. F-23-010
Appellants
Trial Court No. 22 CV 0085
v.
Multi-Cast Corporation et al. DECISION AND JUDGMENT
Appellees Decided: September 6, 2024
*****
Kevin J. Boissoneault and Jonathan M. Ashton, for appellants.
Mark S. Barnes and Robert L. Solt, for appellees.
*****
DUHART, J.
{¶ 1} This is an appeal from a judgment by the Fulton County Common Pleas
granting summary judgment in favor of appellee Multi-Cast, LLC (“MCL”). For the
reasons that follow, the trial court’s judgment is affirmed.
Statement of the Case
{¶ 2} On June 22, 2018, appellants Kevin Bechtel and Debra Bechtel
(“appellants”) filed a lawsuit in the trial court seeking damages for injuries sustained by
Kevin Bechtel (Bechtel”), on June 24, 2016, in the course of and arising out of his
employment with Multi Cast LLC (“MCL”). The court docketed the case as No. 18-CV-
00105. Appellants’ complaint alleged that MCL committed an employer intentional tort
under R.C. 2745.01(A) and (C) by: 1) knowingly allowing a dangerous work situation; 2)
knowingly, intentionally, and deliberately requiring Bechtel to work on a saw lacking
“necessary equipment safety guards of anti-kickback devices and spreader;” 3)
knowingly, intentionally, and deliberately requiring Bechtel to work on the
aforementioned saw despite knowing serious injury was substantially certain to occur;
and 4) knowingly, intentionally, and deliberately failing to adequately train Bechtel. In
the alternative, appellants alleged that Bechtel’s injury resulted from MCL’s negligence.
MCL answered appellants’ complaint, and the case proceeded according to the trial
court’s scheduling order.
{¶ 3} MCL moved the court for summary judgment on August 22, 2019, after the
parties conducted extensive discovery. On January 10, 2020, the trial court denied the
motion for summary judgment on the ground that “numerous material and relevant facts
[were] still in dispute.”
{¶ 4} On April 12, 2021, MCL moved the court to reconsider its summary
judgment decision. On June 2, 2021, the court scheduled a hearing on the motion for
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reconsideration, which was to occur on June 21, 2021. On June 22, 2021, appellants
voluntarily dismissed their complaint.
{¶ 5} On June 16, 2022, appellants refiled their complaint, in case No. 22-CV-
0085, making the same allegations that were set forth in the original complaint. MCL
timely answered. On October 5, 2022, appellants moved to transfer the file from case No.
18-CV-00105 to the present case, which motion MCL opposed. On November 1, 2022,
the court granted appellants’ motion, thereby transferring all documents from case No.
18-CV-00105 to the present case. Neither party conducted any additional discovery, and
discovery closed on June 19, 2023, according to the court’s February 21, 2023, order.
{¶ 6} On August 14, 2023, MCL filed its motion for summary judgment based on
the record documents filed in case No. 18-CV-00105, which included depositions of
Bechtel; former floor operation manager and current area supervisor Jeffrey Williams;
former MCL general manager Michael Schnipke; and former MCL human resource
manager Nicole Verity. Also contained in the record was the August 11, 2023 affidavit
of William Martin, who is the Direct and Vice Chairman of Evan Industries, which
company is the sole shareholder of MCL. On or about September 11, 2023, appellants
filed a memorandum in opposition to MCL’s summary judgment motion. Appellants
supported their memorandum in opposition with a May 23, 2017, report of the Bureau of
Workers’ Compensation Safety Violations Investigation Unit (SVIU); a transcript of a
hearing before the Industrial Commission of Ohio on Bechtel’s application for a
Violation of a Specific Safety Requirement (VSSR); the Industrial Commission’s order
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pertaining to Bechtel’s VSSR application; copies of two owner’s manuals regarding the
table saw at issue; and a September 8, 2023, affidavit of appellants’ expert, Gerald
Rennell. On October 9, 2023, MCL filed its reply memorandum.
{¶ 7} On October 26, 2023, the trial court granted MCL’s motion for summary
judgment. Appellants timely appealed the trial court’s decision.
Statement of the Facts
{¶ 8} The facts of this case, viewed in a light most favorable to appellants, are as
follows. Multi-Cast Corporation (“MCC”) is solely owned by four individual
shareholders: Michael D. Jewell, Robert C. Stewart, Timothy E. Moxim, and Randall E.
Vonier. In 2015, MCC defaulted on its obligations to its senior secured lenders, causing it
to cease operations and to surrender its assets to PNC Bank.
{¶ 9} On March 2, 2015, MCL was incorporated as a Michigan limited liability
company duly organized and authorized to do business in the state of Ohio. MCL’s sole
shareholder is Evans Industries. On March 9, 2015, MCL purchased the assets of MCC
for cash. Prior to the asset sale, MCL and MCC had no ongoing business relationship.
The purchase agreement provides that MCL expressly disclaims any and all potential
liabilities of MCC. The purchase was for cash and involved no transfer of stock. Upon
completion of the asset purchase, MCL provided new corporate management and
directors. Although no employee of MCC became an officer or director of MCL, many of
MCC’s employees – including management-level employees – remained with the
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business and became employees of MCL. No past owner of MCC is involved in any way
with the business of MCL.
{¶ 10} MCL is a manufacturer of aluminum castings. As part of the assets
purchased by MCO from MCC on March 9, 2015, MCL acquired a 1943 Delta Model
1450 10” Tilting Arbor Unisaw (“table saw”), which had been in use since the mid-
1940s. The instruction manual for the machine contains “Instructions for Adjusting and
Operating the No. 1450 Tilting Arbor Saw,” together with “Operating and Maintenance
Instructions for 10” Circular Saw Guards.” The instructions related to the circular saw
guards explain that
[n]o one saw guard is suitable for all types of work,
consequently it is important that a customer obtain that type
of guard best suited for his particular work. The Unisaw
Tilting Arbor Circular Saw was designed with that end in
view, therefore, provisions were made for mounting splitters,
splitter guards, basket swing guard, solid hood guard, and
combinations of the above.
(Emphasis added.) These instructions then go on to describe “the different units
available.”
{¶ 11} In 2013, MCC purchased and installed a Biesemeyer Blade Guard System
on the table saw. According to the Biesemeyer Blade Guard System manual, the system
came with a blade guard and a splitter with an anti-kickback device that attached to the
saw behind the blade guard.
{¶ 12} Over the years, employees of MCC -- and then MCL -- would at times take
the splitter/spreader and anti-kickback device off the table saw, believing that the device
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made the operation of the table saw more dangerous and less efficient. Bechtel testified
that he never saw a spreader or anti-kickback device on the MCL table saw.
{¶ 13} MCL hired Bechtel in mid-April 2016 to work in maintenance and repair.
Bechtel worked in maintenance and repair for most of his life and learned how to safely
operate table saws while attending vocational school at Macomber High School. Bechtel
bought his own table saw in 1991 and has had a woodworking shop at his home
containing a number of power saws, including a table saw, for the past four decades.
{¶ 14} On June 16, 2016, Bechtel received training from then-human resource
manager Nicole Verity on MCL’s Personal Protective Equipment Policy. The training
material presented by Verity on June 16, 2016, provides that gloves are required only in
“the melt room, finishing, welding, and pouring tasks.”
{¶ 15} On June 23, 2016, Bechtel operated the table saw -- which was equipped
with a blade guard but without a splitter/spreader or anti-kickback device -- for about an
hour, cutting strips of lightweight insulation board. The next day, Bechtel continued
cutting the 3-foot-long insulation boards into 2-inch-wide strips. As he was cutting the
last two-inch-wide strip on the insulation board, with approximately 1.5 inches left to the
edge of the board, the 1.5-inch strip began to chatter. To prevent the chattering, Bechtel
placed his left hand on the saw’s table behind the blade with his left index finger up
against the edge of the 1.5-inch strip of board, and shortly thereafter he made contact
with the saw blade, amputating his left index finger and injuring his left middle finger.
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{¶ 16} Bechtel was wearing gloves at the time of his accident. He was aware of
the danger of using gloves while operating a table saw because he knew that loose
clothing could get caught and pulled into the saw blade. Bechtel recalls very little about
how his injury occurred. He acknowledges that he should not have been wearing gloves
while operating the table saw. When asked what could have been done to prevent this
injury, Bechtel stated on a portion of the injury report, “Don’t wear gloves is all I can
think of.”
