COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61250 : ALEC ALSTON : : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION CLEVELAND METAL STAMPING COMPANY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 187345 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: JOHN E. DUDA, ESQ. TERESA G. STANFORD, ESQ. 330 Western Reserve Building Law Offices of Jan A. Saurman 1470 West Ninth Street 14650 Detroit Avenue Cleveland, Ohio 44113 Suite 450 Lakewood, Ohio 44107-9946 - 2 - HARPER, J.: This matter is before the court on appeal from the Cuyahoga County Court of Common Pleas which granted defendant-appellee, Cleveland Metal Stamping Company's (Cleveland Metal) motion for summary judgment. We affirm. Appellant, Alec Alston, sets forth the following issues for our consideration: "WHERE PLAINTIFF-APPELLANT PUT FORTH SUFFICIENT EVIDENCE THAT THE DEFENDANT-APPELLEE COMMITTED AN INTENTIONAL TORT UNDER O.R.C. 4121.80, IT IS ERROR FOR THE TRIAL COURT TO GRANT DEFENDANT CLEVELAND METAL STAMPING COMPANY'S MOTION FOR SUMMARY JUDGMENT. "A. FIRST ISSUE PRESENTED "WHETHER DEFENDANT-APPELLEE'S ACTS AND OMISSIONS CONSTITUTED SUCH INTENT TO INJURE PLAINTIFF-APPELLANT IN VIOLATION OF O.R.C. 4121.80. "B. SECOND ISSUE PRESENTED "WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT WHEN PLAINTIFF ESTABLISHED A PRESUMPTION THAT DEFENDANT COMMITTED AN INTENTIONAL TORT UNDER 4121.80(g) WHICH THE DEFENDANT FAILED TO REBUT. "C. THIRD ISSUE PRESENTED "WHETHER O.R.C. 4121.80 IS UNCONSTITUTIONAL AS VIOLATIVE OF THE DUE PROCESS AND EQUAL PROTECTION RIGHTS OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AS WRITTEN AND APPLIED." II. The facts giving rise to this appeal are as follows. Alec Alston was hired by Cleveland Metal in October of 1988. Alston was trained to operate the punch presses which were used to stamp auto parts. On April 4, 1989, Alston was injured when the press 1/ he was operating double stroked. His injury resulted in a 1/ Double stroking occurs when the press ram repeats the stamping process when it should only stamp once. - 3 - partial amputation of his thumb. Prior to Alston's injury, he had operated the same machine the previous day without injury. He stated in a deposition that two other employees were injured when the press they were using double stroked. However, the machine that caused his injury was not the same machine that caused injuries to the other two employees. There is no evidence that any employee had been injured by the press that caused Alston's injury. Alston stated in a deposition that his employers knew of the double stroking of the presses and installed safety devices on all but the press that injured him. He could not remember the last time the press that caused his injury double stroked, but he remembered informing his supervisor about the double stroking and was told to be careful. Alston did not have any problem with the machine on the morning of his injury until he returned from his lunch break. Alston's injury qualified him to receive Workers' Compensation benefits. The record shows that an inspection by the Cleveland area office of the Occupational Safety and Health Administration (OSHA) revealed that Cleveland Metal violated certain OSHA regulations but the record is unclear what relationship the violations have to Alston's injury. In Alston's six month's employment with Cleveland Metal, he had never refused to work on the presses due to his belief of their being unsafe. He was never threatened with termination for refusing to operate what he considered an unsafe press. - 4 - III. Appellant argues in his sole assignment of error that he has put forth sufficient facts to establish appellee's intent to injure, thereby rendering summary judgment inapplicable. The Court in Lewkowski v. Goodwin (Oct. 3, 1988), Lake App. No. 13- 097, unreported, held: "It is well established that summary judgment is to be used cautiously, and is to be granted only when the court is convinced that there are no genuine issues of material fact in dispute; that the moving party is entitled to judgment as a matter of law; and that, construing the evidence most strongly in favor of the nonmoving party, reasonable minds could come to but one conclusion and that conclusion is in favor of the moving party. Thus, if any genuine issues of material fact are in dispute, summary judgment must be denied." (Citations omitted.) See also Morris v. Ohio Cas. Ins. Co. (1988), 35 Ohio St.3d 45, 517 N.E.2d 904; Noll v. Nezbeth (1989), 63 Ohio App.3d 46, 51- 52. The law, therefore, is settled in Ohio that summary judgment shall not be granted pursuant to Civ. R.56(C): "*** [U]nless it appears from such evidence *** that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor." Appellant's right to bring an action against his employer is provided by R.C. 4121.80(A), which reads in pertinent part: "Intentional tort claims; fund. "(A) If injury, occupational disease, or death results to any employee from the intentional tort of his employer, the employee or the dependents of a deceased employee have the right to receive workers' compensation benefits under Chapter 4123. of the Revised Code and have a cause of action against the employer for an excess of damages over the amount - 5 - received or receivable under Chapter 4123. of the Revised Code and Section 35 of Article II, Ohio Constitution, or any benefit or amount, the cost of which has been provided or wholly paid for by the employer." R.C. 4121.80(G)(1) defines intentional act as follows: "(G) As used in this section: "(1) 'Intentional tort' is an act committed with the intent to injure another or committed with the belief that the injury is substantially certain to occur. "Deliberate removal by the employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may be rebutted, of an act committed with the intent to injure another if injury or an occupational disease or condition occurs as a direct result. "'Substantially certain' means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death." The Ohio Supreme Court stated in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117, 522 N.E.2d 489, that evidence of "proof of the actual or subjective intent of the actor (employer) to accomplish the consequences is not required". But the same court enunciated the degree of proof required to establish that an employer has committed an intentional tort against an employee in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, paragraphs two and three of the syllabus, when it held that: "1. 