Opinion
Case No. 3:03CV7007
January 13, 2004
ORDER
This is a diversity personal injury action that has been removed to this court from the Lucas County, Ohio, Court of Common Pleas. Plaintiff Brenda Thornton claims that she was injured as the result of her employer's intentional tort. Defendant Daimler Chrysler has filed a motion for summary judgment. For the reasons that follow, that motion will be granted.
BACKGROUND
Plaintiff began working in the Jeep plant in Toledo in 1975. Plaintiff's job, which she continues to perform, involves moving car carriers and car frames from one portion of the manufacturing line to the paint line. She contends she injured her neck on December 15, 2000, while pushing a carrier. She states that she felt sharp pains and has pain in her neck and both shoulders. She did not immediately report her injury or go to the plant hospital.
She first reported her injury about four weeks later. Her primary care physician ordered an MRI, and referred her to an orthopedic surgeon who diagnosed arthritis. She was then referred to a neurosurgeon, who ordered an MRI. She declined, and continues to decline, to take the MRI due to claustrophobia and panic attacks. The neurosurgeon has informed plaintiff he can do nothing for her until she takes the MRI.
Plaintiff has a long history of neck and shoulder pain, extending from 1985 to December, 2000. She does not consider her job to be dangerous, though she attributes her injury to sticking on the part of the carrier's wheels. This, she asserts, is due to unevenness in the metal plates covering the plant floors, and paint that would cause the wheels to stick. Defendant's ergonomist has stated that there is no current trend of injuries with regard to plaintiff's job, and that job is not considered by the company to be high risk
Further, there is uncontested evidence in the record that the floors have been replaced and/or repaired, on almost a continuous basis for the last several years, continuing up to and including the time of plaintiff's alleged injury. Also, a system was put in place to oil and grease the wheels of the carriers to reduce sticking. Plaintiff has submitted evidence of problems with the floor/wheels in 1998, which defendant has countered by showing that all reported problems with floors or wheels are repaired within one to two hours after they are reported plaintiff's only other evidence is her unsupported allegation that she thinks the company knows how bad the floors and wheels are, and her opinion that the company's "fixes were inadequate." (Doc. 51, at 3.) Plaintiff has not submitted evidence of any injuries (other than her own alleged injury) since defendant began replacing/repairing the floors/wheels.
The impetus for the replacement/repair appears to have been a finding, in an eighteen-month period in 1994-95, that the job that plaintiff (and others) perform was causing the most injuries of any job in the plant. Plaintiff relies on this evidence, which predated her injury by at least five full years, almost exclusively to prove defendant was aware of the harm and intended her injury.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©)).
DISCUSSION
Defendant presents two major arguments in support of its motion for summary judgment: first, that the plaintiff cannot establish to a reasonable medical certainty that she was injured on December 15, 2000, and second, that even if she could establish the fact of injury, she cannot overcome the high standard of proof in employer intentional tort cases. For the reasons set forth below, because the second argument is well-taken, the motion will be granted.
My decision on the merits of plaintiff's substantive claim also negates the need to address defendant's arguments regarding proximate causation and punitive damages.
A. Date of Injury
Defendant's first argument, that plaintiff has not presented sufficient evidence (in the form of medical or expert testimony) that she suffered an injury on December 15, 2000, is not well-taken. Plaintiff's deposition testimony specifically states that the injury occurred on that date. (Doc. 36 at 43, 55.) That alone is enough to establish, at the very least, a genuine issue of material fact as to when/if plaintiff was injured. The credibility of plaintiff's claim that her injury occurred on that date (or at all) is simply not an issue this court is capable of resolving at this stage of the litigation. See McDowell v. Krawchison, 125 F.3d 954, 958 (6th Cir. 1997) (credibility is inappropriate consideration for district court at summary judgment stage). Despite defendant's attempts to support its argument with case law establishing the admissibility of medical testimony, defendant has failed to cite any case law holding that a plaintiff must submit medical or expert testimony to establish the date of injury. It is enough that she has sworn under oath that her injury occurred on that date.
For this reason, defendant's statute of limitations argument also fails. See Fonseca v. Consolidated Rail Corp., 246 F.3d 585 (6th Cir. 2001) (where plaintiff's deposition testimony tended to establish two separate injuries rather than an aggravation of the first injury, summary judgment inappropriate on issue of statute of limitations; medical testimony not required).
