Smith v. General Motors Corp. General Motors Global Headquarters

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0177n.06
Filed: March 8, 2006
No. 05-3498
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LINDA SMITH; )
)
Plaintiff-Appellant, )
)
GREGORY SMITH, )
) ON APPEAL FROM THE
Plaintiff, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
GENERAL MOTORS CORPORATION GENERAL ) MEMORANDUM
MOTORS GLOBAL HEADQUARTERS and ) OPINION
POWERTRAIN DIVISION MORAINE ENGINE )
PLANT; )
)
Defendants-Appellees. )
)
)
CHERYL McCURDY as PLANT MANAGER )
GENERAL MOTORS CORPORATION
POWERTRAIN DIVISION MORAINE ENGINE
PLANT,
Defendant.
BEFORE: MOORE and McKEAGUE, Circuit Judges; POLSTER, District Judge.*
*
The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 05-3498
Smith v. General Motors Corp. et al
McKEAGUE, Circuit Judge. Plaintiff-appellant Linda Smith appeals the district court’s grant of
summary judgment in favor of defendant-appellee, General Motors Corporation. Smith filed this
action against General Motors to recover for injuries sustained during her employment at the
Moraine Engine Plant in Moraine, Ohio. Smith asserts that she is entitled to recovery under the
intentional tort exception to the Ohio Workers’ Compensation Act. The district court granted
defendant’s motion for summary judgment, finding that Smith had not presented sufficient evidence
to raise a genuine issue of material fact concerning whether General Motors knew with “substantial
certainty” that the injury she sustained was likely to occur. For the following reasons, we affirm the
district court’s decision.
I. BACKGROUND
A. Facts
This case arises from injuries Linda Smith (“Smith”) incurred on February 9, 2000, while
working for General Motors Corporation Powertrain Division (“GM”) at the Moraine Engine Plant
located in Moraine, Ohio. The facts are not in dispute. Smith began her employment with GM in
1993, initially working on an assembly line. After six years, Smith began working as a job-setter.
She performed this job for one and one-half years prior to her injury. For the two months preceding
her accident, Smith worked on Operation 40, an automated assembly line composed of 14 stations
of machines. Some of these machines were multi-spindle drilling machines, designed to drill holes
in the top of engine heads.
As a job-setter, Smith was expected to perform maintenance on Operation 40. On the day
of her injury, Smith was wearing Tyvek coveralls and had her hair pulled back in a ponytail, as was
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her habit. GM provided the coveralls for workers, to help keep their personal clothing clean. GM
did not require the employees to wear them. The coveralls have long, loose fitting sleeves and come
in three sizes; small, medium, and large.
On February 9, 2000, a bushing broke on one of the spindle drills in Operation 40. Because
this was not an unusual occurrence, job-setters had a normal procedure to follow in order to repair
the bushing. Initially, the job-setter would attempt to repair the broken bushing herself. If that was
unsuccessful, the job-setter would call a Skilled Trades employee for assistance. Smith was able
to locate the broken bushing, but realized that she would be unable to repair it herself. She
summoned Jason Caldwell, a Skilled Trades employee for assistance.
There are two methods used to shut off Operation 40. The first is to use the lockout/tagout
procedure, which completely shuts down the Operation. The second is to turn the shutoff switch,
which would not shut off all the power to the machine, allowing the spindle drills to continue
spinning. Operation 40 was surrounded by a six-foot high metal barrier with an entry gate. An
employee could walk through this entry without having the machines turned off.
Prior to performing the lockout/tagout procedure, both Smith and Caldwell went inside the
gate so that Smith could show him the broken bushing. However, before repairing the bushing, they
shut off Operation 40 by using the lockout/tagout procedure. After the bushing was repaired, Smith
restarted Operation 40. Although the spindle drills began to turn normally, the engine heads did not
move down the line to be drilled, indicating that something was still not right with the Operation.
With Caldwell looking on, Smith went inside the gate for a closer look at station 14, because the
view of this area was obliterated by the barrier. The spindles continued to spin, because it was
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necessary for the machine to be on in order to determine the location of the jam. Once inside the
gate, Smith used her flashlight to illuminate the machine in an effort to locate the problem. Not
seeing the problem, she turned to walk away. However, a spindle drill which continued to turn
became entangled with the sleeve of her Tyvek coveralls. Thereafter, her ponytail also became
entangled in a turning spindle drill. As a result, Smith suffered severe injuries, including having her
scalp removed from her head.