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 - 6 - 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. (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 explained.) "2. 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. As 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 (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph six of the syllabus, modified as set forth above and explained.)" See also Horvath v. The National Machinery Co. Inc. (Mar. 26, 1992), Cuyahoga App. No. 61378, unreported. In the case sub judice, it is unquestionably clear that Cleveland Metal had some degree of knowledge and appreciation of the risk of harm presented by its press machines as evidenced by the company's placement of safety devices on all but one of its press machines, and the company's actual knowledge that two employees were previously injured. However, in following the reasoning of the Fyffe court, supra, mere knowledge and - 7 - appreciation of a risk ***" something short of substantial certainty" does not amount to a showing of intent on the employer's part. See also Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124. The record shows that neither appellant nor any other employee was required to work on any machine which the employees deemed unsafe. See Fyffe, supra, paragraph one of the syllabus, at element three. Appellant stated that he was informed by his supervisor to be careful, a further indication that the element of "intent" to injure was lacking. See Strutz v. First National Supermarkets Inc. (Mar. 28, 1991), Cuyahoga App. No. 58222, unreported (where testimony revealed that the employer told his employees to be careful, and this court stated: "this admonishment could be construed to show that Mr. Campagna specifically did not want his employees to be injured.") Since appellant also failed to present any evidence of any incidents tending to show that the press on which he was working, and which injured him, was known to the employer or its agents to have malfunctioned, no genuine issues of material fact was created. See Curtad v. Whirlpool Corp. (1989), 48 Ohio App.3d 200, 549 N.E.2d 566. Appellant further argues that Cleveland Metal's failure to comply with OSHA regulations created a dangerous condition which should be construed as an intent to cause injury. We disagree. OSHA violation could in a proper case constitute an intent to injure within the provision of R.C. 4121.80(A) and case law. - 8 - However, in the within case, the OSHA citations were too unclear as to its relationship to the press machines to be given such a sweeping conclusion. We cannot conclude as a matter of law as appellant would want us to, that a violation of OSHA regulations in and of themselves amounts to an intent to injure. The party seeking to use OSHA regulations to prove intent to injure pursuant to R.C. 4121.80, must show that the employer ignored an OSHA citation which presents a danger to employees of an instrumentality or condition if not corrected and allowed employees to operate under the known danger. Employer's conduct under such circumstances would be tantamount to an intent to injure, and would be actionable. OSHA violations in and of themselves are not per se an intent to injure. See Dickston v. Southern Ohio Fabricators, Inc. (Feb. 12, 1990), Cutler App. No. 89-07-107, unreported. In the within case, the OSHA citation came six months after appellant's injury and there is no clear link between the injury and the violations. IV. Appellant, in his final argument, contends that R.C. 4121.80 is unconstitutional as written and applied because it violates the due process and equal protection rights of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. Appellant argues that the statute as written is confusing and gives an injured citizen no right to pursue a claim as the third paragraph of section (G) retracts the right given in the first paragraph of the same section. We agree. - 9 - The constitutionality of R.C. 4121.80 has been decided by the Ohio Supreme Court in Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 576 N.E.2d 722, and the law is thus settled that "R.C. 4120.80 exceeds and conflicts with the legislative authority granted the General Assembly pursuant to Sections 34 and 35, Article II of the Ohio Constitution, and is unconstitutional in toto." Id. at syllabus. See also Ulman v. Clyde Super Valu (1989), 62 Ohio App.3d 858. However, the constitutionality of R.C. 4120.80 notwith- standing, appellant has failed to show that his employer intentionally caused his injury, and although we agree with appellant's constitutionality argument, we affirm the trial court's judgment. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. Exceptions. BLACKMON, J., CONCURS; DYKE, P.J., CONCURS IN JUDGMENT ONLY. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .