Opinion
No. 77560.
Decided December 7, 2000.
Civil appeal from Cuyahoga County Common Pleas Court, Case No. CV-345,189.
JOHN S. CHAPMAN, Attorney at Law, Cleveland, Ohio, CARTER R. DODGE, Attorney at Law, Cleveland, Ohio, for plaintiff-appellant.
RICHARD C. HUBBARD III, KATHLEEN M. KORDELESKI, TIMOTHY S. ANDERSON, Attorneys at Law, Duvin, Cahn Hutton, Cleveland, Ohio, for defendant-appellee.
JOURNAL ENTRY and OPINION
This case is before the court on appeal from a decision of the common pleas court granting summary judgment in favor of defendant-appellee LTV Steel Company, Inc. (LTV) on plaintiff-appellant's intentional tort claim. Plaintiff urges:
I. THE LOWER COURT ERRED AS A MATTER OF LAW IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE GENUINE ISSUES OF MATERIAL FACT PERSIST AS TO EACH OF THE THREE ELEMENTS OF THE FYFFE TEST.
II. THE LOWER COURT ERRED AND ABUSED ITS DISCRETION IN DENYING PLAINTIFF DISCOVERY AS TO ACCIDENTS AT LTV INVOLVING OVERHEAD CRANES OTHER THAN THE BS-1.
III. THE LOWER COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED PLAINTIFF'S SECOND MOTION FOR AN [SIC] REENACTMENT OF THIS FATALITY AND PLAINTIFF'S MOTION FOR RECONSIDERATION OF THAT RULING.
We find genuine issues of material fact precluded summary judgment in LTV's favor. Accordingly, we reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed her original complaint on December 12, 1997 and amended it two weeks later, before an answer was filed. A second amended complaint was then filed with leave of court on April 16, 1999. The second amended complaint alleges that plaintiff's decedent, Isaac Lawrence, was employed by the Central Maintenance and Planning Department at the LTV plant at 1555 Harvard Avenue, Cleveland, Ohio. On April 9, 1997, Lawrence died when a crane struck a 500- to 600-pound steel frame, causing it to fall over on him and crush his skull.
The complaint alleged that LTV knowingly allowed untrained or inadequately trained employees to operate cranes and failed to maintain and repair the crane at issue to keep it in safe operating condition. The complaint alleged that these constituted a dangerous process, procedure, instrumentality or condition within [LTV's] business operation. Furthermore, the complaint alleged that LTV knew that harm to employees was a substantial certainty, yet continued to require the decedent to work in the vicinity. The complaint sought compensatory and punitive damages for the decedent's wrongful death on behalf of his surviving spouse, children, parents, and other next of kin.
Discovery was conducted over an extended period of time, during which appellant filed at least four motions to compel. Two of these motions are at issue in this appeal and will be discussed further below.
LTV moved for summary judgment on December 10, 1999. Appellant filed her brief in opposition on December 23. The court granted LTV's motion in a half-sheet entry filed January 3, 2000, which stated:
The court having examined all appropriate evidentiary material filed by the parties finds that there are no genuine issues of material fact and finds that deft LTV Steel Co. is entitled to judgment as a matter of law. Accordingly, deft LTV Steel Co. Inc's motion for summary judgment is granted. Final.
Appellant timely filed her notice of appeal on January 28, 2000.
The parties provided the trial court with extensive documentary evidence in connection with the summary judgment motion. This evidence shows that Ronald Buffington and Donald Dotson used the crane earlier on the same day the decedent was killed. Both reported that the hoist on the crane drifted, that is, it continued to move after they let go of a toggle switch, an action that should have stopped its movement. Terry Raffis was operating the crane when the decedent was killed. He denied that the crane was malfunctioning.
Raffis, the decedent and Donald Burton were all assigned to fabricate steel frames. Raffis was attempting to maneuver the crane into position to lift a frame they were working on when the hoist unexpectedly swung and dropped lower than Raffis intended, nicking the top of the frame. The hoist then swung back, pushing the frame over onto the decedent, who was on the ground below.
After this incident, LTV was cited by the Occupational Safety and Health Administration for exposing employees to serious injury due to inadequate training of radio controlled crane operators.
LAW AND ANALYSIS
Plaintiff-appellant first argues the court erred by granting summary judgment in favor of LTV. We review an order granting summary judgment de novo, applying the same standard applied by the trial court. Hillyer v. State Farm Mut. Auto Ins. Co. (1999), 131 Ohio St.3d 172, 175; Temple v. Wean United Inc. (1977), 50 Ohio St.2d 317, 327.
Summary judgment is proper where there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. The party seeking summary judgment bears the burden of showing that there is no genuine issue of material fact for trial. Doubts must be resolved in favor of the non-moving party. Celotex v. Catrett (1987), 477 U.S. 317, 330; Dresher v. Burt (1996), 75 Ohio St.3d 280; Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59.
The complaint in this case asserts an intentional tort claim against LTV. To succeed on this claim, plaintiff-appellant must demonstrate, directly or through circumstantial evidence, that (1) LTV knew of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) LTV knew that harm to an employee would be substantially certain to occur if the employee were subjected to this danger by his employment; and (3) with this knowledge, LTV required the employee to continue to perform the dangerous task. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus. The risk of harm must be relatively high to reach the level of a substantial certainty; mere negligence or recklessness is not enough. Id., 59 Ohio St.3d 115, at paragraph two of the syllabus.
Because [t]he plaintiff has the burden of proving by a preponderance of the evidence that the employer had `actual knowledge of the exact dangers which ultimately caused' injury, LTV claims plaintiffs here cannot succeed as a matter of law. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172. LTV claims that Lawrence's injury was caused not by a dangerous process, procedure, instrumentality or condition within its business operation but by three factors of which LTV had no knowledge and over which it had no control: (a) the removal of a kicker from the base of the frame the decedent and his co-workers were constructing; (b) the decedent's position on the ground rather than on top of a table; and (c) the bumping of the frame with the crane hook.
This argument misses the mark. While the removal of the kicker and the location of the decedent might constitute contributory negligence by the decedent and/or his coworkers, contributory negligence is not a defense to an intentional tort claim. Cremeans v. Willmar Henderson Mfg. Co. (1991), 57 Ohio St.3d 145; Stump v. Industrial Steeplejack Co. (1995), 104 Ohio App.3d 86, 94. Plaintiff need not prove that the dangerous condition was the only cause of injury; he must simply prove it was a proximate cause.
There is a genuine issue of fact as to why the crane hook bumped the frame. Though LTV attributes this event to the miscalculations of an experienced crane operator, there is evidence in the record from which a reasonable juror could conclude that the crane was malfunctioning. Ronald Buffington, who used the crane earlier that morning, reported that the hoist continued to descend after he released the toggle switch, which would normally stop it. He passed this information on to the next crane operator, Donald Dotson. In fact, when Buffington gave the crane over to Dotson, it would not respond to the remote controls at all. A supervisor, Gary Freeman, took the controls, and the crane began to work again. Freeman then gave the controls back to Dotson and told Dotson to go ahead and use it.
Dotson indicated that the crane was not responding evenly to the controls and that the hoist drifted. He said it took him some time to get used to the way it was functioning and to get control of it. Dotson turned the crane over to Terry Raffis, who was operating it when the decedent was killed.
This testimony, if believed, would demonstrate that the decedent's employer knew that the crane was not consistently responding to the controls on the day the decedent was killed. Given the hazardous activities performed with the cranes lifting heavy objects on a hook and moving them overhead a reasonable jury could find LTV knew that injury was substantially certain to occur to an employee required to work with the malfunctioning crane, or in the same vicinity.
Plaintiff need not demonstrate that LTV knew this precise accident would occur; therefore, LTV's arguments that it could not have known that the decedent would be positioned as he was, or that the kicker would be removed, are unavailing.
Finally, a reasonable jury could find that LTV required the decedent and his coworkers to use the malfunctioning crane. LTV denies it controlled the way the decedent and his coworkers performed their work of constructing the frame, but it unquestionably provided the crane for their use for this purpose. In fact, a supervisor instructed another employee to use the crane even though the supervisor knew it was malfunctioning. These facts create a genuine issue of fact for trial. Cf. Hannah v. Dayton Power Light Co. (1998), 82 Ohio St.3d 482.
Therefore, the trial court erred by entering summary judgment for LTV. Consequently, we reverse the trial court's judgment and remand for trial.
In her second assignment of error, appellant claims the trial court abused its discretion by denying her discovery concerning prior crane accidents. The discovery request at issue was a part of appellant's third request for production of documents, which stated:
3. Please produce any and all Documents which evidence, mention or pertain in any way to accidents, injuries, mishaps of every kind, nature, and descriptions [sic], occurring prior to the date of the Incident and occassioned [sic] by, or in connection with, the use or operation of any overhead remotecontrolled crane, other than the Crane, owned by or maintained on Premises owned by Defendant.