{¶ 17} On the date of the injury, MCL was a complying state fund employer under
Ohio’s workers’ compensation law, paying premiums to the Ohio Bureau of Workers’
Compensation. Bechtel filed a workers’ compensation claim in connection with the June
24, 2016 injury, and was paid compensation and medical benefits to which he was
entitled under Ohio’s workers’ compensation law.
{¶ 18} In an order dated February 2, 2018, a hearing officer granted Bechtel’s
VSSR application after determining: 1) that MCL violated Ohio Admin. Code Sections
4123:1-5-08(D)(1)(b) and (c), because the saw did not have an anti-kickback or spreader
device in place at the time of Bechtel’s injury; and 2) that use of an anti-kickback or
spreader device would have prevented Bechtel’s injury.
Assignments of Error
{¶ 19} On appeal, appellants assert the following assignments of error:
I. The trial court erred when it granted summary judgment in favor of Appellee
Multi Case, LLC.
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A. Appellee’s failure to install, replace, or repair an equipment safety guard in
violation of a manufacturer\s requirements and OSHA and Ohio Safety
regulations constitutes deliberate removal of an equipment safety guard.
B. The trial court erred in failing to apply the rebuttable presumption of intent
to injure under R.C. § 2745.01©.
C. Regardless of whether Appellant established the rebuttable presumption
under R.C. § 2745.01(C), there still remain genuine issues of material fact
as to whether Appellee acted with deliberate intent to cause injury under
R.C. § 2745.01(A).
Law and Analysis
Standard of Review
{¶ 20} Appellate courts review summary judgment de novo, employing the same
standard as the trial court. King v. Buildtech Ltd. Construction Development, 2023-Ohio-
1092, ¶ 22 (6th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996).
(Additional citation omitted.) Summary judgment is proper only when the moving party
demonstrates:
(1) that there is no genuine issue as to any material fact; (2)
that the moving party is entitled to judgment as a matter of
law; and (3) 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, who is
entitled to have the evidence construed most strongly in his
favor.
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Id., citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978); Civ.R.
56(E).
{¶ 21} “A party seeking summary judgment must specifically delineate the basis
upon which the motion is brought and identify those portions of the record that
demonstrate the absence of a genuine issue of material fact.” Id. at ¶ 23, citing Dresher v.
Burt, 75 Ohio St.3d 280, 293 (1996); Mitseff v. Wheeler, 38 Ohio St.3d 112 (1988),
syllabus. “When a properly supported motion for summary judgment is made, an adverse
party may not rest on mere allegations or denials in the pleadings, but must respond with
specific facts showing that there is a genuine issue of material fact.” Id., citing Civ.R. 56
(E) and Riley v. Montgomery, 11 Ohio St.3d 75, 79 (1984). “A ‘material’ fact is one that
would affect the outcome of the suit under the applicable and substantive law.” Id., citing
Russell v. Interim Personnel, Inc., 125 Ohio App.3d 301, 304 (6th Dist. 1999).
(Additional citations omitted.)
Intentional Tort Law
{¶ 22} “Under R.C. 2745.01(A), an employer is not liable for damages resulting
from an intentional tort committed during the course of a worker’s employment unless
the worker 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.’” King at ¶ 39;
R.C. 2745.01(A). “‘Substantially certain’ means that the employer acted with ‘deliberate
intent to cause an employee to suffer an injury….” Id., citing R.C. 2745.01(B). “If the
worker’s injury was caused by the employer’s ‘[d]eliberate removal’ of an ‘equipment
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safety guard,’ the worker is entitled [under R.C. 2745.01(C)] to a rebuttable presumption
that ‘the removal … was committed with the intent to injure another ….’” Id., citing R.C.
2745.01(C).
{¶ 23} “[T]he General Assembly’s intent in enacting R.C. 2745.01, as expressed
particularly in 2745.01(B), is to permit recovery for employer intentional torts only when
an employer acts with specific intent to cause an injury, subject to [the rebuttable
presumption in subsection] (C)….” Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-
1027, ¶ 56; see also Houdek v. ThyssenKrupp Materials N.A., Inc., 2012-Ohio-5685, ¶ 25
(“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 remedy is within the
workers’ compensation system”). As stated by the Ohio Supreme Court:
R.C. 2745.01 appears to harmonize the law of this state with
the law that governs a clear majority of jurisdictions.
