Clark v. Energy Unlimited, Inc.

This is an appeal from an entry of the Washington County Court of Common Pleas. The court granted summary judgment in this wrongful death action in favor of appellee Energy Unlimited, Inc. ("Energy Unlimited"). We reverse.

The record reveals the following facts. On June 17, 1985, Douglas Clark, appellant's decedent, was an employee of Energy Unlimited. On that afternoon Craig Lovett, also an employee of Energy Unlimited, received a call from another employee requesting that lids be removed from three fifty-five-gallon drums to be used to store oil-spill pads.

Lovett ordered Clark to get the three drums and cut their lids off. The drums in question had, at one time, contained antifreeze. Although they had subsequently contained water, the drums had not been commercially cleaned. The outside of each drum contained a label warning individuals that the drum contained a highly flammable hazardous substance and that a welding torch was not to be used on the drum unless it had first been commercially cleaned.

Lovett came out of his office and watched Clark remove the tops of two of the drums. As Lovett walked away from the area where Clark was removing the lid from the third drum, he heard a loud explosion. On June 30, 1985, Clark died of burns sustained in that explosion.

On June 19, 1986, Eldon Clark, as administrator of Douglas Clark's estate, filed a wrongful death complaint in the Washington County Court of Common Pleas against Energy Unlimited, based on an allegation that Energy Unlimited committed an "intentional tort" by ordering Douglas Clark to remove the lids from those drums which led to Clark's death. Energy Unlimited answered on July 14, 1986.

On June 22, 1987, Energy Unlimited filed a motion for summary judgment. The appellant, Eldon Clark, filed a memorandum contra. The trial court overruled the motion.

The parties engaged in discovery proceedings. On September 18, 1989, Energy Unlimited filed another motion for summary judgment, arguing that Clark could not set forth any facts to support his allegation of intentional tort. Clark filed a memorandum contra. On October 10, 1989, the trial court held a hearing on the motion and in an October 24, 1989 judgment entry, granted Energy Unlimited's motion for summary judgment. Eldon Clark appeals and assigns one error.

"The trial court committed prejudicial error in sustaining defendant's motion for summary judgment when the evidence submitted by the parties is contradictory and a genuine issue of material fact exists. ``Where the facts alleged are such that reasonable minds could differ as to whether the defendant's conduct was intentional, a jury question is created which ordinarily may not be resolved by summary judgment.' Kunkler v.Goodyear Tire and Rubber Co. (1988), 36 Ohio St.3d 135 at 140 [522 N.E.2d 477 at 482]."

Before summary judgment may be granted, it must be determined that:

"(1) no genuine issue 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 such evidence most strongly in favor of the party against whom the party the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United,Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472,364 N.E.2d 267, 274; Van Fossen v. Babcock Wilcox Co. (1988),36 Ohio St.3d 100, 117, 522 N.E.2d 489, 505.

Clark asserts that Energy Unlimited disregarded the danger warning on the drum, and that ordering Douglas Clark to cut the lids with a torch rises to the level of an intentional tort. Clark further asserts that this is a genuine issue of fact precluding a grant of summary judgment to Energy Unlimited. We agree.

In support of his assertion, Clark relies on Kunkler v.Goodyear Tire Rubber Co. (1988), 36 Ohio St.3d 135,522 N.E.2d 477. In Kunkler, the Ohio Supreme Court held that Goodyear's notice of prior smaller explosions was enough to submit the issue of intentional tort to a jury. Clark asserts that the warning labels on the drums gave Energy Unlimited the same type of notice discussed in Kunkler.

Energy Unlimited contends that more is required than just prior notice as in Kunkler, supra, to establish an intentional tort of an employer. Again, we agree.

In support of its contention, Energy Unlimited cites VanFossen, supra. In Van Fossen, the court held that:

"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. Where the risk is great and the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the 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 ofsubstantial certainty — is not intent." (Emphasis added.) Id. at paragraph six of the syllabus.

The language above shows that the Supreme Court has directed the courts to follow a curving scale in assessing risk. This is a welding case, and if we apply the actual language of VanFossen, supra, we arrive at this kind of analysis:

Where the employer acts despite his knowledge of some risk (like sending the employees to cut with a welding torch without adequate protective clothing), his conduct might be negligence.

Where the risk is great and the probability increases that a particular consequences might follow (like sending an employee to use a cutting torch without safety glasses), then the employer's conduct may be characterized as recklessness.

As the probability that the 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 (like having an employee use a torch to cut into a steel drum containing volatile, explosive vapors which, if the drum explodes, will certainly injure and probably kill the employee) and he still proceeds, he is treated by the law as if he had in fact desired to produce the result.

Energy Unlimited contends that while it had knowledge and appreciation of the risk involved in removing the lids from those drums, it did not know with substantial certainty that any drum would explode or that Douglas Clark would sustain fatal injuries if the torch caused one of the drums to explode.

Clark asserts, pursuant to Van Fossen, supra, that a jury could find that the warning label, coupled with Craig Lovett's knowledge of the explosiveness of the drums which had not been commercially cleaned first, would show that Energy Unlimited knew that injury to Douglas Clark was substantially certain to occur when he attempted to remove the lids from the drums. This presents a material issue of fact as to whether Energy Unlimited committed an intentional tort resulting in Douglas Clark's death. This issue should have been determined by a jury.

The trial court erred in granting summary judgment to Energy Unlimited. Clark's assignment of error is well taken and is sustained.

Judgment reversedand cause remanded.

HARSHA, J., concurs separately.

STEPHENSON, J., dissents.