Hubble v. Haviland Plastics Prods. Co. , 2010 Ohio 6379 ( 2010 )

[Cite as Hubble v. Haviland Plastics Prods. Co., 2010-Ohio-6379.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
BENJAMIN HUBBLE,
PLAINTIFF-APPELLANT, CASE NO. 11-10-07
v.
HAVILAND PLASTIC PRODUCTS,
CO., ET AL., OPINION
DEFENDANTS-APPELLEES.
Appeal from Paulding County Common Pleas Court
Trial Court No. CI-06-228
Judgment Affirmed
Date of Decision: December 27, 2010
APPEARANCES:
Charles V. Contrada for Appellant
J. Allen Smith for Appellees
Case No. 11-10-07
WILLAMOWSKI, P.J.
{¶1} Plaintiff-appellant Benjamin Hubble (“Hubble”) brings this appeal
from the judgment of the Court of Common Pleas of Paulding County granting
summary judgment to defendants-appellees Modern Plastics Recovery, Inc.
(“MPR”) and Drainage Products, Inc. (“DPI”). For the reasons set forth below,
the judgment is affirmed.
{¶2} MPR is a plastics company that recycles used plastic. It has a
warehouse in Haviland, Ohio where bales of plastic are stored. Due to contents of
the bales, each bale varies in size from three to five feet in all directions and
weighs between 1,000 and 2,000 pounds. On May 23, 2006, Hubble was working
for MPR in the warehouse where the bales were stacked six high in places. While
in the course of his employment sweeping the aisle between bales, a bale fell and
struck Hubble. Hubble was seriously injured and is now a paraplegic as a result of
the injury. On September 7, 2006, Hubble filed a complaint against Haviland
Plastics, Inc. (“Haviland”) and MPR alleging an employer intentional tort claim.
Haviland and MPR filed motions for summary judgment on September 21, 2007.
Hubble filed its response to the motion on November 13, 2007.
{¶3} On November 15, 2007, Hubble filed an amended complaint against
MPR and DPI again alleging a claim for employer intentional tort as well as a
claim for negligence. The amended complaint essentially substituted DPI in place
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of Haviland. MPR and DPI filed an answer to the amended complaint on
November 29, 2007. On March 3, 2008, the parties stipulated that DPI would
replace Haviland in the pending motion for summary judgment. The parties also
stipulated that the motion for summary judgment did not include the claims of
negligence. On June 23, 2008, the trial court overruled the motion for summary
judgment.
{¶4} On May 10, 2010, DPI and MPR filed a supplemental motion for
summary judgment claiming a change in the law. Hubble filed its memorandum
in opposition to defendant’s motion on June 3, 2010. On July 12, 2010, the trial
court granted the motion for summary judgment. Hubble appeals from this
judgment and raises the following assignment of error.
The trial court erred in granting judgment as a matter of law to
defendants, because reasonable minds could differ as to whether
defendants had injurious intent, so that the matter should have
been submitted to a jury.
{¶5} When reviewing a motion for summary judgment, courts must
proceed cautiously and award summary judgment only when appropriate. Franks
v. The Lima News (1996), 109 Ohio App.3d 408, 672 N.E.2d 245. “Civ.R. 56(C)
provides that before summary judgment may be granted, it must be determined
that (1) no genuine issues as to any material fact remains to be litigated; (2) the
moving party is entitled to judgment as a matter of law; and (3) it appears from the
evidence that reasonable minds can come to but one conclusion, and viewing the
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evidence most strongly in favor of the nonmoving party, that conclusion is adverse
to the nonmoving party.” State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d
587, 589, 639 N.E.2d 1189. When reviewing the judgment of the trial court, an
appellate court reviews the case de novo. Franks, supra.
{¶6} The facts in this case are not disputed. MPR’s business is cleaning,
sorting, and grinding recycled plastic for resale. Before the processing of the
plastic, it is stored in bales in a warehouse. Each plastic bale was approximately
four feet high by four feet wide, though the dimensions varied. Each bale
weighed between 1,000 and 2,000 pounds. The bales were stacked up to six high
in the warehouse. No flats were used to separate the bales. Additionally, the
bales were held together by wires, and occasionally pieces of plastic would slip
from the bales to the floor. At the end of each shift, employees were required to
sweep the floor in the warehouse area.
{¶7} Hubble was employed by MPR. On May 23, 2006, Hubble was
alone in the warehouse sweeping the floor. He had his back to the bales of plastic
when one of the bales fell from a stack and struck him. Hubble was pinned to the
floor for a length of time and suffered severe permanent injuries. On occasions
prior to Hubble’s injury, agents of MPR had seen bales of the plastic fall to the
floor without any outside force and knew that it was a dangerous condition. In
addition, OSHA had previously cited MPR for failing to properly stack cardboard
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and informed MPR that all bundles needed to be stacked in a manner that would
make them stable and secure against sliding or collapse. After Hubble’s accident,
MPR was again cited by OSHA for failing to properly stack materials.
{¶8} Since the facts are not in question, the only issue before the court is
an interpretation of the appropriate statute. R.C. 2745.01 sets forth a cause of
action for employer intentional torts.
(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 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.
R.C. 2745.01. This statute was found constitutional by the Ohio Supreme Court
in Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-1027,
927 N.E.2d 1066. In Kaminski, the Supreme Court held that under the common
law, the employee only had to show that injuries were substantially certain to
result from an employer’s reckless behavior in order to prove an employer
intentional tort. Id. at ¶32 (citing Fyffe v. Jeno’s Inc. (1991), 59 Ohio St.3d 115,
570 N.E.2d 1108). However, on April 7, 2005, a new statutory standard went into
effect. Id. at 33. The Supreme Court found that the new statute is constitutional,
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thus, the new test to be applied is the statutory definitions, not the common law
ones. Id. at ¶103. The Supreme Court then went on to find that since the injured
employee did not provide any evidence that her “employer acted with deliberate
intent to cause her to suffer an injury,” she did not meet the requirements of R.C.
2745.01 and could not recover for an employer intentional tort. Id. at ¶104.
{¶9} A review of the facts in this case clearly indicate that the employer
acted with reckless disregard for the safety of its employees when it was aware of
the danger of the falling bales and took no action to correct the situation.
However, reckless disregard does not reach the statutory requirement of
“deliberate intent to cause an employee to suffer an injury, a disease, a condition
or death.” R.C. 2745.01. Without evidence that MPR intended for someone such
as Hubble to be injured, he does not meet the current statutory requirements to
recover for an employer’s intentional tort. The trial court did not err in granting
summary judgment and the assignment of error is overruled.
{¶10} The judgment of the Court of Common Pleas of Paulding County is
affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
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