COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60685 LINDA MILAM : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION TRI COUNTY EXCAVATING : : Defendant-appellee : : DATE OF ANNOUNCEMENT : MAY 21, 1992 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-169376 JUDGMENT : REVERSED AND REMANDED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: TIMOTHY J. DELANEY, ESQ. MICHAEL J. BERTSCH, ESQ. SCULLY & DELANEY JOHN C. TILLMAN, ESQ. Rockefeller Bldg., Suite 662 ARTER & HADDEN 614 Superior, West 1100 Huntington Bldg. Cleveland, OH 44113 Cleveland, OH 44115 - 2 - PATTON, J. This case involves an intentional tort claim filed by plaintiff-appellant Linda Milam in her capacity as Administratrix of the Estate of Tony Milam, Sr. ("appellant") against Tony Milam's employer, Tri-County Excavating, Inc., defendant-appellee herein. In her complaint appellant alleged that appellee will- fully removed, disconnected and/or made inoperable the brakes on the front axle of a tri-axle dump truck knowing that injury was substantially certain to result from disengaging the front axle brakes. The following relevant facts are contained in the record. On May 13, 1988, appellant's decedent was operating a 1980 Mack tri-axle dump truck in the course and scope of his employment as 1 a truck driver for the appellee. After picking up a load of gravel, the decedent descended Sherman Road in the City of Gates Mills, Ohio. Upon reaching the intersection of Chagrin River Road the decedent failed to stop his vehicle and as he attempted to negotiate a right turn the vehicle rolled over. When the truck was raised by rescue workers the decedent's body was discovered beneath the truck. The Mack dump truck was manufactured on January 23, 1980. Appellee purchased the truck in a used condition at an auction on April 23, 1984. It is uncontroverted that the truck was manufac- 1 The term "tri-axle" refers to a truck with three rear axles and one front axle. - 3 - tured with front brakes but they had been disconnected by a previous owner. Following the accident an inspection by Junior Jay from G&M Auto Towing revealed that the rear brakes were severely worn and that the travel rods connecting the slack adjusters to the air pancakes on the rear brakes were greatly extended indicating that the rear brakes were out of adjustment. Further, an affidavit of Art Grimm, a professional truck driver and licensed truck driving instructor, stated that the absence of front wheel brakes coupled with severely worn rear brakes results in a lack of braking ability. Based on the evidence before it the trial court granted summary judgment in favor of appellee. The trial court's Septem- ber 24, 1990 journal entry provided, "[Appellant] failed to produce any facts which proved that def[endant] had any 'delibe- rate intent' to injure, harm or endanger the deceased. While there may be some evidence of negligence, such evidence failed to satisfy the requirement of R.C. 4121.80, et seq." From this adverse ruling the appellant brought the instant appeal on October 22, 1990. Appellant's two assignments of error are interrelated and will be discussed together. They provide: I. AS A MATTER OF LAW, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT- APPELLEE ON THE ISSUE OF WHETHER OR NOT THE PLAINTIFF-APPELLANT SUFFERED AN INTENTIONAL TORT COMMITTED BY DEFENDANT-APPELLEE, WHERE EVIDENCE SHOWS THAT DEFENDANT-APPELLEE'S ACTIONS WERE SUBSTANTIALLY CERTAIN TO CAUSE - 4 - INJURY TO THE DECEDENT, AN EMPLOYEE OF DEFEN- DANT-APPELLEE. II. AS A MATTER OF LAW, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT- APPELLEE ON THE ISSUE OF WHETHER OR NOT THE PLAINTIFF-APPELLANT SUFFERED AN INTENTIONAL TORT COMMITTED BY DEFENDANT-APPELLEE, WHEN EVIDENCE SHOWED THAT DEFENDANT-APPELLEE VIO- LATED OHIO ADMINISTRATIVE CODE 4901:2-5-06, THEREBY GIVING RISE TO A REBUTTABLE PRESUMP- TION IN PLAINTIFF-APPELLANT'S FAVOR THAT AN INTENTIONAL TORT HAD BEEN COMMITTED. For the purpose of our analysis we will initially discuss the appellant's second assignment of error first. In the second assignment of error, appellant argues the appellee's failure to render the front brakes operable constituted a "deliberate removal by the employer of any equip- ment safety guard", thereby giving rise to a rebuttable presump- tion that the employer intended the decedent's injury pursuant