B. Employer Intentional Tort Standard
Because Ohio's workers' compensation program grants employers immunity from employee lawsuits except in cases where the employer has committed an intentional tort, plaintiff must establish that defendant committed an intentional tort to maintain her claim. Brady v. Safety-Kleen Corp., 6 1 Ohio St.3d 624 (1991) (citing Jones v. VIP Dev. Co., 15 Ohio St.3d 90 (1984) ("[R]eceipt of workers' compensation benefits does not preclude an employee or his representative from pursuing a common-law action for damages against his employer for an intentional tort.")). For the following reasons, defendant's motion will be granted.To maintain an intentional tort action against her employer, a plaintiff must show:
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; and
3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115 (1991) (syllabus); see also Johnson v. BP Chemicals, Inc., 85 Ohio St.3d 298 (1999) (holding Ohio legislation superseding the decision in Fyffe to be unconstitutional).
The employee must present "proof beyond that required to prove negligence and beyond that to prove recklessness." Fyffe, 59 Ohio St.3d at 115. Intent means that "the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition." Id. If this is the case, and the employer still proceeds, "he is treated by the law as if he had in fact desired to produce the result. . . .[M]ere knowledge and appreciation of a risk — something short of substantial certainty — is not intent." Id. The substantial-certainty standard is "a significantly higher standard than even gross negligence or wantonness." Zink v. Owens-Corning Fiberglas Corp. 65 Ohio App.3d 637 (1989).
I find that plaintiff's claim fails for a number of reasons. First, and foremost, plaintiff has failed to establish defendant's knowledge of a dangerous process, procedure, instrumentality or condition alleged to have caused plaintiff's injury. It is undisputed that in 1994-95, employees were sustaining injuries in the job plaintiff performs. However, there is undisputed evidence that defendant implemented a number of responses aimed at avoiding further injuries. Evidence presented by defendant but not disputed by plaintiff shows that defendant: 1) began repairing and/or replacing the metal flooring, 2) set up an oiling/greasing system to cut down on the sticking of the wheels on the carriers, 3) implemented and enforced the two-person rule (prohibiting one employee performing the trucking job on a carrier alone), and 4) added an additional piece of machinery, known as the "blue giants," to assist in the trucking job.
Plaintiff has presented no evidence that anyone other than she has been injured performing her job since these changes. Were this a case about an injury plaintiff sustained in 1994-95 or shortly thereafter, there may have been an issue of fact for the jury as to whether there was a dangerous condition. But the defendant undertook to address and reduce the risks associated with plaintiff's job, and there have been no other injuries in five years. I find that plaintiff has failed to establish a genuine issue of material fact as to the first prong of the test — whether defendant knew of a dangerous condition.
Plaintiff noted in her deposition that she believes a co-worker, Mr. Glenn Bolin, had back surgery at some point, although she does not know when or how he was injured. (Doc 36, at 81-82).
Further, I find that plaintiff has failed to establish that defendant knew injury was substantially certain to occur from any alleged dangerous condition. Again, it is undisputed that defendant took several steps to reduce the risk of injuries from the job plaintiff performs. While plaintiff opines in a conclusory fashion that these fixes were not adequate, the adequacy of these attempts is a question of negligence, which fails to rise to the level of an intentional tort. See Estep v Rieter Auto. North Amer., Inc., 148 Ohio App.3d 546, 552 (2002).
plaintiff's attempt to distinguish Estep is unconvincing. The court in Estep specifically noted that the adequacy of the guarding, installed by the employer as an attempt to make the machine more safe, was a question of negligence, not rising to the level of an intentional tort Estep is on point and applies to this case.
The Ohio Supreme Court has made clear that this cause of action is reserved for cases involving egregious conduct by the employer. See Sanek v. Duracote Corp., 43 Ohio St.3d 169, 172 (1989). The fact that defendant made an attempt to address a risk of harm negates a finding of egregious employer conduct. Estep, 148 Ohio App.3d at 552.
Lastly, given the failure of the first two prongs of the test, plaintiff cannot establish the third — that defendant required plaintiff to expose herself to the recognized harm.
Plaintiff has failed to establish a genuine issue of material fact as to her employer intentional tort claim. For this reason, the motion for summary judgment must be granted.
CONCLUSION
In light of the foregoing,
IT IS ORDERED that defendant's motion for summary judgment be, and hereby is granted.
So ordered.