B. Procedural Background
This action was originally filed in Montgomery Court of Common Pleas in December of
2001. The case was removed by the defendant to Federal Court, pursuant to 28 U.S.C. § 1332, in
January of 2002. The defendant filed a motion for summary judgment on May 28, 2003.
Subsequently, the plaintiff was given oral notice that the court was planning on granting defendant’s
motion for summary judgment. Based on this information, the plaintiff filed a motion for
reconsideration on September 25, 2003. However, the district court did not grant defendant’s
motion for summary judgment until March 22, 2004. The plaintiff then filed a renewed motion for
reconsideration on April 26, 2004. The district court issued a decision overruling plaintiff’s renewed
motion for reconsideration on March 24, 2005. This appeal followed.
II. JURISDICTION
The district court exercised subject matter jurisdiction under 28 U.S.C. § 1332, because the
proper parties are citizens of different states and the amount in controversy exceeds $75,000.1 This
1
The district court found that plaintiffs fraudulently joined Cheryl McCurdy as Plant
Manager in order to spoil diversity. McCurdy was not a party to the original complaint. Plaintiffs
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court has jurisdiction pursuant to 28 U.S.C. § 1291, because this is an appeal of the district court’s
March 24, 2005, order denying plaintiff’s motion for reconsideration, which order left unchanged
the final order granting defendant’s motion for summary judgment entered on March 22, 2004.
This court reviews de-novo a district court’s grant of summary judgment. Johnson v.
Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment is proper “if 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
a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Johnson, 398 F.3d at 873. When
deciding a motion for summary judgment, the court must view the evidence and draw all reasonable
inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Any direct evidence offered by the plaintiff in response to a summary
judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004).
The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original).
III. ANALYSIS
A. Issues on Appeal
have not appealed this finding, and McCurdy is not a party to this appeal. See Smith v. GM, 02-CV-
00029-WHR at 2, n.2.
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The parties advance three issues on appeal. First, Smith avers that the district court erred
in finding that there were no issues of material fact as to whether GM knew with “substantial
certainty” that Smith’s injuries were likely to occur, as is required for a finding of employer
intentional tort. Second, Smith also claims that the court erred in not construing the evidence
presented in the light most favorable to her, the non-movant, as required by Fed. R. Civ. P. 56.
Third, GM advances an alternate theory of affirmance; stating that GM never required plaintiff to
perform any task with the knowledge that injury was substantially certain to occur.
B. Ohio Law Governing Employer Intentional Tort
A federal court exercising jurisdiction pursuant to 28 U.S.C. § 1332 must apply the
substantive law of the forum state. See U.S. v. Jandro, 167 F.3d 309, 313 (6th Cir. 1999). In Ohio,
employees injured in the course of their employment are usually limited to the remedial measures
afforded by the Ohio Workers’s Compensation Act. See O. Const. II § 35, see also OHIO REV. CODE
ANN. § 4123 et seq. There are certain instances when an employee may seek redress for an injury
outside of the Act. An injury caused by the intentional tort of the employer is such an event. See
Blankenship v. Cincinnati Milacron Chemicals, Inc., 433 N.E.2d 572, 576 (Ohio 1982) (explaining
that an employee is not precluded from pursuing common law remedies for an intentional tort
committed by his employer). In Fyffe v. Jeno’s, 570 N.E.2d 1108, 1112 (Ohio 1991), the Supreme
Court of Ohio set out the test used to determine whether an employer has committed an intentional
tort. In such a case, the plaintiff must prove:
1) knowledge by the employer of the existence of a dangerous process, procedure,
instrumentality or condition within its business operation;
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2) knowledge by the employer that if the employee is subjected by his employment
to such a 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.
