Turner v. Dimex, L.L.C. , 2019 Ohio 4251 ( 2019 )

[Cite as Turner v. Dimex, L.L.C., 2019-Ohio-4251.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
TIM A. TURNER, :
: Case No. 19CA3
Plaintiff-Appellant, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
DIMEX, LLC, :
:
Defendant-Appellee. :
APPEARANCES:
James R. Leach, Parkersburg, West Virginia, for Appellant.
Cari Fusco Evans, Fischer, Evans & Robbins, Ltd., Canton, Ohio, for Appellee.
Smith, P.J.
{¶1} Tim Turner appeals the February 11, 2019 judgment entry of the
Washington County Court of Common Pleas which granted judgment to his
employer, Dimex, LLC, on his claim for intentional tort. Turner asserts the trial
court erred in granting judgment to Dimex, LLC. Having reviewed the record, we
agree with the trial court’s conclusions that: (1) the forklift backup alarm at issue is
not an “equipment safety guard”; and, (2) there is no evidence that Dimex
deliberately removed the backup alarm. Accordingly, we overrule the sole
assignment of error and affirm the judgment of the trial court.
Washington App. 19CA03 2
FACTS
{¶2} Dimex “Appellee” is a manufacturing facility in Marietta, Ohio. Tim
Turner “Appellant” was employed by Appellee as a shipping clerk. On December
14, 2015 while at work, Appellant incurred serious injuries requiring multiple
surgeries to his right leg when he was crushed between two forklifts on the plant’s
loading dock.
{¶3} On November 27, 2017, Appellant filed a complaint against Appellee
alleging permanent personal injuries and associated losses and damages as a result
of Appellee’s deliberate removal of an equipment safety guard on one of its
forklifts. Appellee filed a timely answer, alleging that it was entitled to Workers
Compensation immunity pursuant to R.C. 2745.01. Appellee also alleged
Appellant’s injuries were caused by his own negligence and failure to follow
procedures. As the trial court proceedings unfolded, the parties engaged in written
discovery and depositions.
{¶4} On December 17, 2018, both Appellant and Appellee filed motions for
summary judgment. The parties also filed responsive pleadings. On February 11,
2019, the trial court filed a Judgment Entry Regarding Motions for Summary
Judgment which granted Appellee’s motion and denied Appellant’s motion.
{¶5} This timely appeal followed. Where pertinent, additional facts are set
forth below.
Washington App. 19CA03 3
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO APPELLEE DIMEX, LLC AND DENYING
SUMMARY JUDGMENT TO APPELLANT TIM TURNER.”
STANDARD OF REVIEW
{¶6} Appellate review of summary judgment decisions is de novo, governed
by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St. 3d 199, 2013-
Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 4th Dist. Ross No.
17CA3624, 2019-Ohio- 464, at ¶ 27. Summary judgment is appropriate if the
party moving for summary judgment establishes that (1) there is no genuine issue
of material fact, (2) reasonable minds can come to but one conclusion, which is
adverse to the party against whom the motion is made and, (3) the moving party is
entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th
Dist. Ross No. 18CA3628, 2018-Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny
Treatment Ctr., Inc. v. Wheeler, 129 Ohio St. 3d 39, 2011-Ohio-2266, 950 N.E.2d
157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409,
2014-Ohio-3484, at ¶ 26.
{¶7} The moving party has the initial burden of informing the trial court of
the basis for the motion by pointing to summary judgment evidence and
identifying parts of the record that demonstrate the absence of a genuine issue of
material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St. 3d 280, 293, 662
Washington App. 19CA03 4
N.E.2d 264 (1996); Chase Home Finance at ¶ 27; Citibank, supra, at ¶ 28. Once
the moving party meets this initial burden, the non-moving party has the reciprocal
burden under Civ.R. 56(E) to set forth specific facts showing that there is a
genuine issue remaining for trial. Dresher, 75 Ohio St. 3d at 293, 662 N.E.2d 264.
See also Rose, supra, at ¶ 24.
{¶8} Pursuant to the above rule, a trial court may not enter summary
judgment if it appears a material fact is genuinely disputed. Ball v. MPW Indus.
