Conley v. Endres Processing Ohio, L.L.C.

[Cite as Conley v. Endres Processing Ohio, L.L.C., 2013-Ohio-419.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
MICHAEL J. CONLEY, ET AL.,
PLAINTIFFS-APPELLANTS, CASE NO. 16-12-11
v.
ENDRES PROCESSING OHIO, LLC,
OPINION
DEFENDANT-APPELLEE.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 11-CV-0064
Judgment Affirmed
Date of Decision: February 11, 2013
APPEARANCES:
Nicholas M. Dodosh for Appellants
Erin N. Poplar for Appellee
Case No. 16-12-11
PRESTON, P.J.
{¶1} Plaintiff-appellant, Michael J. Conley,1 appeals the Wyandot County
Court of Common Pleas’ judgment granting defendant-appellee, Endres
Processing Ohio, LLC, summary judgment. Conley argues that the trial court
erred when it granted Endres Processing’s motion for summary judgment because
the record creates a genuine issue of material fact in dispute. For the reasons that
follow, we affirm.
{¶2} Conley worked for Endres Processing as a material handler from July
2008 through July 2009. (Conley Depo. at 8, 13). In July 2009, Conley went to
check an auger that Nate Johnson, the control room operator at that time, believed
was not working properly. (Id. at 44-45). Conley discovered the auger was not
turning and used a radio to tell Johnson to turn it off because it was burning the
belts. (Id. at 45-46). At that time, a metal plate that covered the belts and pulleys
was not on the auger, but was on the catwalk where the auger was located. (Id. at
47). Conley did not have a lockout device and did not lockout/tagout the machine.
(Id. at 27, 98). A power disconnect switch was also located near the auger, but
Conley did not use it. (Id. at 107). Instead, Conley told Johnson to turn the auger
back on, and then turn it off so Conley could observe the belts and pulleys to
determine the problem. (Id. at 46-47). Conley believed that Johnson would then
1
Conley’s minor children, whose loss of consortium claim the trial court dismissed on summary judgment,
are also plaintiffs-appellants .
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leave the auger turned off. (Id.) Conley put his hand in the auger to check the
tension of one of the belts. (Id.) At the same time, Johnson turned the auger back
on. (Id.). Conley’s fingers were caught in the belts and pulleys, resulting in a cut
to his middle finger and nail, as well as the amputation of his index finger. (Id. at
48-52).
{¶3} On May 9, 2011, Conley filed a complaint against Endres Processing
alleging an intentional employer tort and seeking in excess of $25,000 in damages.
(Doc. No. 1). Endres Processing filed its answer on August 1, 2011. (Doc. No.
13).
{¶4} On April 19, 2012, Endres Processing filed a motion for summary
judgment. (Doc. No. 23). On May 21, 2012, Conley filed his motion in
opposition. (Doc. No. 33). On June 22, 2012, Endres Processing filed a motion in
response. (Doc. No. 53). On July 20, 2012, Conley filed a sur-reply to Endres
Processing’s motion. (Doc. No. 65). On August 2, 2012, the trial court filed its
judgment entry granting Endres Processing’s motion for summary judgment.
(Doc. No. 76).
{¶5} On August 27, 2012, Conley filed a notice of appeal. (Doc. No. 80).
Conley now raises one assignment of error and Endres Processing raises one
cross-assignment of error for our review.
Assignment of Error No. I
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The trial court erred to the prejudice of plaintiff-appellant
Michael Conley when it granted the motion for summary
judgment of defendant-appellee Endres Processing Ohio, LLC
because the evidence as set forth in the record creates a genuine
issue of material fact in dispute.
{¶6} In his sole assignment of error, Conley argues the trial court erred by
granting Endres Processing’s motion for summary judgment because the record
creates a genuine issue of material fact regarding whether Endres Processing
committed an employer intentional tort. Conley contends that Endres Processing
deliberately removed a safety guard attached to the auger, creating a rebuttable
presumption that Endres Processing intended to injure him. Conley also argues
that Endres Processing failed to comply with appropriate lockout/tagout
procedures and removed a safety guard when it failed to provide him with a
lockout device.
{¶7} We review a decision to grant summary judgment de novo. Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, and reasonable minds can reach but one conclusion when viewing
the evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
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{¶8} Material facts are those facts “that might affect the outcome of the suit
under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993), citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Whether a genuine
issue exists is answered by the following inquiry: [d]oes the evidence present ‘a
sufficient disagreement to require submission to a jury’ or is it ‘so one-sided that
one party must prevail as a matter of law[?]’” Turner at 340, citing Liberty Lobby,
Inc., at 251-252.
{¶9} Summary judgment should be granted with caution, resolving all
doubts in favor of the nonmoving party. Osborne v. Lyles, 63 Ohio St.3d 326, 333
(1992). “The purpose of summary judgment is not to try issues of fact, but is
rather to determine whether triable issues of fact exist.” Lakota Loc. School Dist.
Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 643 (6th Dist.1996).
{¶10} R.C. 2745.01, which pertains to employer intentional torts, states in
pertinent part:
(A) In an action brought against an employer by an employee, or by
the dependent survivors of a deceased 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
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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 was committed with intent to injure another if an
injury or occupational disease or condition occurs as a direct result.
***
{¶11} The Supreme Court of Ohio recently addressed the issue of what
constitutes “deliberate removal” of an “equipment safety guard” pursuant to R.C.
2745.01(C) in Hewitt v. L.E. Myers Co., 2012-Ohio-5317. In that case, Larry
Hewitt was working as an apprentice lineman for L.E. Myers Company, an
electrical-utility construction contractor. Id. at ¶ 4. Hewitt’s task was to work in
an elevated bucket to tie in a new power line, which was de-energized. Id. at ¶ 6.
According to L.E. Myers’ policy and the job briefing log, workers were required
to wear rubber gloves and sleeves on that day. Id. Hewitt claimed that another
lineman told him that he did not need to wear the gloves and sleeves because the
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line was de-energized. Id. Hewitt admitted that the gloves and sleeves were
available. Id. At some point, another lineman yelled at Hewitt from the ground
while Hewitt was working in the elevated bucket. Id. at ¶ 7. Hewitt turned
towards the lineman, and the wire he was holding came into contact with an
energized line, resulting in severe burns. Id. Hewitt filed an action against L.E.
Myers, alleging a workplace intentional tort. Id. at ¶ 9.
{¶12} The Court 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, and the ‘deliberate removal’ of an
equipment safety guard occurs when an employer makes a deliberate decision to
lift, push aside, take off, or otherwise eliminate that guard.” Id. at ¶ 2. The Court
determined that the gloves and sleeves were personal items that the employee
controls, and thus are not “an equipment safety guard” pursuant to R.C.
2745.01(C). Id. at ¶ 3. The Court further stated, “[a]n employee’s failure to use
them, or an employer’s failure to require an employee to use them, does not
constitute the deliberate removal by an employer of an equipment safety guard.”
Id. The Court rejected a broader interpretation of “equipment safety guard,”
stating, “to include any generic safety-related item ignores not only the meaning of
the words used but also the General Assembly’s intent to restrict liability for
intentional torts.” Id. at ¶ 24. The Court also held that “deliberate removal”
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pursuant to R.C. 2745.01(C) “may be described as a careful and thorough decision
to get rid of or eliminate an equipment safety guard.” Id. at ¶ 29.
{¶13} In the present case, Conley argues that Endres Processing removed
an equipment safety guard within the meaning of R.C. 2745.01(C) by failing to
provide him with a lockout device and by removing the metal plate that covered
the auger’s belts and pulleys. This Court has previously rejected the argument that
an employer’s failure to comply with proper lockout/tagout procedures implicates
R.C. 2745.01(C) in Klaus v. United Equity, Inc., 3d Dist. No. 1-07-63, 2010-Ohio-
3549, ¶ 33. Additionally, in Hewitt, the Supreme Court of Ohio differentiated
between “personal protective items that the employee controls” and “a device that
is designed to shield the operator from exposure to or injury by a dangerous aspect
of the equipment.” Hewitt at ¶ 26.
