Summary
In Sanek v. Duracote Corp., 43 Ohio St.3d 169, 539 N.E.2d 1114 (1989) an employee suffered a traumatic amputation of his hand when it became caught in an industrial mixing machine.
Summary of this case from Harn v. Continental Lumber Co.Opinion
No. 88-434
Submitted March 28, 1989 —
Decided June 14, 1989.
Workers' compensation — Intentional tort — Facts insufficient to go to jury, when — Guard never previously required for moving shaft of industrial mixer.
APPEAL from the Court of Appeals for Portage County, Nos. 1635 and 1706.
An intentional tort action was filed on March 17, 1983 by appellee, Richard Sanek, against his previous employer, appellant, Duracote Corporation, in the Court of Common Pleas of Portage County. The action arose out of an industrial accident which occurred on April 13, 1981. The intentional tort issue was tried to a jury which returned a monetary verdict in favor of Sanek. The trial court overruled appellant's timely motions for directed verdict, for a judgment n.o.v., and for a new trial. The court of appeals affirmed.
The essential facts are not in dispute. Appellant is in the business of laminating fabric or paper with vinyl compounds. In 1976, the eighteen-year-old appellee started working as a fabricator for appellant at its Ravenna, Ohio, plant. On April 13, 1981, appellee was not needed in the fabrication department, so he worked in another area of the plant. He was assigned along with several others to work on the "horizontal machine," which is approximately one hundred fifty feet long, the width of a car, and used to apply vinyl coating to paper. At the front or "head" of the machine is a platform three feet high attached to a trough which must be kept filled with liquid plastisol, a vinyl coating compound. Once the machine is started, it is imperative that the trough be kept full or the coating will be defective. Appellee's job was to fill a pail with the plastisol from a nearby fifty-five gallon drum and place the pail on the platform of the horizontal machine for a co-worker to empty into the trough.
Before the plastisol can be poured into the trough, it must be premixed. This is done by clamping an industrial mixer onto the drum. Appellee was filling one pail from a drum of premixed plastisol when he heard a "clapping" noise in an adjacent drum that was under a mixer. Appellee was wearing heavy, black, insulated, elbow-length rubber gloves to protect his hands from staining by the sticky plastisol. The gloves were provided by Duracote but employees were not required to wear them. When he heard the clapping noise, appellee assumed that it was a propeller of the mixer hitting the side of the drum in which plastisol was being mixed. Usually, someone else corrected the problem by turning off the mixer's power source, but on this day appellee put his pail down and hit the rotating shaft of the mixer with his gloved but open right palm. He had never before grabbed the rotating shaft. Another witness had seen other workers do so. There is no evidence that appellee was instructed or required to hit the rotating shaft in any manner. There is also no evidence that any of the workers other than appellee were wearing the type of gloves that appellee was wearing at the time of his injury. Appellee's gloved hand became caught on the rotating shaft and he suffered a traumatic amputation of his lower right arm.
It is undisputed that Duracote designed the moveable frame upon which the industrial mixer was mounted so that the entire assembly could be rolled up to a drum to mix its contents. The frame had no safety guard for the rotating mixer shaft, nor were there any warning signs that might have alerted Sanek to the dangers of placing his gloved hand inside the mixer during its operations. The mixer and the detachable shaft were "Lightnin" models, whose general concept and design had been the same for thirty or more years. The "Lightnin" models dominated the industrial mixer market.
The particular mixer model at issue, purchased in 1957 from the Mixing Equipment Co., Inc., has a three-horsepower motor, with four hundred thirty-one RPM output. Its detachable, sixty-inch steel shaft has two fifteen-inch right-handed propellers attached at one end. A single button is used to start and stop the mixer.
Appellant had approximately ten other similar mixers in continuous use. Appellee testified that he used the mixers nearly every day from when he started working for appellant until his injury. It is undisputed that neither the appellant's employees nor anyone else had ever had an accident on the rotating shaft of a power mixer. It is also undisputed that a guard for the mixer was not commercially available, although after six months of trial and error following appellee's injury appellant was able to design and have fabricated a guard that shielded the rotating shaft but still allowed a worker to use the mixer in the manner required by appellant.
Appellant's president and production manager both testified that they were aware of the applicable Occupational Safety and Health Administration ("OSHA") and Ohio Industrial Commission manuals and that copies were kept on the premises. Appellee specifically cited OSHA's General Industry Handbook, Section 1910.212 (Part 1910, Title 29, C.F.R.), General Requirements for all Machines, which provides in pertinent part:
"(a) * * * One or more methods of machine guarding shall be provided to protect the operator and other employees in the machine area from hazards such as those created by point of operation, ingoing nip points, rotating parts, flying chips and sparks. Examples of guarding methods are — barrier guards, two hand tripping devices, electronic safety devices, etc."