Servs., Inc., 2016-Ohio-5744, 60 N.E.3d 1279, (5th Dist.) at ¶ 29, citing, Vahila v.
Hall, 77 Ohio St. 3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75
Ohio St. 3d 280, 662 N.E.2d 264 (1996).
LEGAL ANALYSIS
{¶9} Prior to April 7, 2005, the courts looked to common law to determine
whether an employee established his or her employer committed an intentional
tort. Pursuant to Fyffe v. Jeno's, Inc., 59 Ohio St. 3d 115, 118, 570 N.E.2d 1108
(1991), when an employer proceeds despite knowledge that injuries are certain or
substantially certain to result, “he is treated by the law as if he had in fact desired
to produce the result.” Under Fyffe, an employee could establish intent based on
substantial certainty by establishing the following: (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
Washington App. 19CA03 5
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. See Breitenbach v. Double Z Constr. Co., 2016-Ohio-1272, 63 N.E.3d 498, ¶
28 citing Fyffe; Ball, supra, at ¶ 30.
{¶10} R.C. 2745.01, effective April 7, 2005, provides in pertinent part:
(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
Washington App. 19CA03 6
was committed with intent to injure another if an injury or an
occupational disease or condition occurs as a direct result.
Kaminski v. Metal &Wire Products Co., 125 Ohio St. 3d 250, 2010-Ohio-
1027, 927 N.E.2d 1066, at ¶¶ 48-50.
{¶11} In Hoyle v. DTJ Ents., Inc., 143 Ohio St. 3d 197, 2015-Ohio-843, 36
N.E.3d 122, at ¶ 11, the Supreme Court of Ohio observed:
The General Assembly's intent in enacting R.C. 2745.01 was to
‘significantly restrict’ recovery for employer intentional torts to
situations in which the employer ‘acts with specific intent to cause an
injury.’ Kaminski, supra, at ¶ 56; Stetter v. R.J. Corman Derailment
Servs., L.L.C., 125 Ohio St. 3d 280, 2010-Ohio-1029, 927 N.E.2d
1092, at ¶ 26. ‘[A]bsent 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.’ Houdek v. ThyssenKrupp Materials
N.A., Inc., 134 Ohio St. 3d 491, 2012-Ohio-5685, 983 N.E.2d 1253,
¶ 25.1
1. Definition of “equipment safety guard.”
1
The Kaminski court considered the constitutionality of R.C. 2745.01 and determined it to be constitutional. Id. at
¶ 102.
Washington App. 19CA03 7
{¶12} Appellant argues that he is entitled to the presumption of intent to
injure pursuant to R.C. 2745.01(C) because Appellee made a deliberate decision to
leave a forklift in service when it knew that the backup alarm was inoperable and
failed to repair or replace it. The trial court herein found that the forklift backup
alarm is not an “equipment safety guard since it does not shield the operator from
exposure or injury.” The court also found that Appellant is not entitled to the
presumption of intent to injure since he was not the “operator” of the forklift.
{¶13} Our research has led us to various cases which have considered the
issue of the meaning of “equipment safety guard” within the context of R.C.
2745.01(C). In Hewitt v. L.E. Myers Co., 134 Ohio St. 3d 199, 2012-Ohio-5317,
981 N.E.2d 795, the Supreme Court of Ohio found that free-standing items that
serve as physical barriers between the employee and potential exposure to injury,
such as rubber gloves and sleeves, do not constitute “equipment safety guards.” Id.