Id. at 1112.2 According to Fyffe, a plaintiff must offer proof beyond that required for negligence,
or recklessness. Id. In the absence of direct evidence of intent, a plaintiff may prove such a claim
by inferred intent. Id.Ohio law creates a harsh test for establishing employer liability for an intentional tort. See
Goodwin v. Karlshamns U.S.A., Inc., 619 N.E.2d 508, 512 (Ohio App. 1993) (stating “a reckless tort
is not sufficient to allow recovery against one’s employer”). In Jandro v. Ohio Edison Co., the Sixth
Circuit stated “it must be shown that the employer ‘(1) specifically desired to injure the employee;
or (2) knew that injury to an employee was certain or substantially certain to result from the
employers act, and despite this knowledge, still proceeded.’” 167 F.3d 309, 313 (6th Cir. 1999)
(quoting Mitchell v. Lawson Milk Co., 532 N.E.2d 753, 756 (Ohio 1988)). It is not enough that harm
was likely to occur, or that there was a high risk that it would occur. Jandro, 167 F.3d at 313. Acts
of an employer that have a high risk of harm are most often reckless acts, but could under certain
2
The Ohio legislature passed R.C. 2745.01, effective October 20, 1993. This legislation was
intended to revise the requisite elements and standards of an employer intentional tort. However,
the statute was found to be unconstitutional, because it imposed excessive standards and a
heightened burden of proof for plaintiffs seeking a remedy for an employer intentional tort. See
Johnson v. B.P. Chemicals, Inc., 707 N.E.2d 1107 (Ohio 1999) ("Because R.C. 2745.01 imposes
excessive standards (deliberate and intentional act), with a heightened burden of proof (clear and
convincing evidence), it is clearly not a "law that furthers the' . . . comfort, heath, safety, and general
welfare of all employees.'" Id. at 1114 (citation omitted). Since that time, the Ohio legislature
repealed R.C. 2745.01 and passed H.B. 498, revising R.C. 2745.01 effective April 4, 2005. The
revised statute is less stringent than the former. Because the injury in this case occurred in the year
2000, there are no controlling statutes, and Fyffe and its progeny control our determination.
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circumstances “equate to one that is substantially certain to result in harm to the employee, and
reasonably raise a justiciable issue of an intentional tort.” Fyffe, 570 N.E.2d at 1111-12. The
plaintiff must show, by a preponderance of the evidence, that the employer had “actual knowledge
of the exact dangers which ultimately caused” injury. Sanek v. Duracote Corp., 539 N.E.2d 1114,
1116-17 (Ohio 1989) (citation omitted).
C. Smith’s Issues on Appeal
Smith asserts that the district court erred in finding that there were no issues of material fact
that GM did not know with “substantial certainty” that Smith’s injuries were likely to occur, and
the court erred in not construing the evidence presented in the light most favorable to her, the non-
movant, as required by Fed. R. Civ. P. 56. Because our analysis of the defendant’s motion for
summary judgment requires de novo review, we must necessarily construe the record in the light
most favorable to Smith. See Matsushita Elec. Indus.Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). Therefore, the analyses of these two issues are conflated.
Smith maintains that GM was substantially certain that her injury would occur because of
her working conditions. She asserts that the barrier surrounding the spindle drills of Operation 40
was a "guard", and that GM required her to "circumvent" this guard in the performance of her duties
as a job-setter. She states that because GM provided loose, Tyvek coveralls to their employees, and
allowed employees working near rotating machinery to wear their hair in ponytails in contravention
to GM’s own safety policies, GM was substantially certain that the injury she suffered was likely
to occur. In addition, the lack of ambient lighting in the area of the spindle drills required Smith to
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use a flashlight to investigate a problem with the transfer bar, and this forced her to be in close
proximity to the operating and dangerous machinery.
Smith further asserts that GM was substantially certain that her injury would occur because
a previous injury had occurred in 1993 to Randy Petit, another GM employee working at the
Moraine Engine Plant. We consider these factors in turn, bearing in mind the stringent standard
required for a finding of substantial certainty of injury in employer intentional tort cases.
1) The barriers surrounding Operation 40's rotating spindles should be considered
a "guard", and GM required circumvention of the "guard" in the performance of Smith's job
duties.
Smith states that the mesh barriers surrounding Operation 40 should be construed as a guard,
in keeping with the definition of a “guard” by the Industrial Commission of Ohio. The commission
defines a guard as "the covering, fencing, railing or enclosure, which shields an object from
accidental contact (see 'safety guard').” Ohio Admin. Code 4123:1-5-01 (B) (69). Smith asserts that
GM management agreed that the mesh fencing with gate was considered a guard, with the gate
portion being identified as a "swing guard". She states that because the mesh fencing with a swing
guard was a "guard", GM’s requirement that she "circumvent" the guard in order to perform her
tasks as a job-setter created an issue of material fact as to whether GM committed an employer
intentional tort.