to R.C. 4121.80(G)(1). For the following reasons appellant's argument lacks merit. On August 27, 1991, the Supreme Court of Ohio struck down R.C. 4121.80 and declared that it was unconstitutional in its entirety. Brady v. Safety-Kleen Corp. (1991), 61 Ohio St. 3d 624. Additionally, this court in Koziol v. Quality Stamping Products (Mar. 5, 1992), Cuyahoga App. No. 59941, unreported, sanctioned the retrospective application of the Brady v. Safety- Kleen Corp. decision to a case which was pending appeal at the time the decision came down from the Supreme Court. - 5 - Thus, Brady, supra, is applicable to the instant case which was pending appeal at the time R.C. 4121.80 was declared uncon- stitutional. Koziol, supra. In light of the fact that R.C. 4121.80 has been declared unconstitutional in its entirety, appellant's arguments concerning the rebuttable presumption contained in R.C. 4121.80(G)(1) lack merit. Accordingly, appel- lant's second assignment of error is overruled. In the first assignment of error appellant argues that the appellee knew that harm to the decedent was substantially certain to occur where the appellee permitted the decedent to operate a loaded dump truck with disconnected front brakes. Thus, appel- lant contends there was a genuine issue of whether appellee committed an intentional tort. For the following reasons, appellant's argument has merit. The standard for establishing an intentional tort of an employer is set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St. 3d 115. Therein, the court stated: Within the purview of Section 8(A) of the Restate- ment of the Law 2d, Torts, and Section 8 of Pros- ser & 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 (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to - 6 - perform the dangerous task. (Van Fossen v. Bab- cock & Wilcox Co. [1988], 36 Ohio St. 3d 100, 522 N.E. 2d 489, paragraph five of the syllabus, modified as set forth above and explained.) Id., paragraph one of the syllabus. Further, the court stated: To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be estab- lished. Where the employer acts despite his knowledge of some risk, his conduct may be negli- gence. As the probability increases that particu- lar 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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St. 3d 100, 522 N.E. 2d 489, paragraph five of the syllabus, modified as set forth above and ex- plained.) Id., paragraph two of the syllabus. In the instant case, the decedent was employed as a truck driver by the appellee. On May 13, 1988, the decedent was operating a 1980 Mack tri-axle dump truck in the course and scope of his employment. After picking up a load of gravel and while descending Sherman Road the vehicle's brakes failed. As a result the decedent was unable to stop his vehicle and as he attempted to negotiate a right turn the vehicle rolled over, killing him. The Mack dump truck was manufactured in 1980 with front brakes. Appellee purchased the truck in a used condition at an auction on April 23, 1984. Although the truck was originally - 7 - manufactured with front brakes the appellee acknowledged that the brakes were disengaged at the time of its purchase in 1984 and that the front brakes were inoperable on the date of the lethal accident. Upon motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that material facts are not in dispute, and that no genuine issue of fact exists, is on the party moving for summary judgment. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St. 2d 64. Moreover, in reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317. In construing all the facts within the record that were before the trial court in a light most favorable to the appel- lant, we find that reasonable minds could differ concerning whether an intentional tort had been committed by the employer against its employee. Specifically, was the resultant injury substantially certain to occur. Therefore, we conclude that a genuine issue of fact exists which should be presented to the trier of fact. Accordingly, the grant of summary judgment in favor of the appellee is reversed and the cause is remanded for further pro- ceedings. - 8 - 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. DAVID T. MATIA, C.J. JOHN F. CORRIGAN, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .