Harris v. Sunoco, Inc.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0505n.06
Filed: June 14, 2005
No. 04-3634
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LISA OLLICER HARRIS, et al.,
Plaintiffs-Appellants,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE NORTHERN
SUNOCO, INC., et al., DISTRICT OF OHIO
Defendants-Appellees.
/
Before: MARTIN and ROGERS, Circuit Judges; McKINLEY, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Lisa Ollicer Harris appeals the district court’s
grant of summary judgment to her employer, Sunoco, Inc., in this employer intentional-tort case.
For the following reasons, we AFFIRM.
I.
Harris began working for the Sun Oil refinery, operated by Sunoco, near Toledo, Ohio, in
April 1980. On January 19, 2000, at approximately 8:00 a.m., a fire erupted at one of the plants
located at the refinery. Harris, who worked in the Transfer and Shipping Department, was driving
on a road behind the plant when she noticed the fire. Harris notified the refinery dispatcher of the
blaze. Although company policy allegedly required Harris to return to the Transfer and Shipping
*
The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western
District of Kentucky, sitting by designation.
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Department in the event of a fire, Harris instead stopped her truck and helped another employee
attempting to attach a hose to a hydrant. She apparently did so without wearing proper protective
equipment, which is also required under the company’s fire procedures. While Harris was exiting
her vehicle, butane vapors, which had escaped from a sewer system, vented through a manhole
cover, causing a secondary explosion of fire. Harris was engulfed in fire and suffered second- and
third-degree burns, and has since been unable to work.
On January 10, 2002, Harris and her children filed a complaint in Ohio state court alleging
that they were injured due to an “Ohio Workplace Injury Employer Tort.” The case was removed
to the Northern District of Ohio on February 8, 2002. On June 12, 2003, Sunoco filed a motion for
summary judgment. The district court granted the motion on April 8, 2004, finding that Harris
could not produce any evidence from which a jury could find, as required under the applicable Ohio
law, that Sunoco acted to require the employee to perform the dangerous task. Harris has appealed
that judgment to this Court, claiming that the district court erred in granting summary judgment to
Sunoco.
II.
This Court reviews a grant of summary judgment de novo. Sherwin-Williams Co. v. United
States, 403 F.3d 793, 795 (6th Cir. 2005). Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
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.” Fed. R. Civ. P. 56(c). In considering whether a genuine issue of
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material fact exists, we draw all reasonable inferences in favor of the nonmoving party. Mitchell
v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004).
The only issue presented in this appeal is whether the district court was correct to grant
summary judgment to Sunoco on Harris’s intentional-tort claim. Although the Ohio Workers’
Compensation Act, Ohio Rev. Code § 4123.01 et seq., generally provides the exclusive remedies
for employees injured at the workplace, an injured employee may, in some cases, also recover
under an intentional-tort theory of liability under Ohio law. The Ohio Supreme Court originally
set forth the intentional-tort test in Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489, 491
(Ohio 1988), and subsequently modified that test in Fyffe v. Jeno’s, Inc., 570 N.E.2d 1108, 1112
(Ohio 1991). Under the Fyffe standard, which applies to the accident in this case,1 Harris is
required to establish the following to present an intentional-tort claim:
(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 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.
1
After the Ohio Supreme Court decided Fyffe, the Ohio General Assembly enacted Ohio Rev.
Code § 2745.01 (effective November 1, 1995), in an attempt to overrule it and other intentional-tort
cases and replace the standards articulated therein with a more heightened plaintiff burden.
However, in Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107, 1114 (Ohio 1999), the Ohio Supreme
Court struck down section 2745.01 as “unconstitutional in its entirety.” This decision thus reinstated
the applicability of the standard articulated in Fyffe. While it appears that the Ohio General
Assembly has again enacted another version of section 2745.01 (effective April 7, 2005), that statute
was not effective at the time the injury occurred in this case. Thus, we conclude that the Fyffe
standard applies.
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Id. at 1109 (syllabus). “To establish an intentional tort of an employer, proof beyond that required
to prove negligence and beyond that to prove recklessness must be established.” Id. at 1110
(syllabus). It must be shown that “the employer kn[ew] that injuries to employees [were] certain or
substantially certain to result from the process, procedure or condition.” Id. (syllabus).
