Opinion
3:99CV7465
June 8, 2001
Lynn B Griffith, III, Leston, Griffith, Woodall, Lavelle, For defendants, Delphi Chassis System — Sandusky Operations and/or Subsidiary of General Motors Corporation, General Motors Corporation, Warren, OH
William M. Kovach, Law Office of Richard R. Kuepper, For defendants, Great Lakes Environmental, Inc., Waterlink, Inc., Cleveland, OH
Edward L. Lavelle, Letson, Griffith, Woodall Lavelle, For defendants, CT Corporation System, Delco Chassis Division and/or Subsidiary of General Motors Corporation, Delphi Chassis System — Sandusky Operations and/or Subsidiary of General Motors Corporation, General Motors Corporation, Warren, OH
Shawn M. Mallamad, Law Office of Regina M. Massetti, For defendant, Great Lakes Environmental, Inc., Waterlink, Inc., Cleveland, OH
Ellen M McCarthy, Nurenberg, Plevin, Heller McCarthy, For plaintiff, Edward J. Podgurski, Jr., Cleveland, OH
Jeffrey A. Leikin, Nurenberg, Plevin, Heller McCarthy, For Plaintiff, Edward J. Podgurski, Jr., Cleveland, OH
Brian A. Meeker, Reminger Reminger, For defendant, Great Lakes Environmental, Inc., Waterlink, Inc., Cleveland, OH
David W Mellott, Benesch, Friedlander, Coplan Aronoff, For defendant, Great Lakes Environmental, Inc., Waterlink, Inc., Cleveland, OH
Leon M Plevin, Nurenberg, Plevin, Heller McCarthy, For plaintiff, Edward J. Podgurski, Jr., Cleveland, OH
Kathleen J. St. John, Nurenberg, Plevin, Heller McCarthy, For plaintiff, Cleveland, OH
ORDER
This is an action in which plaintiff Edward J. Podgurski, Jr. alleges that the defendants Delphi Auto Systems and General Motors Corporation ("Delphi") are liable for damages based on a theory of employer intentional tort. Jurisdiction arises pursuant to 28 U.S.C. § 1332. Pending is Delphi's motion for summary judgment. (Doc. 49). For the following reasons, Delphi's motion is granted.
BACKGROUND
On February 12, 1995, plaintiff began his employment with Delphi as a journeyman millwright. As a millright, plaintiff's duties included, generally, moving equipment, unjamming conveyors, and building conveyors.
On July 6, 1998, plaintiff's supervisor, Gary Laws, instructed plaintiff to remove a 4 foot by 3 ½ foot by 2 foot coalescing filter from a coalescing unit so that it could be steam cleaned. The task of removing the filter was undertaken only once or twice a year. Prior to July 6, 1998, plaintiff had never been assigned the task of removing and re-installing a coalescent tank filter.
In order to lift the filter from the coalescing unit, plaintiff used a tow motor in conjunction with a boom attached to the forks of the tow motor. Plaintiff attached chains to the boom and placed the boom into eyelets existing on all four corners of the filters. The tow motor was used to lift the filter.
Plaintiff was injured as he attempted to place the coalescing filter back into the coalescing unit after it had been cleaned. After the filter had been cleaned in the steam room, plaintiff decided to use the tow motor and boom to transport the filter back to the unit. The filter had to be maneuvered around a steam pipe that was immediately in front of the coalescing unit. Plaintiff moved the tow motor and boom as close to the staircase as he could, lowered the filter so that it rested very lightly on the rim of the coalescing unit, and, using the side shifts on the tow motor, moved the unit lightly against the steam pipe.
As plaintiff struggled to push the filter, his hand was severely cut by an unbuffed steel edge of the coalescing filter. Plaintiff has undergone two surgical procedures for the injury and alleges that he has permanently lost strength and dexterity in his left hand.
Plaintiff alleges that his supervisors had knowledge prior to plaintiff's accident of the obstruction presented by the location of the steam pipe to the filter. According to the plaintiff, his supervisors knew to a substantial certainty that assigning plaintiff the task of moving the filter would lead to his injury.