at ¶ 30. In Beyer v. Rieter Automotive North American, 134 Ohio St. 3d 379, 2012-
Ohio-5627, 982 N.E.2d 708, relying upon the Hewitt decision, the Supreme Court
reversed the decision of the Eighth District Court of Appeals that found that face
masks were equipment safety guards, and consequently entered judgment in favor
of the employer. In Houdek, supra, at ¶ 27, the Supreme Court determined that
safety devices such as orange cones, reflective vests, and retractable gates are not
equipment safety guards. The Supreme Court has also declined to accept cases in
Washington App. 19CA03 8
which appeals courts determined that the following were not equipment safety
guards: a trench box designed to protect workers from a trench collapse; a jib crane
and an observation platform (part of a system of safety devices implemented on a
tire shredder); and a tire bead and bead taper, parts of a wheel assembly unit. See
Barton v. G.E. Baker Construction, 9th Dist. Lorain No. 10CA009929, 2011-Ohio-
5704; Downard v. Rumpke of Ohio, Inc., 12th Dist., 2013-Ohio-4760, 3 N.E.3d
1270; Roberts v. RMB Ents., Inc.,197 Ohio App.3d 435, 2011-Ohio-6223, 967
N.E.2d 1263. (12th Dist.). More recently, the Fifth District Court of Appeals found
that a clevis shackle, separate from a crane and for the purpose of making rigging
equipment more safe, is not an equipment safety guard. See Breitenbach, supra.
{¶14} The Fifth District Court of Appeals also considered a fact pattern and
arguments similar to Appellant’s in Beary v. Larry Murphy Dump Truck Serv.,
Inc., 2014-Ohio-4333, 20 N.E.3d 359. There the employee brought an intentional
tort action against a trucking company after the employee was struck by a skid
steer on a parking lot. The trucking company was hired to pave a grocery store
parking lot. On the date of the accident, Beary was attaching caution tape on the
parking lot. Beary was struck by another employee who was operating a skid steer
that was equipped with a backup alarm that was not functional at the time. The
Washington App. 19CA03 9
operator of the skid steer did not know Beary was behind him. Beary did not know
the skid steer was headed in his direction. 2
{¶15}The Beary court looked to the Supreme Court’s decision in Hewitt v.
L.E. Myers Co., supra, wherein the Court was asked to determine whether
“equipment safety guard” for purposes of R.C. 2745.01(C) includes only those
devices on a machine that shield an employee from injury by guarding the point of
operation of that machine. Id. The Supreme Court explicitly 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.” Id.
The Court rejected a broader interpretation that would include any generic safety-
related items (emphasis added), as such a broad interpretation “ignores not only the
meaning of the words used but also the General Assembly's intent to restrict
liability for intentional torts.” Id.
{¶16} The Hewitt Court had previously adopted the rationale found in Fickle
v. Conversion Technologies, Int'l Inc., 6th Dist. Williams No. WM–10–016, 2011-
Ohio-2960. In Fickle, the trial court found that a jog control switch and an
2
Appellant originally brought suit against his employer “LMDT” for an intentional tort pursuant to R.C. 2745.01.
LMDT moved for summary judgment which the trial court granted on February 17, 2011. Appellant appealed the
trial court's decision. In Beary v. Larry Murphy Dump Truck, Serv. Inc., 5th Dist. Stark No. 2011–CA–00048, 2011-
Ohio-4977, the appellate court affirmed the trial court's ruling. The appellate court found the reasoning in Fickle v.
Conversion Technologies, Int'l Inc., 6th Dist. Williams No. WM–10–016, 2011-Ohio-2960, to be persuasive and
held that the backup alarm is not equipment safety guard pursuant to R.C. 2745.01(C). Appellant appealed the
appellate ruling to the Ohio Supreme Court. The Ohio Supreme Court held this case in abeyance pending its
decision in Hewitt v. L.E. Myers Co., 8th Dist. Cuyahoga No. 96138, 2011-Ohio-5413. After the Ohio Supreme
Court decided the Hewitt case, the Court reversed and remanded this case to the trial court to apply the Hewitt
decision. Beary v. Larry Murphy Dump Truck Serv., Inc., 134 Ohio St. 3d 359, 2012-Ohio-5626, 982 N.E.2d 691.
Washington App. 19CA03 10
emergency stop cable were not equipment safety guards. The court reasoned that
“the jog switch does not shield from accidental contact,” and “the cable does not
guard or prevent” the “catching or entangling” of an operator’s hand.
{¶17} On appeal, the Fickle court observed that, “[i]n the absence of clear
legislative intent to the contrary, words and phrases in a statute shall be read in
context and construed according to their plain, ordinary meaning.” Kunkler v.