After appellant moved the court to compel LTV to respond to this request, LTV objected as follows:
Objection. Request No. 3 is unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Moreover, it calls for information protected by the attorney-client and/or work product privileges. Without waiving any objection, see documents previously produced.
Appellant then filed a supplemental brief with the trial court, arguing that prior accidents were relevant and it was not for LTV's counsel to decide what was reasonably calculated to lead to the discovery of admissible evidence. The trial court denied appellant's motion to compel.
Denial of appellant's motion was not an abuse of discretion. Appellant's request was extremely broad. For example, the request covered overhead cranes at other facilities owned by LTV, and it covered an indefinite period of time. Mishaps occurring years before this incident, and events at facilities other than the one involved here, are not reasonably calculated to lead to the discovery of admissible evidence of LTV's knowledge of the dangerous condition at issue here and the substantial certainty of harm. The second assignment of error is therefore overruled.
Finally, appellant argues the court abused its discretion by denying her discovery of a videotaped reenactment of the incident that killed the decedent. LTV asserts the court does not have jurisdiction to address this issue because appellant did not assign error to this ruling in her notice of appeal. In response, appellant has moved the court for leave to amend her notice of appeal.
Pursuant to App.R. 3(F), [t]he court of appeals within its discretion and upon such terms as are just may allow the amendment of a timely filed notice of appeal. There is no question that appellant timely filed her notice of appeal following the final judgment. This served to `apprise the opposite party of the taking of an appeal,' the primary function of the notice. Maritime Mfrs., Inc. v. Hi-Skipper Marina (1982), 70 Ohio St.2d 257, 259 (quoting Capital Loan Savings Co. v. Biery [1938], 134 Ohio St. 333, 339).
Appellant should not be penalized for failing to list all of the pretrial rulings in which she claimed error, particularly when LTV was not prejudiced by that failure. Appellant's motion to amend her notice of appeal to include a claim of error in denying her motion to compel the videotape is therefore granted.
Nevertheless, we find the court did not abuse its discretion by denying this motion. There is no evidence in the record that appellant even requested production of the videotape. Her second motion to compel only recites that one of LTV's employees refused to answer questions about the reenactment in deposition. The employee refused to testify on the instruction of LTV's attorney, who objected that that matter was subject to attorney-client privilege. A transcript of the relevant part of the deposition was not included with the motion; only one page is attached to a supplemental brief, and it does not include the complete exchange.
Appellant also refers to a brief that was allegedly filed with the second motion to compel. That brief is not in the record.
Appellant's supplemental brief before the trial court indicates that LTV refused to provide appellant with the videotape, but there is no evidence of either the request or the refusal. Therefore, appellant failed to provide the trial court with the evidence needed to evaluate appellant's motion, and the court did not abuse its discretion by denying the motion to compel.
For the foregoing reasons, we sustain appellant's first assignment of error, reverse the trial court's judgment, and remand for further proceedings. We overrule appellant's second and third assignments of error.
This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is, therefore, considered that said appellant recover of said appellee her costs herein.
It is ordered that a special mandate be sent to said 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.
TIMOTHY E. McMONAGLE, P.J. CONCURS and MICHAEL J. CORRIGAN, J. DISSENTS (Separate opinion attached)
I must respectfully dissent from the majority's disposition of the first assignment of error as I would affirm the trial court's grant of defendant-appellee's summary judgment motion. Although the arguments and theory propounded by the plaintiff are compelling, the evidence before the trial court is controlling. In evaluating the evidence proffered by the plaintiff-appellant, it is clear that she has failed to satisfy the three prong test enunciated in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, 118:
1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation.
2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty.
3) that the employer under such circumstances and with such knowledge, did act to require the employee to continue to perform the dangerous task. (Emphasis sic.)
A plaintiff who asserts an intentional tort claim must prove by a preponderance of the evidence that the employer had actual knowledge of the exact dangers which ultimately caused injury. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, 539 N.E.2d 1114. (Emphasis sic.) Cited with approval by Cross v. Hydracrete Pumping Company, Inc. (1999), 133 Ohio App.3d 501, 728 N.E.2d 1104.
The majority cites Fyffefor the proposition that the risk of harm must be `relatively high' to reach the level of substantial certainty. The actual language used by the Supreme Court on the issue of what level of conduct permits a finding that a particular injury was substantially certain to occur was as follows:
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. Fyffe, supra, at 118. (Emphasis sic.)
It is also important to note that "in the arena of intentional tort, an `actual knowledge' standard is used in determining whether an employer knew that an injury was substantially certain to occur. Burkey v. Teledyne Farris Engineering (June 30, 2000), Tuscarawas App. No. 1999AP030015, unreported. What a reasonable person should have known is not sufficient. Id.
Substantial certainty means that if an injury is the probable consequence of an act, then the act was substantially certain to have produced the injury." Richie v. Rogers Cartage Co. (1993), 89 Ohio App.3d 638, 644, 626 N.E.2d 1012, 1016. Bates v. Tenable Sec. (Oct. 7, 1999), Cuyahoga Cty. App. No. 76449, unreported. The question of "substantial certainty" is dependent upon the individual facts of each particular case. Id.
In the instant case, the uncontroverted evidence established that the accident which killed the decedent would not and could not have happened absent the confluence of at least three separate and distinct occurrences. These three risk factors were the premature removal of the kicker, the failure of the decedent to properly position himself on top of one of the two tables in his work area, rather than between the two tables, and the operator's negligence in permitting the crane hook to bump the frame. If any of these factors were not present at the precise time of the accident, the accident would almost certainly not have occurred, according to the appellant's own expert. There is no evidence in the record that the appellee had knowledge of any of these three causal factors, yet the majority somehow concludes that there exists a genuine issue of fact as to whether the accident, which took the life of the decedent, was substantially certain to occur.
The hook crane would not have struck the frame if not for the operator's negligence. Even after the hook crane struck the frame, the frame would not have fallen over if the kicker had not been prematurely removed. Finally, even if we assume that the appellee knew that the alleged malfunctioning of the crane hook could cause the frame to topple over, the record still demonstrates that the accident could not have happened had the decedent not improperly placed himself between two tables. Thus, the exact dangers which caused the appellant's injury were the faulty operation of the crane hook, the removal of the kicker and the decedent's positioning of himself. Sanek, supra, at 172.
The majority's conclusory assertion that a reasonable jury could find that LTV knew that injury was substantially certain to occur to an employee required to work with the malfunctioning crane, or in the same vicinity ignores the overwhelming weight of the evidence in the record. Per the holding of the Ohio Supreme Court in Sanek and this court in Cross, a plaintiff must present evidence that his employer had actual knowledge of the exact dangers which ultimately caused injury. It is conceded in the case sub judice by the appellant that this employer did not have actual knowledge of the exact dangers which caused the decedent's death.
The majority states in its opinion that there is a genuine issue of fact as to why the crane hook bumped the frame. With all due respect, that is not the relevant issue before this court. The only relevant issue is whether the appellee knew that the crane hook was a dangerous instrumentality and knew with substantial certainty that the appellant would be harmed if subjected to this instrumentality. The mere fact that the appellee might have had notice of some mechanical difficulties with the crane prior to the accident is not nearly enough for this court to conclude that the appellee knew that the accident was substantially certain to occur. No reasonable person reviewing the record in this case could conclude that the appellee exhibited the sort of willful indifference necessary to impose liability on an employer under the doctrine of intentional tort.
The majority opinion effectively permits plaintiffs to create a genuine issue of fact in an employment intentional tort case merely by producing evidence of negligence on the part of the employer in failing to remedy machine defects, even where there is no reason to believe that the employer had knowledge or a belief that the malfunctioning would likely lead to serious injury. This standard is an unfair and unrealistic burden to impose given the realities of the industrial work place and is in stark contravention with the controlling precedent in this state. As the Court concluded in Sanek v. Duracote Corp., supra, at 172-173:
It must be emphasized that "[t]here 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 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, 522 N.E.2d at 504-505. (Footnote omitted.)
The majority's unsupported assertion that the mere fact that the crane which allegedly was defective was used for the purpose of lifting heavy objects made the injury substantially certain to occur sets a dangerous precedent. Henceforth, any allegation of negligence in the maintenance and upkeep of a potentially dangerous machine or tool on the part of an employer will be enough to create an issue of fact and defeat a motion for summary judgment. Such a standard operates to extinguish the second and third prong of the three prong test enunciated by the Supreme Court in Fyffe, supra, and completely ignores the actual knowledge requirement on the part of the employer.
Work place intentional torts are limited to egregious cases. Sanek, supra, at 172. While the facts of the present case are tragic, and the resulting death made worse with the knowledge that they could have been avoided, there simply was no evidence presented by appellant to establish all of the components of an intentional tort claim as set forth by the Supreme Court of Ohio in Fyffe.
Without knowledge of the negligent operation of the crane hook, the improper removal of the kicker and the decedent's dangerous positioning of himself, the appellee cannot be charged with having "actual knowledge of the exact dangers which ultimately caused" injury. Accordingly, I would affirm the judgment of the trial court.