DocketNumber: No. 90183.
Citation Numbers: 2008 Ohio 3363
Judges: COLLEEN CONWAY COONEY, P.J.<page_number>Page 2</page_number>
Filed Date: 7/3/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Roger Louden ("Roger"), Bertha's late husband, was employed at a CEI power plant in Ashtabula from 1977 to 2000 as a "plant helper" and a "maintenance man." As a plant helper, he swept up the asbestos insulation that had fallen from pipes and boilers and assisted with boiler "blow-outs," which filled the air with asbestos dust. As a maintenance man, he also assisted with the clean-up of boiler "blow-outs" and worked with machinery and parts containing asbestos. Roger was diagnosed with mesothelioma in March 2006.
{¶ 3} In April 2006, Roger and Bertha filed a lawsuit against multiple defendants, including CEI, alleging injuries from asbestos exposure.1 The Loudens asserted an employer intentional tort claim against CEI, alleging that CEI knowingly exposed Roger to levels of asbestos dust that were substantially certain to cause him harm.2 In November 2006, CEI moved for summary judgment. Bertha opposed CEI's motion for summary judgment, and when CEI filed its reply brief, she also *Page 3 responded. The trial court heard oral arguments in June 2007 and granted summary judgment in favor of CEI.3
{¶ 4} Bertha now appeals, raising one assignment of error, in which she argues that the trial court erred in granting CEI summary judgment. Bertha contends that a genuine issue of material fact exists as to whether CEI intended to cause harm to Roger. Specifically, Bertha argues that CEI knew with substantial certainty that harm would result from exposure to asbestos.
{¶ 6} "Pursuant to Civ. R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. *Page 4
(1995),
{¶ 7} Once the moving party satisfies its burden, the nonmoving party "may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Civ. R. 56(E); Mootispaw v. Eckstein
(1996),
{¶ 9} In Fyffe v. Jeno's, Inc. (1991)
{¶ 10} In order to sustain an employer intentional tort claim, Bertha must satisfy all three parts of the Fyffe test. Estate of MichaelMerrell v. Weingold Company, Cuyahoga App. No. 88508,
{¶ 12} However, the mere existence of a dangerous condition alone is not sufficient to satisfy the first prong. Nor is knowledge of the mere possibility of a dangerous condition sufficient. "The employee bears the burden of proving by a preponderance of the evidence that the employer had actual knowledge of the exact dangers which ultimately caused the injury." Reed v. BFI Waste Systems (Oct. 23, 1995), Warren App. No. CA95-06-062, citing Sanek.
{¶ 13} In the instant case, the evidence demonstrates that CEI knew that asbestos exposure was harmful to its employees. Deposition testimony of the former plant managers, Alexander Kennedy ("Kennedy") and Joseph Vendel, and former General Supervisor of Operations, Robert Benson, revealed that asbestos was present at the plant and they were aware of the dangers of asbestos exposure in the 1970's and 1980's. They understood that breathing asbestos dust could cause health problems. Accordingly, we find that Bertha met her burden of demonstrating a genuine issue of material fact with regard to the first prong of theFyffe test. *Page 7
{¶ 15} The Fyffe Court elaborated on what constitutes an intentional tort, declaring 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. As 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 of substantial certainty-is not intent."
{¶ 16} The Ohio Supreme Court has "defined the breadth of employer intentional torts very narrowly out of a concern ``that an expansive interpretation could thwart the legislative bargain underlying workers' compensation by eroding the exclusivity of both the liability and the recovery provided by workers' *Page 8
compensation.'" Id., quoting Kincer v. American Brick Block, Inc.
(Jan. 24, 1997), Montgomery App. No. 16073. Thus, this standard has been described as "harsh." Goodwin v. Karlshamns USA, Inc. (1993),
{¶ 17} Bertha alleges that CEI management knew that employees working in the midst of asbestos dust and fumes without protective equipment were substantially certain to be injured or killed. As part of her response to CEI's motion for summary judgment, Bertha submitted copies of newspaper articles, safety reports, and union and OSHA complaints.8 Our review of these exhibits indicates that asbestos was present at the plant and there were some OSHA violations for respirator use and instruction.
{¶ 18} We find, however, that Bertha failed to establish that CEI's conduct was more than negligence or recklessness. Bertha failed to demonstrate that CEI had knowledge that the asbestos levels in the plant were substantially certain to cause Roger's injuries because she failed to demonstrate that CEI subjected Roger to dangerous asbestos levels without providing protective measures. *Page 9
{¶ 19} There is no dispute that CEI provided Roger with safety equipment, including respirators or dust masks. Roger testified at his deposition that he always carried a dust mask in his helmet. Furthermore, there is no evidence that CEI refused to permit Roger to wear breathing protection when working around asbestos. CEI's steam power division safety manual states that "respirators shall be worn by personnel working in dusty areas." It also states that "when removing insulation containing asbestos, each employee shall wear an approved respirator."9 More importantly, when asked about the use of respirators, Roger admitted in his deposition testimony that he never wore one. Thus, the record lacks specific facts to demonstrate that CEI required Roger to act in such a manner that injury was substantially certain to occur.
{¶ 20} Bertha's allegations, when construed most strongly in her favor, may raise genuine issues of whether CEI acted negligently or recklessly, but the evidence does not manifest the specific facts necessary to create a genuine issue whether CEI committed an intentional tort. Thus, we conclude that Bertha did not meet her burden of demonstrating a genuine issue of material fact with regard to the second prong of the Fyffe test. *Page 10
{¶ 21} Having found that Bertha failed to meet the second prong of theFyffe test, we do not need to analyze whether she established the third prong because this argument is moot.
{¶ 22} Accordingly, we conclude that Bertha did not satisfy her burden of establishing that genuine issues of material fact exist. Thus, we find that the trial court correctly granted summary judgment in favor of CEI.
{¶ 23} Therefore, the sole assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
ANN DYKE, J., CONCURS; FRANK D. CELEBREZZE, JR., J., DISSENTS. (SEE ATTACHED DISSENTING OPINION.)
Goodwin v. Karlshamns USA, Inc. , 85 Ohio App. 3d 240 ( 1993 )
Biskupich v. Westbay Manor Nursing Home , 33 Ohio App. 3d 220 ( 1986 )
New Hampshire Insurance Group v. Frost , 110 Ohio App. 3d 514 ( 1995 )
Youngbird v. Whirlpool Corp. , 99 Ohio App. 3d 740 ( 1994 )
Zemcik v. LaPine Truck Sales & Equipment Co. , 124 Ohio App. 3d 581 ( 1998 )