Goodyear Tire & Rubber Co., 36 Ohio St. 3d 135, 137, 522 N.E.2d 477 (1988).
The plain, ordinary, or generally accepted meaning of an undefined statutory term
is invariably ascertained by resort to common dictionary definitions. See, e.g.,
Davis v. Davis, 115 Ohio St. 3d 180, 873 N.E.2d 1305, 2007–Ohio–5049, ¶ 17–18:
(internal citations omitted.). Similarly, this court has recognized that “ ‘ “[i]t is a
cardinal rule of statutory construction that where the terms of a statute are clear
and unambiguous, the statute should be applied without interpretation.” ’ ” Wray
v. Gahm Properties, Ltd., 2018-Ohio-50, 103 N.E.3d 1482, (4th Dist.), at ¶ 10,
quoting, Wilson v. Lawrence, 150 Ohio St. 3d 368, 2017-Ohio-1410, 81 N.E.3d
1242, ¶ 11.
{¶18} The Fickle court then went on to construe the undefined statutory
terms according to their generally accepted meaning:
“Guard” is defined as “a protective or safety device; specif: a device for
protecting a machine part or the operator of a machine.” Merriam–Webster's
Washington App. 19CA03 11
Collegiate Dictionary, supra, at 516. “Safety” means “the condition of being safe
from undergoing or causing hurt, injury, or loss.” Id. at 1027. And “equipment” is
defined as “the implements used in an operation or activity: APPARATUS.” Id. at
392. In turn, “device” is “a piece of equipment or a mechanism designed to serve a
special purpose or perform a special function.” Id. at 316. “Protect” means “to
cover or shield from exposure, injury, or destruction: GUARD.” Id. at 935. “Safe”
is defined as “free from harm or risk” and “secure from threat of danger, harm, or
loss.” Id. at 1027. Fickle at ¶ 38.
{¶19} Based on the foregoing, the Fickle court arrived at the following
definition of ‘equipment safety guard’: “... as used in R.C. 2745.01(C), an
‘equipment safety guard’ would be commonly understood to mean a device that is
designed to shield the operator from exposure to or injury by a dangerous aspect of
the equipment.” In Beary, applying the reasoning contained in Fickle, the
appellate court found that the skid steer’s backup alarm was not an equipment
safety guard for purposes of R.C. 2945.01(C). The court reasoned as follows at
¶ 17:
The backup alarm does not shield the operator or bystander from
exposure or injury by a dangerous aspect of the skid steer and serves
only to alert or warn of the skid steer's approach. An operator or
bystander is not shielded from injury by the mere existence of the
Washington App. 19CA03 12
backup alarm. While the backup alarm may alert a bystander before
he enters the zone of danger, it does not keep the bystander away from
this zone of danger and does nothing to stop the skid steer from
operating when an individual gets close to the machine. As noted by
the trial court, if a bystander were directly behind the skid steer while
it was backing up, the alarm would merely keep beeping while the
skid steer ran over the bystander. While the backup alarm may make
the skid steer safer, it does not shield the operator or a bystander from
exposure to or injury by a dangerous aspect of the skid steer. As
noted by the court in Fickle, the standard which the Ohio Supreme
Court adopted in Hewitt, an equipment safety guard is more than a
device that alerts of a condition or makes a machine safer. 6th Dist.
Williams No. WM–10–16, 2011-Ohio-2960, 2011 WL 2436750.
Consequently, the Beary court concluded that the employee failed to
establish a rebuttable presumption of employer intent by the showing of
deliberate removal of an equipment safety guard, pursuant to R.C.
2745.01(C).
{¶20} Appellant also urges us to consider that 2745.01 does not limit
the protection for intentional tort to only “operators”. Appellant asserts that,
in this regard, the Hewitt and Houdek decisions have created confusion.