{¶14} Here, the lockout device is an item that the employee controls rather
than an “equipment safety guard” pursuant to R.C. 2745.01(C). Similar to the
sleeves and gloves in Hewitt, locks were available in the control room. (Aten
Depo. at 34-36); (Teynor Depo. at 78); (Huffman Depo. at 38-39); (Holdman
Depo. at 47). Conley admitted that he had observed the locks in the control room
but did not ask anyone if he could use them. (Conley Depo. at 27). Conley
believed that the locks belonged to other employees. (Id. at 29). Viewing the
evidence in the light most favorable to Conley and assuming he could not use one
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of the control room locks to lockout/tagout the machine, the auger where Conley
was injured had a power disconnect switch located next to it that could be used
without a lockout/tagout device. (Aten Depo. at 37). Other employees used the
power disconnect switch when they did not lockout/tagout the machine. (Id. at
38); (Huffman Depo. at 51). Conley admitted that he knew how the power
disconnect switch operated and that it did not require any special equipment.
(Conley Depo. at 106-107). Conley also acknowledged that when he had assisted
other employees when they changed the belts, they had locked out the machine.
(Id. at 74). Conley testified that he did not request that Johnson lockout/tagout the
machine, that there was no particular reason that he did not request that someone
else lockout/tagout the machine, and that he did not think to use the power
disconnect switch. (Id. at 84, 98, 107). Furthermore, Endres Processing provided,
and Conley attended, a lockout/tagout training on the day of the incident. (Id. at
94-95). After reviewing the evidence, we conclude that the lockout/tagout device
was a personal protective item within Conley’s control rather than a “safety guard”
pursuant to R.C. 2745.01(C). Similar to the sleeves and gloves in Hewitt, Conley
could have avoided the danger by accessing available safety equipment. Conley
acknowledges that lockout devices were located in the control room, other
employees had lockout devices, and the power disconnect switch would have
served the same purpose. Consequently, Conley’s failure to use the lockout/tagout
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device, and any failure by Endres Processing to require him to use a lockout/tagout
device, cannot constitute a deliberate removal of a safety guard within the
meaning of R.C. 2745.01(C). See Hewitt at ¶ 3.
{¶15} We will next address Conley’s argument that Endres Processing
deliberately removed a metal plate that covered the auger’s belts and pulleys,
which Conley contends is a safety guard pursuant to R.C. 2745.01(C). Assuming
arguendo that the metal plate is a safety guard, we cannot find any evidence that
Endres Processing deliberately removed it. The deposition testimony establishes
that while the metal plate was frequently removed from the auger, it could have
been removed by any number of employees, the failure to replace it was likely
inadvertent, and Endres Processing had not directed the employees to remove the
metal plate and not replace it.
{¶16} Michael Aten, an Endres Processing material handler, testified that
the metal plate was sometimes off the machine, even when no one was working on
it. (Aten Depo. at 42). Aten believed the plate was off the machine a fairly high
percentage of the time, at least half the time he was near the auger. (Id. at 42-43).
Aten testified that an employee could take the cover off and put it back on with a
crescent wrench. (Id. at 45). Aten also testified that a material handler,
maintenance person, or supervisor could have removed the guard because crescent
wrenches were available to all the employees. (Id. at 73-74).
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{¶17} Jesse Teynor, a control room operator, testified that he would
occasionally forget to replace the metal plate after he had finished working on the
machine. (Teynor Depo. as 28-29). Teynor estimated that he forgot to replace the
plate about 20 percent of the time. (Id. at 30). Teynor testified that any operator
or maintenance person could remove the metal plate, but that he did not know who
removed it prior to Conley’s injury. (Id. at 39).