ANALYSIS
Generally, in Ohio, an employee's only recourse for compensation due to on-the-job injury is through the workers' compensation system. Youngbird v. Whirlpool Corp., 99 Ohio App.3d 740, 744 (1994). However, under common law, an injured employee can seek compensation from the employer for injuries intentionally inflicted by the employer. Id.
To establish a claim of employer intentional tort, a plaintiff must demonstrate: 1) the employer had knowledge of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; 2) the employer knew, to a substantial certainty, that subjecting the employee to such dangerous process would cause harm to the employee; and 3) the employer, with such knowledge, required the employee to perform the dangerous task. Fyffe v. Jeno's Inc., 59 Ohio St.3d 115, 118 (1991).
In 1995, the Ohio legislature enacted § 2745.01 to supersede common law governing employer's liability for intentional tort. The Ohio Supreme Court, however, determined § 2745.01 was unconstitutional in its entirety. Johnson v. BP Chem., Inc., 85 Ohio St.3d 298 (1999).
Plaintiff has failed to establish a genuine issue of material fact demonstrating that Delphi had knowledge of the danger caused by the task or that Delphi required the plaintiff to perform the dangerous task.
Plaintiff contends that Delphi had knowledge of the danger posed by the placement of the steam pipe based on: 1) the testimony of John Roberts, a line supervisor, that it would have been beneficial if the steam pipe was not located next to the tank for purposes of moving the filter; 2) Roberts' testimony that, before plaintiff's injury, another employee had been injured twisting himself and slipping while maneuvering around the steam pipe to change the filter; and 3) that Roberts had requested the area supervisor to move the steam pipe prior to plaintiff's accident.
I conclude that this evidence is insufficient to establish a genuine issue of material fact as to whether Delphi had knowledge of the dangerous condition caused by the location of the steam pipe.
Plaintiff was cut by the edges of the filter frame as he maneuvered the filter into the coalescing unit. There is no evidence that any other employee had previously been cut maneuvering the filter into the unit. An employer's conduct can be found intentional, even though there were no prior accidents resulting from the conduct. Cook v. Cleveland Electric Illuminating Co., 102 Ohio App.3d 417 (1995). However, the lack of prior accidents does tend to show the accident was unexpected and not substantially certain to occur. Sanek v. Duracote Corporation, 43 Ohio St.3d 169 (1989).
Evidence that Delphi had prior knowledge that another employee slipped while maneuvering the filter around the steam pipe may rise to the level of negligence or recklessness, but does not demonstrate that Delphi knew, to a substantial certainty, that plaintiff would be cut by the filter. Proof beyond that required to prove negligence or recklessness must be established for an intentional tort of an employer. Fyffe, 59 Ohio St.3d at 115. "[M]ere knowledge and appreciation of a risk, something short of substantial certainty, is not intent." Id.
Next, plaintiff failed to demonstrate a genuine issue of fact that Delphi required the plaintiff to perform the dangerous task in the manner which led to his injury. "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." Sanek vs. Duracote Corp., 43 Ohio St.3d 169, 172 (1989). However, "the intentional tort cause of action is limited to egregious cases." Id.
Delphi gives millwrights, as skilled craftsmen, discretion to decide the appropriate method to move the filters. Delphi supervisors did not instruct millwrights how to perform the task. Delphi provided all the equipment that a millwright might need in order to move the filter in and out of the coalescing unit. Plaintiff could have used an overhead crane to move the filter instead of a tow motor and boom.
Plaintiff has not established a genuine issue of material fact that Delphi knew, to a substantial certainty, requiring plaintiff to move the filter, in the manner he chose, would cause him to be cut by the filter. See Burgos v. Areway, Inc., 114 Ohio App.3d 380 (1996) (granting summary judgment for employer because employer did not require the employee to perform the task in the manner chosen by employee); Youngbird v. Whirlpool Corp., 99 Ohio App.3d 740 (1994) (employer not liable for intentional tort because employee used his hands, not a tool, to clean moving rollers).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED THAT Delphi's motion for summary judgment be, and hereby is, granted. (Doc. 49).
So ordered.