‘[T]he common-law liability of the employer cannot, under
the almost unanimous rule, be stretched to include accidental
injuries caused by the 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 an injury. (Footnote omitted.)’ 6 Larson’s Workers’
Compensation Law (2008), Section 103.03.
Houdek at ¶ 23, citing Kaminski at ¶ 99-100.
{¶ 24} The General Assembly has not defined “equipment safety guard” or
deliberate removal” for purposes of R.C. 2745.01(C). Bliss v. Johns Manville, 2021-
Ohio-1673, ¶ 29 (6th Dist.), citing Fickle v. Conversion Techs. Internatl., Inc., 2011-
10.
Ohio-2960, ¶ 24 (6th Dist.) “Interpretation of an undefined statutory term – and whether
something meets the definition of that term – is a matter of law, not a question of fact.”
King at ¶ 40, citing Bliss at ¶ 29, citing Fickle at ¶ 24 (6th Dist.)
{¶ 25} The Ohio Supreme Court has held that an “equipment safety guard” is “a
device designed to shield the operator from exposure to or injury by a dangerous aspect
of the equipment,” and that 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.” Hewitt v. L.E. Myers Co., 2012-Ohio-5317, ¶ 2. “‘[D]eliberate
removal’ … may be described as a careful and thorough decision to get rid of or
eliminate an equipment safety guard.” Id. at ¶ 29. “Although ‘removal’ may encompass
more than physically removing a guard from equipment and making it unavailable, such
as bypassing or disabling the guard, an employer’s failure to train or instruct an employee
on a safety procedure does not constitute the deliberate removal of an equipment safety
guard.” Id. at ¶ 29, citing Fickle at ¶ 45.
{¶ 26} The Twelfth District Court of Appeals has narrowly interpreted the law to
mean that in order for there to be a “deliberate removal” “there must be both a deliberate
decision – a decision reached after careful and thorough consideration – and actual
removal – the elimination of the existing safety guard.” Camara v. Gill Dairy, LLC,
2023-Ohio-2339, ¶ 23.
{¶ 27} The Seventh and Third District Courts of Appeal have interpreted
“deliberate removal” more broadly to include not just acts but also omissions involving a
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safety guard. The Seventh District Court, in Wineberry v. N. Star Painting Co., 2012-
Ohio-4212 (7th Dist.), stated, in dicta, that “deliberate removal not only encompasses
removing safety equipment, but also the failure to attach safety equipment provided by
the manufacturer.” Id. at ¶ 38. And the Third District Court, in Thompson v.
Oberlander’s Tree & Landscape Ltd., 2016-Ohio-1147 (3d Dist.), determined that “an
employer deliberately removes an equipment safety guard when it makes a deliberate
decision not to either repair or replace an equipment safety guard that is provided by the
manufacturer and/or required by law or regulation to be on the equipment.” Id. at ¶ 34.
{¶ 28} Although this court has not previously specified whether it would define
“deliberate removal” as including safety guard omissions in addition to outright removal
of an existing safety guard, in Creveling v. Lakepark Industries, Inc., 2021-Ohio-764 (6th
Dist.), we expressly declined to broaden the definition beyond that stated in Wineberry to
include the failure to attach safety equipment, whether or not supplied by the
manufacturer. Id. at ¶ 64.
{¶ 29} As related to the current case, we agree with the court in Camara, wherein
it stated that “the failure to repair or replace a safety guard is akin to permitting a
hazardous condition to exist,” and that “an employer’s mere knowledge of a hazardous
condition is insufficient to show intent to injure under R.C. 2745.01.” Camara at ¶ 28,
citing Houdek, 2012-Ohio-5685, ¶ 24 (stating that “the General Assembly intended to
limit claims for employer intentional torts to situations in which an employer acts with
the ‘specific intent’ to cause injury to another”); see also Hunter v. Cole Tool & Die
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Company, 2023-Ohio-2131 (holding that the employer’s knowledge about employees
bypassing a safety guard, combined with a failure to act, does not fall within the scope of
R.C. 2745.01(C)).
