Williams v. ALPLA, Inc. , 92 N.E.3d 256 ( 2017 )

[Cite as Williams v. ALPLA, Inc., 2017-Ohio-4217.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
RYAN WILLIAMS,
CASE NO. 1-16-53
PLAINTIFF-APPELLANT,
v.
ALPLA, INC., OPINION
DEFENDANT-APPELLEE.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2014 0530
Judgment Affirmed
Date of Decision: June 12, 2017
APPEARANCES:
Tabitha L. Stewart for Appellant
Andrew J. Wilhelms for Appellee
Case No. 1-16-53
WILLAMOWSKI, J.
{¶1} Plaintiff-appellant Ryan Williams (“Williams”) appeals the judgment
of the Allen County Common Pleas Court for granting summary judgment in favor
of the defendant-appellee, ALPLA, Inc. (“ALPLA”). For the reasons set forth
below, the judgment of the lower court is affirmed.
Facts and Procedural History
{¶2} On August 24, 2013, Williams was employed by ALPLA and sustained
a severe injury to his right arm while he was working at ALPLA. Id. According to
Williams, ALPLA’s SSB160 machine, which manufactures bottles, was not
functioning properly during his shift. Doc. 70 at 28-29. Doc. 66 at 12. The bottles
being processed by this machine were slipping off of the track and accumulating
under the machine. Doc. 67 at 12-13. If too many bottles pile up in this area, the
machine shuts down. Id. at 11-12. The area in which these bottles were
accumulating can be accessed by opening a sliding plexiglass door on the side of
the machine. Id. at 12. Williams claims that he had been trained to open this
plexiglass door, reach inside this area of the SSB160, and gather the fallen bottles
while the machine was still running. Id. at 52-53, 60-61. Williams tried to figure
out what was causing the bottles to fall off of the track and tried several adjustments
to correct this issue. Doc. 70 at 23. After several attempted fixes failed, Williams
decided to check what he believed to be a photo eye that was located inside the
compartment where the bottles were falling off of the track and accumulating under
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the machine. Id. at 23-24.
{¶3} To avoid a break in production, Williams chose not to shut off the
machine while he opened the plexiglass access door and reached into the SSB160
machine to wipe down what he believed to be a photo eye sensor in that area of the
machine.1 Id. at 22. He, however, admitted that he could have shut down the
machine before he put his arm inside the SSB160 as he was the supervisor in charge
of the floor that evening. Id. at 27, 57. While he had previously reached into this
machine to clear out bottles, this was the first time that Williams had ever attempted
to wipe off this sensor. Id. at 24, 35. As he was attempting to service the SSB160,
Williams’s arm got caught in the machine, causing his injuries. Doc. 67 at 55. Doc.
70 at 28.
{¶4} On August 21, 2014, Williams filed a complaint with the Allen County
Common Pleas Court that named ALPLA as the defendant in an action brought
under Ohio’s employer intentional tort law. Doc. 1. On August 22, 2016, ALPLA
filed a motion for summary judgment. Doc. 64. In this motion, ALPLA argued that
Williams had not shown that ALPLA had breached any duty owed to Williams and
that ALPLA was not, therefore, liable to Williams for damages. Id. On October
11, 2016, the trial court granted ALPLA’s motion for summary judgment. Doc. 73.
1
ALPLA contends that this was not a photo eye but a proximity eye. Doc. 66 at 47, 68. The depositions,
however, appear to indicate that Williams was under the impression that this was a photo eye at the time he
reached into the machine. Doc. 70 at 24, 35.
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Williams filed a notice of appeal on November 7, 2016. Doc. 75. On appeal, he
raises the following two assignments of error.
First Assignment of Error
The Common Pleas Court of Allen County, Ohio, erred in
concluding that there were no genuine issues of material fact in
this matter.
Second Assignment of Error
The Common Pleas Court of Allen County, Ohio, erred in
concluding that Plaintiff failed to create a genuine issue of fact
regarding the removal of a steel plate, a safety mechanism, from
the SSB 160 machine.
We will consider these assignments of error together as both address the trial court’s
decision to grant summary judgment.
Legal Standard
{¶5} Appellate courts consider a summary judgment order under a de novo
standard of review. James B. Nutter & Co. v. Estate of Neifer, 3d Dist. Hancock
No. 5-16-20, 2016-Ohio-7641, ¶ 5, citing Esber Beverage Co. v. Labatt USA
Operating Co., L.L.C., 138 Ohio St. 3d 71, 3 N.E.3d 1173, 2013-Ohio-4544, 3
N.E.3d 1173, ¶ 9. Under the Ohio Rules of Civil Procedure,
[s]ummary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions,
affidavits, transcripts of evidence, and written stipulations of fact,
if any, timely filed in the action, show that there is no genuine issue
of material fact and that the moving party is entitled to judgment
as a matter of law * * *. A summary judgment shall not be
rendered unless it appears from the evidence or stipulation, and
only from the evidence or stipulation, that reasonable minds can
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come to but one conclusion and that conclusion is adverse to the
party against whom the motion for summary judgment is made,
that party being entitled to have the evidence or stipulation
construed most strongly in the party's favor.
Civ.R. 56(C). “The party moving for summary judgment has the initial burden ‘to
inform the trial court of the basis for the motion, identifying the portions of the
record, including the pleadings and discovery, which demonstrate the absence of a
genuine issue of material fact.’” Middleton v. Holbrook, 3d Dist. Marion No. 9-15-
47, 2016-Ohio-3387, ¶ 8, quoting Reinbolt v. Gloor, 146 Ohio App. 3d 661, 664,
767 N.E.2d 1197 (3d Dist.2001).
{¶6} “The burden then shifts to the party opposing the summary judgment.”
Id. “In order to defeat summary judgment, the nonmoving party may not rely on
mere denials but ‘must set forth specific facts showing that there is a genuine issue
for trial.’” Hancock Fed. Credit Union v. Coppus, 54 N.E.3d 806, 2015-Ohio-5312,
¶ 14 (3d Dist.), quoting Byrd v. Smith, 110 Ohio St. 3d 24, 2006-Ohio-3455, 850
N.E.2d 47, ¶ 10, quoting Civ.R. 56(E). “[B]ecause summary judgment is a
procedural device to terminate litigation, it must be awarded with caution.” Murphy
v. Reynoldsburg, 65 Ohio St. 3d 356, 358-359, 604 N.E.2d 138 (1992). “The court
must thus construe all evidence and resolve all doubts in favor of the non-moving
party, here Plaintiffs.” Webster v. Shaw, 63 N.E.3d 677, 2016-Ohio-1484, ¶8 (3d
Dist.), citing Murphy at 358-359. “The court must thus construe all evidence and
resolve all doubts in favor of the non-moving party * * *.” Id., citing Welco
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Industries, Inc. v. Applied Cos., 67 Ohio St. 3d 344, 346, 617 N.E.2d 1129 (1993).
{¶7} R.C. 2745.01, which is Ohio’s employer intentional tort statute, reads,
in relevant part, as follows:
(A) In an action brought against an employer by an employee * *
* for damages resulting from an intentional tort committed by the
employer during the course of employment, the employer shall
not be liable unless the plaintiff proves that the employer
committed the tortious act with the intent to injure another or
with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an
employer acts with deliberate intent to cause an employee to
suffer an injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety
guard * * * creates a rebuttable presumption that the removal or
misrepresentation was committed with intent to injure another if
an injury * * * occurs as a direct result.
R.C. 2745.01(A-C). With this provision, “the General Assembly intended to limit
claims for employer intentional torts to situations in which an employer acts with
the ‘specific intent’ to cause an injury to another.” Houdek v. ThyssenKrupp
Materials N.A., Inc., 134 Ohio St. 3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 24,
citing Kaminski v. Metal & Wire Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027,
927 N.E.2d 1066, ¶ 56; Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio
St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 26.
{¶8} R.C. 2745.01(A) appears to give two options for demonstrating this
specific intent: either “the employer committed the tortious act with [1] the intent to
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injure another or [2] with the belief that the injury was substantially certain to
occur.” R.C. 2745.01(A). However,
R.C. 2745.01(B) equates ‘substantially certain’ with ‘deliberate
intent’ to injure. Thus, the ‘two options of proof [under R.C.