The record shows that appellant had never been cited during numerous inspections by OSHA or the Industrial Commission for failure to provide a guard for the rotating shafts of this mixer or any other power mixers prior to appellee's injury. The record shows that appellant had been cited once by OSHA for failure to shield the pulley at the top of several small mixers, similar to a drill, used to mix small amounts of paint and quart-size samples of materials. The speed of these mixers had been controlled by changing the belts on the pulleys. OSHA required the appellant to cease that practice and to shield the pulley system, which appellant did. Duracote was not directed to shield the mixing shaft of the mixers. At trial, appellee's expert opined that the rotating shaft of the power mixer should have been guarded and "somebody will be injured by that rotating part. Over a period of time. [ Sic.]"
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Amer, Cunningham Brennan Co., L.P.A., Richard T. Cunningham, Jack Morrison, Jr., and John C. Weisensell, for appellee.
Gallagher, Sharp, Fulton Norman and Robert H. Eddy, for appellant.
The principal issue before this court is whether the facts in the record are sufficient, as a matter of law, to allow the issue of whether the employer committed an intentional tort to go to a jury. We hold that the facts are insufficient and we reverse the appellate court.
Appellee's intentional tort action must be determined according to the standards set forth in the fifth and sixth paragraphs of the syllabus to Van Fossen v. Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, as follows:
"Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser Keeton on Torts (5 Ed. 1984), in order to establish `intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (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 not just a high risk; 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.
"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. Where the risk is great and 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. ( Blankenship v. Cincinnati Milacron Chemicals, Inc. , 69 Ohio St.2d 608, 23 O.O. 3d 504, 433 N.E.2d 572; and Jones v. VIP Development Co., 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046, explained.)"
As Justice Herbert Brown stated in Kunkler v. Goodyear Tire Rubber Co. (1988), 36 Ohio St.3d 135, 522 N.E.2d 477, a case decided the same day as Van Fossen, the standard for establishing an intentional tort "emerges not so much from the words used to formulate the test as it does from the decisions rendered in response to specific fact situations. Such is the nature of the common law." Id. at 139, 522 N.E.2d at 481.
In a case such as this, the employee at all times has the burden to demonstrate that the employer had knowledge amounting to substantial certainty that an injury would take place. Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124, 127, 522 N.E.2d 511, 514. The focus of an intentional tort action under the standards set forth in Blankenship, Jones and Van Fossen, supra, is on the knowledge of the employer regarding the risk of injury. The 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. Van Fossen, supra, at 112, 522 N.E.2d at 501 (criticizing Serna v. Statewide Contractors, Inc., 6 Ariz. App. 12, 429 P.2d 504). Appellant essentially argues that the trial court erred in not directing a verdict in its favor at the close of the evidence, and in not granting a judgment n.o.v. after the jury returned a verdict for plaintiff. The standard for granting a directed verdict and a judgment n.o.v. is the same. McNees v. Cincinnati Street Ry. Co. (1949), 152 Ohio St. 269, 40 O.O. 318, 89 N.E.2d 138. The intentional tort issue goes to a jury only if there is probative evidence which, if believed, would permit reasonable minds to come to different conclusions as to the essential issue of the case. The court must not weigh the evidence or the credibility of the witnesses. The test for granting a directed verdict or a judgment n.o.v. is whether the movant is entitled to judgment as a matter of law when the evidence is construed most strongly in favor of the non-movant. See Pariseau, supra, at 127, 522 N.E.2d at 514. See, also, Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O. 3d 115, 430 N.E.2d 935.
As stated above, it is undisputed that prior to the accident appellant was never cited or ordered by OSHA inspectors to provide a guard for the moving shafts of these particular industrial mixers. Appellant could hardly be expected to have anticipated the actions of appellee which led to his injury. Analyzing the totality of the circumstances, appellant's actions under the facts in this case simply do not rise to the level of risk-exposure of appellee so egregious as to constitute an intentional wrong. The facts in this case, construed most strongly in favor of appellee, do not permit reasonable minds to conclude that the requirements of proving an intentional tort by Duracote were met. Nor would a cause of action lie under a simple common-law action for a tort premised on intentional misconduct by a tortfeasor.
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.
Cf. Pratt v. National Distillers Chemical Corp. (C.A. 6, 1988), 853 F.2d 1329 (reversing the trial court's grant of a judgment n.o.v. because sufficient facts existed to allow the issue of an intentional tort to go to the jury). In Pratt, the management had circulated memoranda acknowledging the explosion hazards involved in a chemical manufacturing process using filter presses wherein previous explosions had occurred. Despite this knowledge, management assured workers that the process was safe while failing to provide a procedure to ensure that workers would use the correct ingredients necessary to remove the explosive product from the filter presses.
Such probative facts obviously do not exist in this case.
Accordingly, appellant's first and second propositions of law as to the propriety of a directed verdict and judgment n.o.v. are well-taken and we reverse the judgment of the court of appeals.
Because of our disposition of those propositions of law, we need not address appellant's two remaining propositions of law.
This cause is remanded to the trial court for entry of final judgment in favor of appellant.
Judgment reversed and cause remanded.
MOYER, C.J., HOLMES and H. BROWN, JJ., concur.
SWEENEY, DOUGLAS and RESNICK, JJ., dissent.