R.C. 2745.01(C) does not apply to Bechtel’s case.
{¶ 30} Bechtel states that “[o]ne issue in this appeal is whether [CML] deliberately
removed an equipment safety guard when it failed to install, repair, or replace the splitter
and anti-kickback fingers.” Here, however, the record contains no evidence that MCL
deliberately removed an equipment safety guard from the table saw, triggering a
rebuttable presumption of intent to injure under R.C. 2745.01(C). Even assuming,
without deciding, that the spreader/anti-kickback device was an “equipment safety
guard,” and that it was on the table saw during MCL’s ownership, there is no evidence of
“deliberate removal” by MCL.
{¶ 31} Although there is evidence that the spreader/anti-kickback device that was
purchased and installed by MCC in 2013 was removed by various employees (including
manager/supervisor Jeffrey Williams) while they operated the saw, there is no testimony
from any witness in this case that the removal of the device occurred at the direction of
management. At most, the evidence shows that MCL was aware that the device was
missing. Such evidence is insufficient to find that the device was removed by MCL as the
result of a “deliberate decision to lift, push aside, take off, or otherwise eliminate” the
spreader/anti-kickback device. Hewitt, 2012-Ohio-5317, at ¶ 2. Nor could such evidence
support a finding that MCL made “a careful and thorough decision to get rid of or
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eliminate” the device. Id. at ¶ 29. Therefore, the presumption of specific intent to injure
in R.C. 2745.01(C) does not arise.
{¶ 32} In rendering this decision, we need not consider the determination set forth
in Wineberry, 2012-Ohio-4212, at ¶ 38, that “deliberate removal not only encompasses
removing safety equipment, but also the failure to attach safety equipment provided by
the manufacturer.” This is because there is no evidence to show that safety equipment
was actually provided by the saw’s manufacturer when the saw was purchased in the
1940s. The manufacturer’s instructions that Bechtel references in his opposition state
only that “it is important that a customer obtain that type of guard best suited for his
particular work,” and that “provisions were made [as part of the saw apparatus] for
mounting splitters, splitter guards, basket swing guard, solid hood guard, and
combinations of the above.” These instructions indicate, at most, a recommendation by
the manufacturer that a guard be purchased in conjunction with the purchase of the saw
and not that any guard was actually provided by the manufacturer. The decision in
Wineberry is therefore inapplicable to the facts of this case.
Bechtel did not show that MCL had the requisite intent to injure.
{¶ 33} Bechtel argues that even if he is not entitled to the rebuttable presumption
under R.C. 2745.01(C), MCL’s actions in removing and failing to install, repair, or
replace required equipment safety guards on the subject table saw evidence its deliberate
intent under R.C. 2745.01(A). We disagree that evidence of such actions amounts to
evidence that MCL specifically intended to injure any of its employees. The most that
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could be found is that MCL was aware that the splitter/anti-kickback device was missing
and that it knew that this presented its employees with a dangerous condition. But there is
no evidence that by not installing, repairing, or replacing the device, MCL specifically
intended to injure its employees. Accordingly, even construing the evidence in a light
most favorable to Bechtel, there is no genuine issue of material fact as to whether MCL
had the specific intent to injure. See Houdek at ¶ 23, citing Kaminski at ¶ 56, 99-100; see
also Hubble v. Haviland Plastic Products Co., 2010-Ohio-6379, ¶ 7, 9 (3d Dist.) (finding
that although the employer had received an OSHA citation and acted with reckless
disregard for the safety of its employees, such conduct is not actionable under R.C.
2745.01 without evidence of an actual intent to cause injury); Pastroumas v. UCL, Inc.,
2016-Ohio-4674, ¶ 30 (1st Dist.) (“failure to provide proper fall or other safety protection
or to adhere to OSHA regulations does not create a genuine issue of fact as to whether an
employer committed an intentional tort absent proof of a deliberate, conscious attempt to
injure”).
{¶ 34} For all of the foregoing reasons, Bechtel’s sole assignment of error is found
not well-taken.
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Conclusion
{¶ 35} The judgment of the Fulton County Court of Common Pleas is affirmed.
Appellant is to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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