DocketNumber: Case C-890272
Citation Numbers: 572 N.E.2d 257, 60 Ohio App. 3d 14, 5 Ohio App. Unrep. 15, 5 AOA 15, 1990 Ohio App. LEXIS 2930
Judges: Utz, Hildebrandt, Gorman
Filed Date: 7/18/1990
Status: Precedential
Modified Date: 10/19/2024
This cause came on to be heard upon an appeal from the Hamilton County Court of Common Pleas.
Plaintiff-appellant, Ray Emminger, Sr., the administrator of the estate of Michael Ray Emminger ("Emminger"), appeals from the trial court's order granting a motion for summary judgment in favor of In Motion, Inc., Emminger's employer, on his wrongful-death claim, and in favor of Bishopric, Inc., Bishopric Products Company, and Enerfab Corporation ("Bishopric"), the owner of the premises on which Emminger sustained his injury, on his negligence claim. In his two assignments of error plaintiff contends that genuine issues of material fact exist as to both (1) his wrongful-death claim arising from an intentional tort allegedly committed by Emminger's employer, and (2) his claim for negligence against the premises owner. We find that the first assignment of error, relating to plaintiff's alleged intentional-tort claim against In Motion, Inc., is well-taken, but we overrule the second assignment of error relating to Bishopric.
In Motion, Inc. is engaged in the business of repairing cranes and, pursuant to a contract with Bishopric, was working at Bishopric's plant in Cincinnati. Michael Emminger, an eighteen-year-old co-op student from Cincinnati Technical College, had been employed for three and one-half weeks by In Motion, Inc. His supervisor, Mark Beer, assigned him to work on a crane which needed a brake removed and replaced. Emminger, Beer, and a third employee ascended on a lift platform to an I-beam forty feet above the plant floor. To reach the crane and begin his assigned job, Emminger walked across the I-beam for a distance of ten feet without a safety belt, a safety line or a safety net. Beer and the other employee then descended to the floor and resumed working approximately fifty to sixty feet from Emminger. An hour or so later Beer heard a noise that sounded to him like a tool falling. He then discovered that Emminger had fallen to the floor, sustaining injuries from which he later died.
Emminger's administrator filed a death claim with Kentucky's Workers' Compensation Board because Emminger was a Kentucky resident hired in Kentucky by In Motion, Inc., a Kentucky corporation. On March 4, 1986, Emminger's death claim was settled and approved. Subsequently, the *Page 16 administrator filed his complaint against In Motion, Inc. and Bishopric in the Hamilton County Court of Common Pleas.
In his first assignment of error plaintiff argues that, unlike Ohio employers, In Motion, Inc. is not immune from civil actions because it did not contribute to the Ohio workers' compensation system. He maintains that the exclusive-remedy limitations of workers' compensation benefits under Section
Because plaintiff filed his complaint before the enactment of R.C.
"* * * (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjected to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks." VanFossen, supra, at 116,
The effect of this three-tier test is to modify Jones v. VIPDevelopment Co., supra, and to serve as "* * * significantly limiting the areas within which ``intent' on the part of the actor may be circumstantially inferred." (Emphasis sic.) Van Fossen,supra, at 117,
"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 *Page 17
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." Van Fossen, supra, at 117,
While this language may suggest that the Supreme Court has in reality eliminated an employee's claim for an intentional tort, absent evidence of the employer's actual intent to injure,Kunkler v. Goodyear Tire Rubber Co. (1988),
"* * * If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor's conduct loses the character of intent, and becomes mere recklessness, as defined in § 500. As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence, as defined in § 282. All three have their important place in the law of torts, but the liability attached to them will differ." See, also, Prosser Keeton, Law of Torts (5 Ed. 1984) 35, Section 8.
In Motion, Inc. does not dispute that it violated Ohio Adm. Code
In Motion, Inc. maintains that substantial certainty means virtual certainty, and that Emminger's fall was not a virtual certainty at the time of the accident. However, the test is not whether the employer knows that the very event will occur at a precise time. The test is whether the employer knows "that the consequences are certain, or substantially certain, to result from his act and still goes ahead * * *." Pariseau v. WedgeProducts, Inc. (1988),
"* * * In Motion had no form of safety program. They regularly worked at heights. They had been told about wearing safety equipment by other contractors, or other clients, excuse me. And then they went right along doing their business without requiring fall protection. In my judgment, that is pretty close to willful."
While the evidence submitted by the parties is contradictory, the affidavits, depositions and exhibits raise genuine issues of material fact upon which reasonable minds can come to different conclusions as to whether In Motion, Inc.'s conduct was intentional when examined under the standards for intentional-tort claims provided in paragraph six of the syllabus to Van Fossen:
"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 — *Page 19
something short of substantial certainty — is not intent. (Blankenship v. Cincinnati Milacron Chemicals, Inc. [1982],
Plaintiff's first assignment of error is sustained in part. In his second assignment of error, plaintiff alleges that genuine issues of material fact exist as to his claim against Bishopric. The parties agree that In Motion, Inc. was an independent contractor. Plaintiff maintains that Bishopric exercised control over In Motion, Inc.'s employees because Bishopric designated the cranes to be repaired and the times for the work, its plant manager supervised In Motion, Inc.'s employees, it permitted In Motion, Inc.'s employees to use its lift and tools at their convenience, and it required In Motion, Inc.'s employees to wear hard hats.
Under Ohio law, the owner of premises owes no duty to employees of an independent contractor injured on its premises where the performance of the work involves an inherent danger unless the owner: (1) has superior knowledge of the danger which the independent contractor lacks, Eicher v. United States SteelCorp. (1987),
Plaintiff's evidence fails with respect to both exceptions. First, there is no evidence that Bishopric's knowledge of the danger was greater than the knowledge of In Motion, Inc. As to the second exception, evidence of the premises owner's supervision to assure compliance with job specifications, its concern for safety, and the use of its tools by the independent contractor's employees are not acts that individually or collectively render the premises owner liable on grounds that it directed or interfered with the independent contractor's work.Cafferkey v. Turner Constr. Co. (1986),
The second assignment of error is overruled.
The trial court's judgment is reversed only with respect to the intentional-tort claim asserted against In Motion, Inc., and this cause is remanded to the trial court for further proceedings consistent with law and this decision on that one claim only. In all other respects, the trial court's judgment is affirmed.
Judgment accordingly.
UTZ, P.J., HILDEBRANDT and GORMAN, JJ., concur.