The district court correctly found that the evidence proffered by Smith concerning the
"guard" failed to raise a genuine issue of material fact on the second prong of the Fyffe test. The
court stated"[t]he essential fact supporting the conclusion that there was a genuine issue of material
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fact on the substantial certainty prong in Fyffe was that the employer had removed a safety guard
which permitted the plaintiff to be injured. Herein, there is no suggestion that the Defendants
removed a safety guard from operation 40 or did anything remotely similar to the actions of the
employer in Fyffe." Smith v. GM, et al , No.02 -CV-00029-WHR at 13, n.10 (hereinafter “slip
op.”).
Smith relies on Fyffe to assert that the "removal" of a safety guard by an employer creates
an issue of material fact, because a jury could conclude that an injury was substantially certain to
occur once the guard was removed, and the intent required for an employer intentional tort could
be inferred from such an action. In Fyffe, a Plexiglas safety guard designed to prevent individuals
from getting their hands caught in a moving conveyer belt was routinely removed prior to cleaning
the conveyer. Fyffe, 570 N.E.2d at 1113. Although the machinery was not supposed to run while
the guard was removed for cleaning, Fyffe was taught by his supervisor to clean with the conveyer
moving, because it expedited the cleaning process. Id. at 1114. It was during this cleaning process
that Fyffe's arm was pulled into the conveyer and he suffered severe injuries. Id. at 1110. The court
found that the removal of the Plexiglas safety guard and the employer's instruction that the conveyer
should be run during the cleaning process raised an issue of material fact as to whether the employer
committed an intentional tort. Id. at 1113-14.3
3
Smith also relies on the unpublished case, Jones v. Bryan Canning Co., No. WM-97-4466,
1998 Ohio App LEXIS 708 (Ohio Ct. App. Feb. 27, 1998) for the proposition that the removal of
a safety guard raises an issue of material fact as to whether an employer has committed an
intentional tort. In Jones, the plaintiff was taught to clean an auger with towels while the auger was
moving. Jones at *2. "In order to be able to insert the rolled up towels, appellant was told to
remove the cover on a ‘nip point’,- an area usually enclosed because of its potential for injury to
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Smith compares the entry into the mesh fencing surrounding Operation 40 through the swing
guards to the circumvention of the guards in both Fyffe and Jones. "Appellee subjected Linda Smith
and her co-workers to the dangers of the revolving spindles by requiring them to circumvent the
safety guard and troubleshoot within close proximity of same." (Appellant Br. 27) Yet, the
deposition testimony of Peter Buczek, a GM safety supervisor describes the metal fencing as an
“awareness barrier.” When asked to define an awareness barrier, Buczek stated: "[a] practical
definition is it was a guard that would prevent somebody from going into the hazard area
inadvertently. And to access the area to do troubleshooting they would have to open the device,
making them aware that they were entering an area that could be hazardous if it was operating."
(Buczek Dep. JA 557) Smith herself stated that entry into the fenced area was sometimes necessary
in order to view the transfer bar and see where it was jammed. (Smith Dep. JA 683) "The reason
it was necessary for power to the equipment to remain on while troubleshooting a jam up was
because if the power was not on to the transfer bars the fingers that held the engine head would drift
down and no longer be in contact, rendering it impossible to see where the jam up existed."
(Appellant Br. 7)
Unlike the cleaning procedures in both Fyffe and Jones, entry through the barrier was the
only way a problem involving the transfer bar could be diagnosed. (Appellee Br. 4-10) The
persons working around the auger. A warning label, which originally illustrated that the auger
should not be engaged while the nip point cover was off had been partially obliterated due to wear
and tear and cleaning of the machine . . . ." Id. Further, the management acknowledged that it had
never advised the staff about the dangers of the towel cleaning method, or circumventing the "nip
points". Id. at 3.
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procedure involved visualizing the machinery from a distance of about two feet. At no time did
anyone instruct Smith to insert any part of her body into the rotating spindles or moving machinery,
in contrast to Fyffe or Jones. Smith readily admitted that she understood the dangers of being in
proximity to moving pieces of machinery, that it was “common sense.” (Smith Dep. JA 683)
Further, Smith attended regular safety training at GM. (Smith Dep. JA 671-80)
Even assuming the mesh fencing with the "swing guard" was a guard within the terms of the
Ohio Administrative Code, there is no evidence in the record that the guard was removed by GM
management, nor did GM management instruct the employees to circumvent the guard. In fact, GM
management routinely entered the area through the “swing guard” to visualize the machinery.