2745.01(A)] become: (1) the employer acted with intent to injure
or (2) the employer acted with deliberate intent to injure.’
Kaminski at ¶ 55, quoting Kaminski v. Metal & Wire Prods. Co.,
175 Ohio App. 3d 227, 2008-Ohio-1521, 886 N.E.2d 262, ¶ 31 (7th
Dist.). ‘[W]hat appears at first glance as two distinct bases for
liability is revealed on closer examination to be one and the same.’
Rudisill v. Ford Motor Co., 709 F.3d 595, 602–603 (6th Cir.2013)
(describing R.C. 2745.01 as ‘a statute at war with itself’).
Hoyle v. DTJ Ents., Inc., 143 Ohio St. 3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 10.
{¶9} “Acting with the belief that an injury is ‘substantially certain’ to occur
is not analogous to wanton misconduct, nor is it ‘enough to show that the employer
was merely negligent, or even reckless.’” Roberts v. RMB Ents., Inc., 197 Ohio
App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263, ¶ 21, quoting Talik v. Fed. Marine
Terminals, Inc., 117 Ohio St. 3d 496, 2008-Ohio-937, 885 N.E.2d 204, ¶ 17. This
standard requires more than “mere knowledge of a hazardous condition.”
Thompson v. Oberlander’s Tree & Landscape Ltd., 2016-Ohio-1147, 62 N.E.3d
630, ¶ 20 (3d Dist.), quoting Broyles v. Kasper Mach. Co., 517 Fed.Appx. 345, 353
(6th Cir.2013), citing Houdek.
{¶10} Under Ohio law, “alleged deficiencies in training, safety procedures,
safety equipment, instructions, or warnings, have been found to show recklessness,
but are insufficient to create a genuine issue of material fact as to deliberate intent.”
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Meadows v. Air Craft Wheels, L.L.C., 8th Dist. Cuyahoga No. 96782, 2012-Ohio-
269, ¶ 18. McCarthy v. Sterling Chems., Inc., 193 Ohio App. 3d 164, 2011-Ohio-
887, 951 N.E.2d 441, ¶ 9, 14-15 (1st Dist.); Jefferson v. Benjamin Steel Co., Inc.,
5th Dist. Richland Nos. 09 CA 62 & 09 CA 75, 2010-Ohio-50, ¶ 112; Fickle v.
Conversion Technologies Intern., Inc., 6th Dist. Williams No. WM-10-016, 2011-
Ohio-2960, ¶ 48; Simonelli v. Fligner, 9th Dist. Lorain No. 11CA010098, 2012-
Ohio-6112, ¶ 9-10; Wright v. Therm-O-Link, 2016-Ohio-7840, --- N.E.3d ---, ¶ 31
(11th Dist.); Roberts, supra, at ¶ 26; Davis v. AK Steel, 12th Dist. Butler No.
CA2005-07-183, 2006-Ohio-596, ¶ 12. “[A]bsent a deliberate intent to injure
another, an employer is not liable for a claim alleging an employer intentional tort,
and the injured employee's exclusive remedy is within the workers' compensation
system.” Houdek at ¶ 2.
{¶11} “R.C. 2745.01(C) permits an employee to prove the employer’s intent
without direct evidence.” Hoyle at ¶ 10. If an employee can demonstrate that his
injuries resulted from the employer’s “deliberate removal” of an “equipment safety
guard,” then “R.C. 2745.01(C) creates a rebuttable presumption that the employer
intended to injure” the employee. Id. at ¶ 12. “Deliberate removal” has been
generally defined to mean “a deliberate decision to lift, push aside, take off, or
otherwise eliminate that guard from the machine.” Thompson at ¶ 21, quoting
Hewitt v. L.E. Myers Co., 134 Ohio St. 3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶
30. The Ohio Supreme Court has defined an “equipment safety guard” to mean “a
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device that is designed to shield the operator from exposure to or injury by a
dangerous aspect of the equipment.” Thompson at ¶ 20, quoting Hewitt at ¶ 26,
quoting Fickle at ¶ 43.