Washington App. 19CA03 13
Appellant points out that the Hewitt decision, based on its particular facts,
limited the protection of an equipment safety guard to an operator, while in
Houdek, the Court considered the claim of an employee, not operator, who
was struck by a sideloader operated by another employee. Ultimately, the
Houdek decision turned on the issue of whether or not the employer’s
actions were deliberate. Appellant asserts that the Supreme Court’s failure
to clarify whether the definition of “equipment safety guard” is limited to
only operators of equipment has contributed to a split of opinion within the
appellate districts. Citing Pixley v. Pro-Pak Industries, Inc., 142 Ohio St. 3d
293, 2014-Ohio-5460, 28 N.E,2d 1249. Appellant concludes that as an
initial matter, we should find that Appellant, as a non-operator, should be
afforded the protections of RC. 2745.01, and notwithstanding, Appellant as
“operator” of Dimex’s loading dock, should be afforded the protection of the
statute.
{¶21} In Pixley, the Supreme Court reversed the appellate court’s
decision on the narrow finding that the Plaintiff could not establish a
deliberate intent claim, failing to take the opportunity to address whether the
definition of “equipment safety guard” is limited only to operators of
equipment. In the decision, Justice Pfeiffer dissented, writing that the
“protections for workers contained in R.C. 2745.01(C) are in no way limited
Washington App. 19CA03 14
to the operator of a piece of machinery.” While we agree that these cases
demonstrate the language of the statute in this regard remains unsettled, we
find this issue to be moot in light of our finding in agreement with the trial
court’s decision.
{¶22} For the reasons which follow, we find, as did the trial court, that
the reasoning set forth in Beary is persuasive and equally applicable to the
facts presented in Appellant’s case. We find that the forklift backup alarm is
not an “equipment safety guard” since it does not shield the operator, or
really any other person, from exposure or injury. See Beary, supra, at ¶ 17.
{¶23} In this case, Daren Bolen, the plant manager at Dimex, testified
as to the layout of the shipping docks. The loading dock floor was a large
area at Dimex containing six docks. There was an area of floor space and
warehouse area. There was a shipping office about 30 feet away from the
shipping dock. Large trucks pulled up to the docks to be loaded to the
warehouse area.
{¶24} Bolen testified that Dimex employees loaded several trucks
each day. He testified there should not be anybody on the loading docks
where the forklifts are loading and unloading. He acknowledged
Appellant’s job required him to be on the shipping docks frequently. Plant
Washington App. 19CA03 15
manager Bolen also testified Forklift 21, the equipment operated by Sam
Smith at the time of Appellant’s injury, was purchased new in 2013.
{¶25} Appellant testified he was originally employed by Dimex in 2012.
Prior to working at Dimex, Appellant worked for another company, Ames. At
Ames, Appellant began as a forklift operator and warehouse supervisor. He
became certified in the operation of forklifts.
{¶26} At Dimex, Appellant began as a warehouse employee, operating
forklifts. His training consisted of watching a video which instructed on the
operation of forklifts. At the time of Appellant’s injury in 2015, he worked as a
shipping clerk, checking paperwork and operating the forklifts only occasionally.
{¶27} Appellant testified on the accident date, he had assigned Sam
Smith to unload material from an Old Dominion truck. Appellant and Smith
walked onto the dock where the truck was located. Smith was operating an
open-rear forklift. Smith was able to turn and look out the back of the open-
rear forklift, which did not have mirrors. After a brief conversation,
Appellant went to his office for a few minutes.
{¶28} Appellant had left the office and was on his way to get a soda in
the breakroom when he remembered he had forgotten some items that would
be in Smith’s way as he worked. Appellant was aware that Smith was in the
Old Dominion truck on his forklift. Appellant turned around and came back
Washington App. 19CA03 16
across the dock to look for someone to move the items. John Hinton was
coming out of the plant, so Appellant motioned Hinton to pull over and
instructed Hinton to move the items.
{¶29} When Appellant stopped, he was between Smith’s loading dock
and the next one, but not directly at the back of the Old Dominion truck.
Appellant’s back was turned to Smith and he was facing Hinton. Suddenly,
Hinton started yelling and screaming that Sam Smith was coming back
towards him. Appellant testified that he heard neither a horn nor a backup
alarm. Unfortunately, when Smith backed out of the truck with his forklift
he pinned Appellant against Hinton’s forklift. Appellant had only enough
time to move out of the way except for his right leg.