(Smith Dep. JA 683) The district court properly noted that "the defendant's affirmative act must be
more than merely passively condoning practices and procedures, which, in hindsight, subject
employees to a greater risk of harm. That may be negligence or even recklessness, but it does not
constitute the inferred intent which is required by Fyffe." Smith, slip op. at 14.
2) GM provided loose fitting long sleeved Tyvek coveralls and allowed women to work
around rotating machinery with their hair in ponytails in direct contravention to GM's own safety
requirements. In addition, the lack of adequate ambient lighting in the work area required Smith
to use a flashlight and get in closer proximity to the dangerous equipment.
Smith acknowledged that the Tyvek coveralls provided by GM for the employees were
intended to protect the workers personal garments, and GM did not require that employees wear the
garments. (Smith Dep. JA 676) The employees themselves could choose the appropriate size from
small, medium, or large. Id. at 678. Smith personally selected a size large coverall to wear. Id.
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She argues, however, that the size of the garment she chose was immaterial, because the danger
arose because of the loose fitting long sleeves. (Appellant Final Br. 19) She points out that wearing
loose garments and long sleeves is in direct contravention to the GM safety rules, which state: “the
wearing of loose clothing, long sleeves, neckties, bracelets, necklaces, wristwatches, or similar
jewelry is not permitted while working around revolving machinery.” (GM Powertrain Assembly
Plant general safety rules and practices; JA 513-514) The rules also state “[w]here there is a danger
of long hair being caught in the moving machinery or equipment, caps or hair nets must be worn or
hair must be tied back.” (JA 517) Smith asserts that because GM knew she was required to work
near rotating machinery in a poorly lit area, wearing loose fitting coveralls with her hair in a
ponytail, they knew with substantial certainty that the injury she had was likely to occur.
The district court correctly found that these working conditions did not raise an issue of
material fact as to whether GM knew to a substantial certainty that Smith’s injury would occur.
Under Ohio law, GM’s failure to prohibit its employees from wearing loose fitting coveralls and
ponytails while working in decreased ambient lighting is not egregious enough to find that GM had
the inferred intent required for an intentional tort. In Jandro v. Ohio Edison, the court stated that
evidence beyond that which is required for both negligence and recklessness is required to establish
an intentional tort by an employer. 167 F.3d 309, 313 (6th Cir. 1999) (citing Mitchell v. Lawson Milk
Co., 532 N.E.2d 753, 756 (Ohio 1988)). In Mitchell, the Ohio Supreme Court found that “mere
knowledge of a risk falls short of substantial certainty and does not by itself establish intent.” Id. at
753. The court stated:
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When the employer acts despite the knowledge of some risk, the employer's conduct
may be negligent. When the risk is great and the probability increases that certain
consequences may follow, the employer's conduct may be reckless. As the
probability that certain consequences will follow further increases and the employer
knows that injury to employees is certain, or substantially certain, to result from his
act, and he still proceeds, he is treated by the law as if he had in fact desired to
produce the result.
Id. at 755, quoting Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489 (Ohio 1988) (paragraph
six of the syllabus), and Kunkler v. Goodyear Tire & Rubber Co., 522 N.E.2d 477, 481 (Ohio 1988)
In Jandro,, an electrical lineman was electrocuted while engaging in a dangerous procedure
known as “sliding the ground”. 167 F.3d at 312. This procedure was sometimes used by
experienced lineman, but was never supposed to be done without a special “hot-line” tool, according
to the employer’s safety guidelines. Id. While the court found that management was at least
constructively aware of several safety violations, including the failure to hold a required safety
meeting prior to beginning the job, the use of a lift machine with controls that were not working, and
inadequately trained crew members, the court found that the management could not be substantially
certain that Jandro’s death would have occurred. In so deciding, the court stated :
The district court was correct when it wrote that "the intentional tort exception to the
Workers' Compensation Act . . . [encompasses] a particular scenario under Fyffe: one
in which the employer is virtually certain that harm is about to occur but chooses to
'look the other way' in the interest of continuing the job. One might describe this
scenario as one in which the employer takes a stance of 'active ignorance' or even
'willful blindness' in the face of an assured danger.