{¶18} Conley testified that at the time of his injury, the metal plate was not
on the auger, but that it was on the catwalk. (Conley Depo. at 46-47). Conley
estimated that the metal plate was on the machine about half of the time, and off
the machine about half the time. (Id. at 76). Conley also testified that the plate
had to be removed to expose the belts, and “[t]o make sure that the motor is
moving and everything else is moving.” (Id. at 79-80). Conley believed that
maintenance personnel were most likely to have removed the metal plate. (Id. at
80). Conley stated that he had never removed the plate. (Id.). Conley testified
that it would only take a few minutes to take the plate off or put it back on the
machine. (Id. at 87). Conley also testified that his supervisors had not instructed
him to take the metal plate off of the machine and to leave it off. (Id. at 88).
{¶19} According to Patrick Huffman, a control room operator, employees
frequently took the metal plate off the machine and put it back on, and many times
the auger ran without the plate. (Huffman Depo. at 49-50). Huffman testified that
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he had not observed anyone take the metal plate off and fail to replace it. (Id. at
50). Huffman also testified that he had never instructed anyone to remove the
metal plate and not replace it. (Id. at 54). Huffman testified that for the work
Conley was doing, he would have had to remove the plate. (Id. at 63). Huffman
estimated that the metal plate was in place 90 or 95 percent of the time. (Id. at
64).
{¶20} After reviewing the evidence, we cannot find any indication that
Endres Processing made a “deliberate decision to lift, push aside, take off, or
otherwise eliminate” the metal plate. Hewitt, 2012-Ohio-5317, at ¶ 2. We also
cannot find any evidence that Endres Processing made “a careful and thorough
decision to get rid of or eliminate” the metal plate. Id. at ¶ 29. At most, the
evidence demonstrates that Endres Processing may have been aware that at times
employees failed to replace the metal plate after removing it. However, there is no
evidence that this failure was the result of a deliberate decision by Endres
Processing. Rather, it appears that the employees’ failure to replace the plate was
usually inadvertent, and not a consequence of any instruction by Endres
Processing. Furthermore, Conley has not presented any evidence regarding who
removed the metal plate on the day of his accident. Conley himself admitted that
any number of employees could have removed the metal plate. Thus, we cannot
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find that the fact that the metal plate was removed from the auger on the day of
Conley’s accident was the result of a deliberate decision by Endres Processing.
{¶21} Conley’s assignment of error is, therefore, overruled.
Cross-Assignment of Error No. I
The trial court erred in determining that the belt cover was a
“safety guard” as that term is intended under R.C. §2745.01(C).
{¶22} In its cross-assignment of error, Endres Processing argues the trial
court erred in determining that the metal plate covering the auger’s belts and
pulleys is a safety guard pursuant to R.C. 2745.01(C). Endres Processing contends
that a “safety guard” for purposes of the statute is a device which prevents an
operator from accidentally placing his hands in a machine during its normal
operation. Endres Processing argues the auger at issue in this case is operated
from the control room, so it does not have the type of “safety guard” intended by
the statute. Endres Processing compares the auger’s metal plate to the hood of a
car, contending that removing the metal plate to work on the belts and pulleys is
analogous to removing a car’s hood to work on the engine. Endres Processing
argues that this interpretation of “safety guard” is not what the legislature
intended.
{¶23} Based upon our disposition of Conley’s assignment or error,
resulting in an affirmance of the trial court’s decision, this defensive assignment of
error is moot and need not be considered. See Trudell v. Trudell, 3d Dist. No. 5-
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11-47, 2012-Ohio-5023, ¶ 24; Glidden Co. v. Lumbermens Mut. Cas. Co., 112
Ohio St.3d 470, 2005-Ohio-6553, ¶ 31-32; Parton v. Weilnau, 169 Ohio St. 145(1959), paragraph seven of the syllabus (We may consider an appellee’s cross-
assignment of error “only when necessary to prevent a reversal of the judgment
under review.”).
{¶24} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued and having found appellee’s cross-assignment of
error moot, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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