{¶30} Sam Smith, a full-time forklift operator at the time of the
accident, acknowledged the shipping floor could be “tight quarters” at times.
There were no designated lanes for pedestrians or off-limits marks for
forklifts designated on the shipping floor. He testified typically, if a person
was loading or unloading, he or she is more focused on the load. Smith
testified on the accident date, he was assigned to Forklift 21. Smith did a
pre-shift inspection and reported that the backup alarm needed service.
Sometimes the alarm functioned and sometimes it did not.
Washington App. 19CA03 17
{¶31} Smith did not dispute that on the specific dates of December 1,
2, 3, 7, 8, 11, and 14, the pre-service checklist he prepared indicated that the
backup alarm needed service. Smith testified it was not his job to perform
service on the forklift. Smith denied discussing the pre-inspection report of
his forklift with the safety coordinator, Melissa Jarvis. However, he did tell
someone in maintenance about a safety issue with the backup alarm. Smith
also made other employees aware. No one ever told him to take the forklift
out of service.
{¶32} Smith testified prior to backing out of the truck, he looked over
his right shoulder but not his left. He testified he did not use his horn
because he did not see Appellant. Appellant was in Smith’s blind spot.
After the accident, Smith was sent for a drug test and then sent home. He
returned to work for his next shift and resumed duties with Forklift 21.
Smith checked the backup alarm and, on this date, it was functioning.
{¶33} John Hinton’s testimony added little to the facts. Hinton
testified he was also employed by Dimex as a forklift operator. He testified
he did not recall the incident, but he does not dispute Appellant’s testimony
that he started yelling just before the incident.
{¶34} Bolen testified he participated in safety meetings and training,
but was not involved in investigating the incident. Bolen agreed that the
Washington App. 19CA03 18
records produced indicated that as far back as December 1, 2015, the
forklift’s backup alarm had been reported as needing service. Based on the
records, he acknowledged that the forklift was not taken out of service for
repair of the backup alarm. Bolen testified the operator determines whether
there should be removal for service but the maintenance supervisor has the
ultimate responsibility for making that determination.
{¶35} Bolen testified the backup alarm is listed as a safety device on
the maintenance checklist. Bolen understood company policy to be that only
certain things would remove a forklift from service, and a backup alarm was
not one of them. After the accident, the company received an OSHA
citation but it did not relate to the backup alarm. Rather, OSHA cited Dimex
for not having pedestrian aisles and passageways in the shipping area
appropriately marked.
{¶36} As stated above, we find the reasoning set forth in Beary
equally applicable here. In this case, the backup alarm did not shield Smith
or Appellant from exposure or injury by a dangerous aspect of the forklift
and served only to alert or warn of the forklift’s approach. While the backup
alarm may have alerted Appellant while he was in the zone of danger, it
would not have served to actually keep him away from the zone of danger
nor stop the forklift from running simply because Appellant was nearby.
Washington App. 19CA03 19
As noted by the Beary and Fickle courts, the standard which the Supreme
Court of Ohio adopted in Hewitt is that an equipment safety guard is more
than a device that alerts of a condition. Thus, we find the trial court did not
err when it found that the forklift backup alarm is not an “equipment safety
guard” since it did not shield the operator from exposure or injury.
2. Employer intent.
{¶37} The trial court herein also found there was no evidence that Dimex
deliberately removed the backup alarm by not requiring the forklift to be taken out
of service, based on Smith’s notations on the daily pre-service checklist. There is a
rebuttable presumption of employer intent upon a showing of the “deliberate
removal * * * of an equipment safety guard * * * if an injury * * * occurs as a
direct result.” R.C. 2745.01(C). An intent argument was also raised in Beary and
the court again looked to Hewitt, wherein the Supreme Court held that in order to
receive the benefit of the rebuttable presumption that an employer acted with
deliberate intent to cause the plaintiff's injury, a plaintiff must establish that the
employer “makes a deliberate decision to lift, push aside, take off, or otherwise
eliminate that guard.” Hewitt v. L.E. Myers Co., 134 Ohio St. 3d 199, 2012-Ohio-
5317, 981 N.E.2d 795. In Hewitt, the Supreme Court stated that removal may
encompass more than “physically removing a guard from equipment and making it
unavailable, such as bypassing or disabling the guard.” Id.
Washington App. 19CA03 20
{¶38} The Beary court also noted the Supreme Court’s decision in Houdek
v. ThyssenKrupp Materials, N.A., Inc., supra, that, in the absence of deliberate
removal, a plaintiff must establish that the employer acted with specific intent to
injure him. See also Breitenbach, supra, at ¶ 33. In Houdek, the Court rejected the
argument that the intent inquiry was an objective one satisfied by an employer's
mere knowledge of a hazardous condition, as such would be covered by workers'
compensation. See Broyles v. Kasper Machine Co., 6th Cir. No. 12–3464, 2013
WL 827713 (March 7, 2013). Even if an employer places an employee in a
potentially dangerous situation, there must also be evidence that either
management or the supervisor deliberately intended to injure the employee for
R.C. 2745.01(C) to apply. Houdek, 134 Ohio St. 3d 491, 2012-Ohio-5685, 983
N.E.2d 1253. Simply stated, R.C. § 2745.01 requires specific or deliberate intent
to cause injury in order to recover on an employer intentional tort claim. R.C. §
2745.01(C) establishes a rebuttable presumption that the employer intended to
injure the worker if the employer deliberately removes a safety guard. Houdek,
134 Ohio St. 3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 12. Breitenbach, supra,
at ¶ 35.
{¶39} In Beary, the trial court found that assuming the backup alarm was an
equipment safety guard, there was no evidence of deliberate removal of the
apparatus. The injured worker testified that because the foreman knew the backup
Washington App. 19CA03 21
alarm was not functional, therefore Beary was placed at risk. Beary asserted that
the evidence that the backup alarm was disconnected and did not work for three to
six months was enough to establish the rebuttable presumption of intent. As
specifically stated in Houdek, the Ohio Supreme Court rejected the argument that
the intent inquiry was an objective one satisfied by an employer's mere knowledge
of a hazardous condition. Accordingly, the appellate court found that evidence that
the alarm was disconnected and did not work was not enough to establish the
rebuttable presumption without evidence of deliberate intent.
{¶40} Furthermore, the appellate court found that even if they had found that
the backup alarm is an equipment safety guard, there was no evidence the
employer deliberately removed it. Beary also testified that he didn't “think [the
foreman’s] intentions were to deliberately intend to injure me per se.” And Beary
testified that he was not aware of any evidence that suggested before the day of the
accident the foreman planned for him to be injured. The appellate court also
concluded that after reviewing the evidence, there was no indication that the
employer made a deliberate decision to “lift, push aside, take off, or otherwise
eliminate the backup alarm.”
{¶41} In Appellant’s case, the trial court found there was no evidence that
Dimex deliberately removed the backup alarm by not requiring the forklift to be
taken out of service when the operator noted that it was not working on routine
Washington App. 19CA03 22
daily inspection reports. Based on the above case law, which provides that the
intent inquiry is not satisfied by an employer’s mere knowledge of a hazardous
condition, we find the undisputed evidence that the forklift’s backup alarm had not
been functioning several days prior to Appellant’s injury and including the injury
date, does not suffice to establish the rebuttable presumption without deliberate
intent.
{¶42} Finally, similar to the reasoning we have applied from Beary, this
record is simply devoid of any evidence that Dimex or its representatives intended
to injure Appellant. The trial court observed that there was no evidence “that
Dimex made a deliberate decision to ‘remove’ the backup alarm by not requiring
the forklift to be taken out of service when Smith noted that it was not working on
the routine daily inspection report.” We have engaged in a de novo review of this
record and find no evidence to the contrary.
{¶43} For the foregoing reasons, we find no merit to the arguments raised in
Appellant’s sole assignment of error. Accordingly, we overrule the assignment of
error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Washington App. 19CA03 23
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date
of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
McFarland, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ________________________________
Jason Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.