Legal Analysis
{¶12} On appeal, Williams makes four arguments against the trial court’s
decision to grant summary judgment. First, he argues that the parties dispute the
reasons he put his arm into the SSB160 machine. On appeal, Williams claims that
he reached into the SSB160 to clean out bottles that had fallen inside. He alleges
that this action was performed in accordance with his training and the instructions
he was given. The appellee, on the other hand, asserts that the depositions show
that Williams put his arm into the machine to clean what he believed to be a photo
eye. Appellee then argues that this sensor was actually a proximity eye, that wiping
down a proximity eye would not assist this component—or the machine—in
functioning better, and that reaching into this area of the SSB160 to clean this
proximity eye was not in accordance with Williams’s training.
{¶13} The question of whether Williams was acting in conformity with his
training at the moment he was injured is immaterial because this evidence, at best,
could be used at trial to establish that he was acting pursuant to inadequate training.
While this evidence could possibly establish that his employer was negligent,
reckless, or wanton, this showing cannot demonstrate that Williams’s employer
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possessed an intent to injure him. Thus, this alleged dispute cannot establish the
genuine issue of material fact necessary to defeat summary judgment.
{¶14} Second, Williams argues that the parties dispute whether he was
permitted to turn the SSB160 machine off before performing maintenance. Doc. 70
at 35, 52. Williams states in his depositions that he was in charge of the shop floor
that night and could have shut down the machine before reaching inside it but chose
not to do so. Id. at 57. Referencing these admissions on appeal, appellant correctly
concludes in his brief that “[w]hether the SSB160 was permitted to be shut down on
August 24, 2014 is irrelevant in determining liability in this case. The more
important fact * * * is how employees were trained to remove the bottles that had
fallen off of the tract * * *.” Appellant’s Brief, 14. Again, inadequate training or
safety procedures do not establish that an employer had the actual intent to injure
an employee. Wright v. Mar-Bal, Inc., 11th Dist. Geauga No. 11W001025, 2013-
Ohio-5647, ¶ 27-28.
{¶15} Third, Williams contends that the parties dispute how the employees
were trained to remove bottles from within the SSB160 machine. Williams’s third
argument against summary judgment directly addresses Williams’s training and
specifically charges that this training was inadequate. Even if the record shows that
this fact is contested, this evidence still does not present a disputed issue of material
fact as to whether the employer, ALPLA, had the specific intent required to commit
an intentional tort under R.C. 2745.01. Breitenbach v. Double Z Constr. Co., LLC,
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2016-Ohio-1272, 63 N.E.3d 498, ¶ 57 (5th Dist.). See Doc. 70 at 52-53, 60-61.
Compare Doc. 66 at 23, 64-65.
{¶16} Fourth, Williams argues that the parties dispute whether a steel plate
that prevented employee access into the machine was removed from the machine
and whether a shut off mechanism was in proper repair. Arguing the steel plate was
removed, Williams claims that this constitutes the removal of a safety mechanism
on the machine that demonstrates an intent to injure under R.C. 2745.01(C). While
the possibility exists that a steel plate was removed, we do not find evidence in the
record that establishes such a steel plate was ever in place on the SSB160, an
allegation that any such steel plate was a safety mechanism within the meaning of
R.C. 2745.01(C), or evidence that ALPLA deliberately removed any such steel
plate. The emails submitted as an appendix to the appellant’s brief were not
submitted to the trial court and, therefore, cannot be considered by this court in this
analysis. See Appellant’s Brief, Ex. C. The depositions also do not establish that a
shut off mechanism was located at the door through which Williams reached into
the machine. Doc. 67 at 34. Doc. 66 at 56. The depositions establish that a shut
off mechanism was connected to a different set of doors at another access point on
the SSB160. Doc. 67 at 33. Consequently, the documents and depositions
submitted to the trial court are not sufficient to establish that a dispute does, in fact,
exist over any issue of material fact or to raise the rebuttable presumption under
R.C. 2745.01(C).
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Conclusion
{¶17} In this case, Williams has not pointed to evidence that creates a
genuine issue of material fact as to whether the employer in this case possessed an
actual intent to injure Williams under R.C. 2745.01. Thus, summary judgment was
an appropriate means to dispose of this case, and Williams’s first and second
assignments of error are overruled. Having found no error prejudicial to the
appellant in the particulars assigned and argued, the judgment of the Allen County
Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON, P.J. and ZIMMERMAN, J., concur.
/hls
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