Fleming v. Aas Service, Inc.

{¶ 79} I respectfully dissent from the majority opinion as it relates to application of theFyffe test but concur in the balance of the opinion.

{¶ 80} The record suggests that appellant William A. Fleming was awarded workers' compensation benefits for this injury. The facts of this matter are similar to those inState ex rel. Gross v. Indus. Comm.,115 Ohio St.3d 249, 2007-Ohio-4916, 874 N.E.2d 1162. In Gross, an employee at a KFC restaurant injured himself when he put water in a deep fryer and heated the fryer, in contravention of safety rules and verbal warnings. Id. at ¶ 4. In recognizing the "no-fault nature" of Ohio's Workers' Compensation Act, the Supreme Court of Ohio reconsidered its prior holding and reinstated the injured worker's benefits. Id. at ¶ 22-26. In the instant matter, Fleming disobeyed specific instructions not to chase an object down the roof. However, due to Ohio's "no-fault" workers' compensation scheme, he was entitled to benefits because he was injured in the course of his employment. Id.

{¶ 81} In assessing intentional torts, the Supreme Court of Ohio has held that "[t]o establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established." Fyffe v. Jeno's, Inc. (1991),59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph two of the syllabus. In this matter, it is questionable whether the employer's actions even rise to the level of negligence. We cannot forget the need to establish the element of proximate cause. The old test ofPalsgraf v. Long Island RR. Co. is certainly applicable here — "[t]he risk reasonably to be perceived defines the duty to be obeyed." Palsgraf,248 N.Y. 339, 344, 162 N.E. 99, 100. The threshold question is "how did the injury occur?" It did not occur because Fleming's foot slipped and he slid down a steep slope. It did not occur because Fleming was concentrating on his work and inadvertently tripped on something on the roof. It did not occur because Fleming misjudged his location on the roof and fell. Those instances are typical risks associated with working on a roof and help define the duty to be obeyed.

{¶ 82} In this case, the following facts are undisputed: (1) the injury to Fleming occurred because he chased after a bucket that he alone had failed to secure; (2) he was specifically trained that if a tool or bucket was falling off the roof, he was not to chase it and was to let it fall; and (3) Fleming ignored his training and jumped off the roof. He did not fall.

{¶ 83} Analyzing this in another way, we might ask, what should the employer have done if he could have reasonably foreseen the risk that this employee might jump off the roof to chase a bucket? The somewhat obvious answer is that there should be some training to advise the employee not to do that. In this case, Fleming admits he was told by his employer not to do precisely what he did. He wastrained not to do the precise act that was unquestionably the proximate cause of his injury. Therefore, the employer discharged his duty to Fleming by specifically warning him not to chase an item down the slope of a roof. Couple this with the clear standard in Ohio established byFyffe that "the mere knowledge and appreciation of a risk — something short of substantial certainty — is not intent." Fyffe v. Jeno's, Inc.,59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph two of the syllabus.

{¶ 84} I do not believe there are any genuine issues of material fact in this matter. Further, appellees are entitled to judgment as a matter of law. The undisputed evidence shows that Fleming's injuries were caused by his own actions, which were in express violation of the safety training and instructions he received. The injuries were not a result of the employer's intentional tort. Accordingly, Fleming's proper remedy lies within Ohio's workers' compensation system.

{¶ 85} There is no indication that the existence of fall-protection equipment would have prevented this injury. That equipment is designed to prevent accidental falls such as those referred to herein. They are not designed to prevent someone from making the conscious decision to jump off the roof. The lack of fall-protection equipment on this roof had as much to do with the injury as, let's say, the lack of tail lights on the vehicle that took Fleming to work that day.