Id. at 316 (6th Cir. 1999). Based on Jandro, the mere knowledge of a safety violation or a
dangerous condition is not enough to support a finding of an employer intentional tort. “Even if
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[defendant] knew of and appreciated the risks . . . the violations involved were not substantially
certain to cause an accident.” Jandro, 167 F.3d at 315.
Further in Sanek v. Duracote Corp., the Ohio Supreme Court stated;
There are many acts within the business or manufacturing process which involve the
existence of dangers, where management fails to take corrective action, institute
safety measures, or properly warn the employees of the risks involved. Such conduct
may be characterized as gross negligence or wantonness on the part of the employer.
However, in view of the overall purposes of our Workers’Compensation Act, such
conduct should not be classified as an ‘intentional tort’, and therefore an exception,
under Blankenship or Jones to the exclusivity of the Act.
539 N.E.2d 1114, 1117 (Ohio 1989) (quoting Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d
489, 504-05 (Ohio, 1988)). Thus, even if GM knew that wearing coveralls and ponytails was
contrary to their safety policies, and the ambient lighting required the use of a flashlight to visualize
machinery, we agree with the district court that GM was not substantially certain that the injury
Smith suffered was going to occur.4
3) The trial court failed to acknowledge the presence of a prior similar incident, and
failed to construe the facts of the prior incident in the light most favorable to Smith.
According to Smith,“ a prior incident did in fact occur when another employee also became
entangled. The prior incident involved loose clothing being caught in the revolving spindles of the
spindle machine when the employee circumvented a guard to perform repair work.” (Appellant Br.
4
An employer’s failure to follow documented safety procedures does not necessarily infer
a finding of a substantial certainty of injury. See Edsall v. Hose Master, Inc., 1997 Ohio App.
LEXIS 5697 (Ohio Ct. App. 1997) (Despite the employer instructing the employee to make
adjustments to a machine while it was still running, in contravention of required safety procedures,
the court found no substantial certainty of injury when the employee’s hand slipped into the
operating machine and she was injured.).
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20) Randy Pettit, an employee at the Moraine plant was injured in 1993, seven years prior to the
injury sustained by Smith. Pettit was working on a multi-spindle drilling machine on Operation 20,
an operation that bored holes in bearing caps. (Pettit Dep. JA 644) Pettit testified, “I reached in
to move a coolant line and the drills caught around my stomach, around my coveralls, around my
stomach and it just wound up.” Id. Pettit suffered injuries requiring him to be off of work for
approximately 10 weeks. Id. Smith relies on this accident to show that GM had knowledge of a
prior incident, and therefore, GM knew to a substantial certainty that her injury would occur.
The district court found that Pettit’s injury was caused by his reaching into the machine to
move a coolant line, which caused his coveralls to be caught in the drills. See Smith, slip op. at 16.
We agree. Pettit was not trying to visualize a transfer bar in darkened surroundings when the loose
sleeve of his coverall was caught in the machine, as was the case with Smith. When asked if his
coveralls were loose or hanging, as Smith avers, he replied, “No. Not really. I mean I just got too
close to the drill.” (Pettit Dep. JA 644)
To establish that an employer knew with substantial certainty that an injury would occur,
“[t]he plaintiff has the burden of proving by a preponderance of the evidence that the employer had
“actual knowledge of the exact dangers which ultimately caused injury.” Sanek, 539 N.E.2d at
1117. Even viewing Pettit’s injury in the light most favorable to Smith, it simply does not support
a finding that Pettit’s injury gave GM prior notice of the exact dangers that Smith claims caused her
injuries. In fact, loose coveralls, the lack of adequate ambient lighting, and wearing a ponytail had
nothing to do with Mr. Pettit’s injuries, according to his own deposition testimony. Therefore, the
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district court was correct in finding that Pettit’s injury was not a prior incident that would cause GM
to have substantial certainty that Smith’s injury would occur.
D. GM’s Issue on Appeal
Having found that the district court correctly decided that there are no issues of material fact
as to whether GM knew with substantial certainty that Smith would be injured under the second
prong of Fyffe, it is unnecessary to evaluate GM’s claim of an alternate ground for affirmance.
IV. CONCLUSION
For the aforementioned reasons, the opinion of the district court granting summary judgment
to the defendant, GM, is AFFIRMED.
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