The district court apparently considered Harris’s theory of recovery to be that the “dangerous
task” that led to her injury was being near the scene of the fire and helping to attach the hose to the
hydrant. The district court granted summary judgment to Sunoco on this theory because it found
that Harris could not establish the third prong of the Fyffe test—namely, that Sunoco required Harris
to perform the dangerous task. To the extent that Harris’s theory of recovery is based on her work
near the scene of the fire, we agree with the district court that Harris is unable to show that she was
forced or required to engage in that activity. First, Harris volunteered, rather then being instructed,
to go near the scene of the fire, while alternative (and less dangerous) routes and options were
available. See, e.g., Shelton v. U.S. Steel Corp., 710 F. Supp. 206, 211 (S.D. Ohio 1989) (holding
that a worker who volunteered to assist in the work that led to his injury could not demonstrate an
intentional tort on the part of his employer), aff’d, 892 F.2d 80 (6th Cir. 1989) (unpublished table
decision); Robinson v. Icarus Indus. Constructing & Painting Co., 762 N.E.2d 463, 468-69 (Ohio
Ct. App. 2001) (holding that an employee could not establish Fyffe’s third prong where he “placed
himself in danger by choice and not as a requirement of his employment”). Moreover, the record
is devoid of any evidence suggesting that Sunoco, through its actions and policies, implicitly
required Harris to engage in this task. Cf. Hannah v. Dayton Power & Light Co., 696 N.E.2d 1044,
1047 (Ohio 1998) (holding that in order to overcome summary judgment, an employee can satisfy
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the third prong of Fyffe by presenting evidence that raises an inference that the employer implicitly
required the employee to engage in the dangerous task).
Second, summary judgment is also appropriate under this theory because Harris violated
company policy by stopping and assisting at the scene in this case without wearing proper protective
equipment. According to company policy relating to fires, Harris was apparently required to wear
protective gear at a fire scene, to prevent precisely the sort of injuries that she sustained. This
violation of company policy was sufficient to grant summary judgment for Sunoco as to this theory
of recovery. See, e.g., Goodin v. Columbia Gas of Ohio, Inc., 750 N.E.2d 1122, 1136-40 (Ohio Ct.
App. 2000) (finding employer not liable for intentional tort where employee engaged in dangerous
act without using required safety equipment).
To the extent that Harris claims that the “dangerous task” that led to her injury was merely
being exposed to a refinery-wide “zone-of-danger” because of dangerous procedures used at the
refinery, we reject this theory under the second prong of the Fyffe test. Under this requirement,
Harris must show “knowledge by the employer that if the employee is subjected by his employment
to such dangerous process, procedure, instrumentality or condition, then harm to the employee will
be a substantial certainty.” Fyffe, 570 N.E.2d at 1109 (syllabus). In this context, Ohio tort law
requires more than “mere knowledge and appreciation of a risk.” Id. at 1110. As the Fyffe court
stated:
To establish an intentional tort of an employer, proof beyond that required to prove
negligence and beyond that to prove recklessness must be established. Where the
employer acts despite his knowledge of some risk, his conduct may be negligence.
As the probability increases that particular consequences may follow, then the
employer’s conduct may be characterized as recklessness. As the probability that the
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consequences will follow further increases, and the employer knows that injuries to
employees are certain or substantially certain to result from the process, procedure or
condition and he still proceeds, he is treated by the law as if he had in fact desired to
produce the result. However, the mere knowledge and appreciation of a
risk—something short of substantial certainty—is not intent.
Id. (citations omitted). Ohio courts have consistently required plaintiffs to shoulder the “heavy
burden” of demonstrating knowledge by the employer that harm would be a substantial certainty.
Young v. Indus. Molded Plastics, Inc., 827 N.E.2d 852, 858 (Ohio Ct. App. 2005) (holding that
employee could not establish “substantial certainty” for employer intentional-tort claim where
employee was injured by a machine press).
In the present case, we are unconvinced that Sunoco knew that harm to Harris was a
substantial certainty because of the allegedly dangerous procedures used at the refinery. Our review
of the record revealed insufficient evidence to support this intentional-tort claim. Furthermore,
absence of prior similar accidents strongly suggests a lack of employer knowledge in intentional-tort
claims under Ohio law, see, e.g., Van Fossen, 522 N.E.2d at 505, and Harris has pointed to no
evidence of any previous fires similar to the one that occurred here. For these reasons, we hold that
Fyffe’s second prong is not satisfied under Harris’s zone-of-danger theory.
III.
Because we are convinced that Harris has presented no genuine issue of material fact as to
her intentional-tort claim, we AFFIRM the district court’s grant of summary judgment to Sunoco.