COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67406 and 67604 CAROL J. SHANNON, ADMINISTRATRIX: : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION WACO SCAFFOLDING & EQUIPMENT, : ET AL. : : Defendant-appellees : : DATE OF ANNOUNCEMENT : JULY 27, 1995 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-238853 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: DENNIS J. BARTEK, ESQ. DAVID ROSS, ESQ. Suite E KENNETH P. ABBARNO, ESQ. 2300 East Market Street THOMAS R. WOLF, ESQ. Akron, OH 44313 Reminger & Reminger Co. The 113 St. Clair Bldg. SAMUEL J. GELFO, ESQ. Cleveland, OH 44114 Suite 1 4884 Dressler Road, N.W. JOSEPH W. PAPPALARDO, ESQ. Canton, OH 44718 SHIELA A. McKEON, ESQ. Gallagher, Sharp, Fulton & Norman 7th Fl., Bulkley Bldg. 1501 Euclid Avenue Cleveland, OH 44115 - 2 - PATTON, C.J. Defendant Advanced Athletic Systems employed decedent Louis Shannon as a supervisor in charge of removing large moving doors that divided the gymnasium of a junior high school. The doors moved on tracks attached to I-beams on the ceiling of the gymnasium. In order to reach the top of the twenty-foot tall doors, decedent and his crew used a tubular rolling scaffolding tower built with equipment manufactured and leased by defendant WACO Scaffolding & Equipment Co. The workers followed a uniform process for removing each door. The workers unhinged a door and wrapped it with a chain. The chain was wrapped through a clamp attached to the door. The door would be lowered with the aid of a rope block. The workers would unchain the door and hoist the chain and clamps to the top of the scaffold by using the rope block. When one of the workers experienced some difficulty removing a door, decedent joined the worker on top of the scaffolding. They successfully removed the door and lowered it to the workers on the floor. Decedent moved the rope block to the top of the scaffolding without telling the workers on the floor. When they hoisted the chain and clamps, the tower toppled, sending decedent and the worker to the floor. Decedent died as a result of the injuries he suffered in the fall. None of the workers could explain what caused the tower to fall. - 3 - 1 Decedent's estate filed an action against WACO and Advanced , asserting claims sounding in intentional tort, products liability, negligence, nuisance, and wrongful death. Advanced filed a motion for summary judgment in which it argued the estate had failed to present facts showing Advanced had committed an intentional tort. The trial court granted summary judgment without opinion. The case proceeded to trial against WACO. At the close of the estate's case, the trial judge directed verdicts on the claims of negligence per se, nuisance and punitive damages. The jury returned a verdict in WACO's favor, finding it negligent in failing to warn decedent, but although negligent, its failure to warn did not proximately cause decedent's death. The estate sets forth five assignments of error which challenge issues relating to the admission of expert testimony, the jury charge, the directed verdicts, hearsay evidence and the summary judgment rendered in Advanced's favor. I. The first assignment of error contains several arguments relating to the testimony of Francis Koughan, the vice-president and general manager of Lynn Ladder & Scaffolding Company, who gave expert testimony on the use of a scaffold. The estate filed a motion in limine seeking to exclude Koughan from testifying as an expert since he had no mechanical or engineering qualifications. 1 The estate had also named Safway Steel Products as a defendant, but dismissed its claims against Safway prior to trial. - 4 - The court denied the motion and allowed Koughan to express an opinion as to what caused the scaffold to fall and whether the total height of the tower caused the scaffold to topple. A. The estate first argues the court abused its discretion by allowing Koughan to express opinions based upon engineering principles, physics and the adequacy of warning labels. It maintains he lacked any qualifications which would allow him to testify in that capacity. Evid. R. 702 governs the admissibility of testimony by experts and provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. A threshold determination must be made under Evid.R. 104(A) concerning the witness' qualifications. Scott v. Yates (1994), 71 Ohio St.3d 219, 221. The witness need not be the best available witness on the subject matter, but must demonstrate some knowledge on the particular subject superior to that possessed by an ordinary juror. Id.; State Auto Mut. Ins. Co. v. Chrysler Corp. (1973), 36 Ohio St.3d 151, 160. We review rulings admitting expert testimony for an abuse of discretion. Alexander v. Mt. Carmel Med. Ctr. (1978), 56 Ohio St.2d 155, 157. An abuse of discretion connotes 2 Evid.R. 702 was amended effective July 1, 1994, several days following the trial in this case. -5- more than an error of law or judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. The trial court did not abuse its discretion by allowing Koughan to testify as an expert witness because his qualifications demonstrated he possessed knowledge, skill and experience that would assist the jury to determine issues relating to the claims sounding in products liability and negligence. Koughan testified he has been in the scaffolding business for over thirty-four years, in jobs ranging from a laborer charged with the erection of scaffolding to managing the day-to-day operations of the 3 scaffolding division of a company. He belongs to several professional organizations related to scaffolding, equipment rental and the construction industry, and has served as president of the Scaffold Industry Association. He testified he had familiarity with governmental regulations relating to the use of scaffolding, including rolling towers like the one used in this case. Finally, he demonstrated knowledge of federal and state occupation and health safety standards relating to scaffolding. These qualifications gave him knowledge on the subject of scaffolding superior to that possessed by the ordinary juror. State Auto Mut. Ins. Co. v. Chrysler Corp., supra. Although 3 Koughan testified the term "scaffolding" is a generic term which encompasses a wide variety of elevated work platforms. As examples, Koughan cited construction site frames used for pouring concrete, window washing platforms and elevated basket lifts. -6- Koughan did not have specialized training in the mechanical principles relating to the structural design of scaffolding, nothing in the record suggests these principles would not be self- evident to a person with Koughan's experience in the field. Lack of formal training in a discipline is not necessarily an impediment to qualifying a person as an expert in a field if the trial court can find the witness has experience and knowledge that override any educational deficiencies. See, e.g., State v. Gaines (1992), 82 Ohio App.3d 467, 472. While there may have been other persons more qualified to express an opinion on the mechanical aspects of tubular rolling scaffolding, WACO was not required to present the best witness on that subject. Scott, supra. As with most determinations of this sort, they depend almost exclusively on the facts presented to the trial court. On the facts presented here, we find the trial court did not abuse its discretion by allowing Koughan to testify as an expert. B. During his direct examination, Koughan stated his opinion the tower did not topple because of its height; additional stabilizing support structures were not necessary to secure the tower; appropriate warning labels were affixed to the tower; and WACO's literature gave clear and correct information relating to the safe erection and use of the scaffolding. The estate argues the trial court abused its discretion by permitting Koughan to express these ultimate conclusions as his expertise does not extend to any of -7- these issues because they required a grounding in scientific method. The estate incorrectly assumes Koughan's opinions needed to be based on some scientific methodology in order to be admissible as expert testimony. As noted previously, Evid.R. 702 requires the expert to demonstrate knowledge on the particular subject matter superior to that possessed by an ordinary juror. Scott, supra, at 221. While Koughan stated he did not use any scientific methodology in arriving at his opinions, neither did the estate demonstrate the necessity that he do so. In the absence of circumstances dictating a precise mathematical calculation, the trial court properly found Koughan's knowledge and experience in the field of scaffolding erection were a sufficient basis to enable him to express opinions. C. The estate next argues Koughan improperly based his opinion on the tower's stability by relying on the expert testimony of one of the estate's experts, Richard Harkness. The estate maintains it is error for one expert to base an opinion on the findings of another expert and, in any event, Koughan misinterpreted Harkness' conclusions. Evid.R. 705 states, "[t]he expert may testify in terms of opinion or inference and give his reasons therefore after disclosure of the underlying facts or data. The disclosure may be in response to a hypothetical question or otherwise." An expert witness may not express an opinion where it is based upon the -8- opinions, inferences and conclusions of other witnesses. Zelenka v. Indus. Comm. (1965), 165 Ohio St. 587, syllabus; Leichtamer v. American Motors Corp. (1981), 67 Ohio St.2d 456, 474. However, "*** it is within the discretion of the trial court to permit an expert witness to give an opinion based upon the assumption of the truth of the testimony which he has heard given by other witnesses without a hypothetical statement of the facts, where the witnesses are few and the testimony is not voluminous, complicated or confusing." Zelenka, supra, at 593. The trial court did not abuse its discretion by permitting Koughan to express an opinion based upon Harkness's conclusions because Koughan did not base his opinion on Harkness's findings. Harkness prepared a report which included a mathematical formula calculating the number of pounds of pressure required to topple the tower assuming different variables for base width and tower height. His report stated the tower would not have fallen if it had been stabilized with outrigger supports. On cross-examination, the estate asked Koughan whether he disagreed with Harkness's formula. Koughan said he did not disagree. The estate points to the following line of questioning: Q. He [Harkness] testified if the base had been broadened or outriggers had been used to bring it [the tower] into compliance, that would have been doubled, the restoring moment? A. That was the word he used. -9- Q. And he testified if that had occurred, if the restoring moment had been doubled, the scaffold would not have tipped? A. He didn't say that. He said if that had been widened out, it still would have come over. Q. That's your recollection? A. Yes. Counsel told Koughan that Harkness had testified at trial and asked whether Koughan had obtained Harkness's deposition testimony from WACO's counsel. When WACO objected, counsel for the estate told the court he was trying to impeach Koughan. The trial judge went off the record and called the parties to the sidebar. When back on the record, Koughan stated his opinions were not based upon any testimony in the courtroom, but were based entirely upon depositions. Koughan did not base his opinion solely upon Harkness's deposition testimony, but merely stated his recollection that Harkness had not concluded the tower would not have fallen if stabilized with outriggers. Our review of the deposition testimony confirms Koughan's recollection. Harkness testified it was more probable the tower would not be pulled down if stabilized with outriggers, but sufficient force exerted on the tower could cause it to topple, even if stabilized. He clearly did not say the tower would not fall if stabilized. Consequently, Koughan did not base any opinion on Harkness's conclusions, but merely stated his recollection of those conclusions. -10- D. William Boden, the owner of Advanced Athletic Systems, testified he did not receive any safety literature from WACO. Koughan testified Boden must have received the safety literature since he had signed for the literature. The estate maintains the trial court abused its discretion by allowing Koughan's testimony since his speculation that Boden had received the safety literature amounted to an improper expert opinion as to Boden's veracity. Nothing in Koughan's testimony can be construed as an expert opinion on Boden's veracity. During cross-examination, Koughan testified as follows: Q. You know from reading [Boden's] deposition he denies receiving any literature from WACO except for one time in 1984 when he initially purchased the scaffolding? A. That's correct. Q. At least you formulated at the time of your deposition, you did not believe Mr. Boden when he said he had not received the safety literature? A. No. From other things I had seen in my investigation that Mr. Boden has signed for on numerous occasions, the safety information. Therefore, I know it's a safe assumption he did receive it. Q. To that extent, you came to the conclusion Mr. Boden was not forthright in his deposition about receiving the safety literature? A. Or his recollection was faulty. -11- As a general matter, an expert witness may not testify to the veracity of another witness because it invades the province of the trier of fact. McKay Machine Co. v. Rodman (1967), 11 Ohio St.2d 77, 82; State v. Boston (1989), 46 Ohio St.3d 108, 129. "The jury can accept all, a part or none of the testimony offered by a witness whether it is expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the ultimate fact." McKay Machine Co., supra, at 82. This is because the trier of fact is the sole judge of the credibility of a witness. State v. Antill (1964), 176 Ohio St. 61, 67. A fair reading of the record shows counsel for the estate, not Koughan, specifically phrased Boden's denial that he had received the safety literature in terms of veracity. Indeed, only in response to the specific question whether Boden "was not forthright" about receiving the safety literature did Koughan state the facts as he perceived them and, when confronted with the difference between his testimony and that of Boden, guess that Boden had a faulty recollection of the facts. It is important to recognize Koughan did not express an expert opinion on Boden's veracity. He merely responded to a question by trying to reconcile Boden's denial of receiving safety literature with the estate's own evidence showing Boden had signed for safety information on several occasions. On these facts, we find the trial court did not abuse its discretion by permitting Koughan's answer. E. -12- Prior to trial, the estate filed a motion in limine seeking to prohibit any mention of height to base ratio for scaffolding towers as set forth by the Occupational Safety and Health Administration (OSHA) and other states. The federal government and forty-four states permit a height to base ratio of 4:1, meaning a tower with a five foot base cannot exceed a height of twenty feet. Five states, including Ohio, have a more restrictive ratio of 3:1. See Ohio Adm.Code 4121:1-3-10(G)(1). One state employs a 3.5:1 ratio. The estate argued any evidence of the less restrictive standards of other states would be unduly prejudicial since it might influence the jury to think Ohio's standard is too stringent. The trial court denied the motion, in part because the warning label on the scaffolding tower specifically mentioned the 4:1 ratio set forth in OSHA standards. The trial judge did not abuse his discretion by denying the motion because mention of other standards was an unavoidable consequence given the estate's claims concerning the warning label. In order for the jury to examine the content of the warning, it would necessarily discover Ohio has a more stringent height to base ratio than other states. Counsel for the estate said: *** if I can say, Judge, and if it helps Mr. Ross, it will be apparent from the label which I have marked as an exhibit. The label says the OSHA standard is four times. So it will be unavoidable. The jury will see that as a label. But I'm opposed to any argument that it is appropriate warning in Ohio. WACO did not argue Ohio's base to height ratio was inappropriate in view of the standards used by other jurisdictions. -13- As noted by counsel for the estate, the jury would have to see the OSHA standard when considering the failure to warn claim. We further note Koughan only made a brief reference to the standards of other states, and he gave no conclusions as to the efficacy of those standards. On these facts, we fail to see any undue prejudice from the mention of other safety standards. F. Finally, the estate complains the trial court erred by allowing Koughan to express his opinion that had decedent tied the tower off to one of the I-beams crossing the gymnasium ceiling, the tower would not have toppled. The estate maintains Koughan's opinion was prejudicial since tying the tower to an I-beam would have violated WACO safety instructions. Evid.R. 704 permits an expert to testify on an ultimate issue. In Koughan's expert opinion, he believed decedent's own negligence precipitated the accident. If Koughan's opinions on decedent's proper course of action with respect to erecting the tower conflicted with WACO's interests, we believe it would have been a proper subject of impeachment since it would have discredited WACO's warnings. As noted before, the trier of fact is free to disbelieve the testimony of an expert. One would think Koughan's inconsistent testimony would work to the estate's advantage. In any event, we find no abuse of discretion since Koughan's opinion fell within the purview of Evid.R. 704. The first assignment of error is overruled. II. -14- The second assignment of error complains of several errors relating to the jury instructions. -15- A. The estate first argues the trial court erred by instructing the jury on intervening and superseding cause related to decedent's failure to tie off the scaffold tower to one of the ceiling I- beams. Additionally, the estate argues the trial court erred by instructing the jury on foreseeable misuse. 1. The existence of intervening and superseding causes of injury can be a defense to tort actions. Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 269; R.H. Macy & Co. v. Otis Elevator Co. (1990), 51 Ohio St.3d 108, syllabus. Whether an intervening act breaks the causal connection between negligence and injury, thus relieving one of liability for his negligence, depends upon whether that intervening cause was a conscious and responsible agency which could or should have eliminated the hazard, and whether the intervening cause was reasonably foreseeable by the one who was guilty of the negligence. Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, paragraph one of the syllabus. The test is "*** whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor." Id., at 160. The issue of intervening causation generally presents a factual issue for the trier of fact since it involves a weighing of the evidence. Leibreich, supra, at 269. -16- The trial court did not err by submitting the issue of intervening cause to the jury because the evidence adduced at trial presented factual questions concerning decedent's negligence. In the opinion of WACO's expert, the tower fell because decedent had inexplicably attached the block pulley to the scaffold tower instead of the ceiling I-beam. When the workers on the gymnasium floor tried to raise the chain to the tower, they unknowingly pulled the tower over. Expert testimony indicated the workers pulling on ropes to raise the chains could have exerted enough force to cause the tower to fall, even had the tower been stabilized. Contrary to the estate's assertions, WACO did not argue the cause of the accident was decedent's failure to tie off the tower. The cause of the accident, as stated by Koughan, was "[t]he rope block itself being attached to the scaffold rather than to the bar joist is the proximate cause of this accident." WACO did argue the accident would have been averted had decedent followed his employer's instructions and tied off the tower (contrary to WACO's own policy) before attaching the block pulley to the tower. However, the cause of the accident is distinctly different than an act which may have averted the accident. Consequently, we find the court did not err by submitting the issue of intervening cause to the jury. -17- 2. The estate next argues the trial court erred by instructing 4 the jury on "foreseeable" misuse. It maintains WACO should have foreseen the possibility that loads might be applied to the top of the scaffold tower. In a products liability action, a defendant is provided with a complete defense if the plaintiff misused the product in an unforeseeable manner. Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 282 and fn. 3; State Farm Fire & Cas. Co. v. Chrysler Corp. (1988), 37 Ohio St.3d 1. This defense should be distinguished from an "unreasonable misuse," which is not a defense to a product liability action. See Calmes v. Goodyear Tire & Rubber Co. (1991), 61 Ohio St.3d 470, 476. We find the trial judge did not err by instructing the jury on unforeseeable misuse. Ordinarily, the trial court should give requested instructions if they are correct statements of law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591; Fertele v. Huettner (1971), 28 Ohio St.3d 54, syllabus. Trial testimony supported the instruction on unforeseeable misuse. We have previously noted WACO's expert believed decedent proximately caused the accident by attaching the pulley to the tower instead of the ceiling I-beam. In essence, the evidence indicated decedent used 4 Although phrased in terms of foreseeable misuse, a more apt term for purposes of this case would be unforeseeable misuse. -18- the tower as an anchor for the pulley, a use of a rolling scaffolding tower that reasonable minds could find unintended and unforeseeable. B. The estate complains the trial court erred when it failed to instruct the jury on the issues of negligence per se and nuisance. This issue is not properly before us because the trial court directed a verdict on both claims in WACO's favor. Consequently, the estate cannot raise as error the trial court's failure to instruct the jury on those claims since they were no longer part of the action. Absent a specific assignment of error relating to the 5 directed verdict on those claims, we find no error. C. During discussions relating to the special jury instructions proposed by the estate, the trial judge, over WACO's objection, indicated he would instruct on the element of proximate cause in accordance with the law set forth in Seley v. G.D. Searle & Co. (1981), 67 Ohio St.2d 192. The estate now complains the trial court failed to give the instruction despite its stated intent to do so. In Seley, the plaintiffs filed a products liability claim against the manufacturer of an oral contraceptive alleging a 5 Although we do not reach the issue of negligence per se, we note the supreme court has recently held, "[a] violation of the Occupational Safety and Health Act, Section 651 et seq., Title 29, U.S. Code, does not constitute negligence per se." Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 302. -19- failure to warn adequately of the risks attendant to ingestion of the contraceptive by women with a prior medical history of toxemia during pregnancy. Paragraph four of the syllabus in Seley states, "[i]n satisfying [that the lack of adequate warnings was a proximate cause of the plaintiff's ingestion of the drug], the plaintiff is aided by the presumption that the failure to adequately warn was a proximate cause of the plaintiff's ingestion of the drug." Our review of the record shows the trial court did give the proposed instruction in a form almost identical to that requested by the estate. The trial court instructed the jury as follows: "Now, if you find WACO's label provided inadequate, inaccurate, and/or misleading warnings or instructions regarding the need to stabilize scaffolding at three times the minimum base dimension, a rebuttable presumption arises, beneficial to the plaintiffs, the Shannons, that the failure to adequately warn or instruct was the proximate cause of the plaintiff's injury and death." This instruction virtually mirrors the syllabus law set forth in Seley inasmuch as it tells the jurors about the rebuttable presumption that a failure to provide adequate warnings is the proximate cause of a plaintiff's injuries. We find no prejudice to the estate. The second assignment of error is overruled. III. The third assignment of error complains the trial court erred by directing a verdict on the estate's claim for punitive damages arising from WACO's alleged wanton and willful misconduct. The estate maintains it presented evidence WACO had failed to amend or -20- correct its warning label to reflect the state of Ohio's 3:1 base to height ratio for scaffolding towers. Civ. R. 50 provides in relevant part: * * * (4) When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. When considering a motion for a directed verdict, the trial court must neither consider the weight of the evidence nor the credibility of the witnesses because the motion does not present factual issues, but a question of law. O'Day v. Webb (1972), 29 Ohio St.2d 215, paragraph three of the syllabus; Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 284. The court must withhold an essential issue from the jury when there is not sufficient evidence relating to that issue to permit reasonable minds to reach different conclusions on that issue. O'Day, supra, paragraph four of the syllabus. The estate brought its punitive damages claim pursuant to R.C. 2307.80(A), which provides for an award of punitive damages upon clear and convincing evidence of a manufacturer's misconduct that manifested a flagrant disregard of the safety of persons who might be harmed by the product in question. Punitive damages are available upon a finding of actual malice. Calmes v. Goodyear Tire & Rubber Co., 61 Ohio St.3d at 419. "`Actual malice,' necessary -21- for an award of punitive damages, is (1) that state of mind under which a person's conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm." Preston v. Murty (1987), 32 Ohio St.3d 334, syllabus. This law requires a mental state "so callous in its disregard for the rights and safety of others that society deems it intolerable." Calmes, supra, at 473. Hence, as applicable to this case, punitive damages may only be awarded as punishment for conduct that has "a great probability of causing substantial harm." Id., at paragraph one of the syllabus. We believe the trial court did not err by directing a verdict on the claim for punitive damages because reasonable minds could not reach different conclusions on the issue whether there was clear and convincing evidence that WACO's failure to warn exhibited actual malice. The estate maintains WACO's knowing disregard of the statutory base to height requirement exhibited a "reckless indifference" to the safety of its scaffold users. This argument does not establish actual malice. Although not determinative in this action, uncontested evidence showed the 4:1 base to height ratio contained on WACO's warning label is employed by forty-four states and the federal government. Considering this ratio solely for purposes of establishing the intent component of the punitive damages claim, we find the warning label would not have alerted WACO to a great probability that a tower would fall. WACO could assume that -22- warning labels that complied with a base to height ratio approved by nearly every other regulatory body in country would not create a great probability that this accident might occur. To be sure, Ohio's more stringent standard might make it less likely for a tower of the kind involved in this case to topple, but it would not establish a great probability that a tower in compliance with a 4:1 ratio would fall. Our only concern is with WACO's intent for purposes of the motion for a directed verdict on the punitive damages claim. We find the estate failed to show by clear and convincing evidence that WACO's failure to provide labels conforming to Ohio's base to height ratio constituted actual malice. The third assignment of error is overruled. IV. The fourth assignment of error is the trial court erred by overruling a motion in limine and permitting William Boden, president of defendant Advanced, and James Lowery, an Advanced employee, to testify decedent was told to tie off the tower to one of the gymnasium ceiling I-beams. The estate maintains admission of this testimony violated the spirit of since-repealed R.C. 2317.03, the dead man's statute, and was unduly prejudicial since it allowed WACO to argue decedent's own negligence proximately caused the tower to topple. The staff note to Evid.R. 601 states, "Rule 601 supersedes R.C. 2317.03, the dead man's statute." See, also, Johnson v. Porter (1984), 14 Ohio St.3d 58. Therefore, since Boden and Lowery -23- are presumed competent to testify, we must determine whether their testimony was relevant. "`Relevant evidence' means any evidence having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. The determination whether evidence is relevant is one the trial judge should make based upon common experience and logic. State v. Lyles (1989), 42 Ohio St.3d 98, 99. Therefore, we review alleged error in the admission of evidence for a clear abuse of discretion and material prejudice to the complaining party. Id.; State v. Maurer (1984), 15 Ohio St.3d 239, 265; see, also, Evid.R. 403(A). The trial court did not clearly abuse its discretion by permitting WACO's witnesses to testify that decedent had been ordered to tie off the scaffolding tower. The testimony was arguably relevant to show whether decedent's own acts were a superseding form of negligence. Moreover, we note the estate used this testimony to its own advantage. It attempted to show the instructions to tie off the tower necessarily proved the inadequacy of the 4:1 base to height ratio and, by inference, the inadequacy of the warning label. Under the circumstances, we cannot say the trial court acted unreasonably or arbitrarily by denying the motion in limine. The fourth assignment of error is overruled. V. The fifth assignment of error relates to the summary judgment rendered in favor of Advanced Athletic. The estate argues the -24- court erred by granting summary judgment on its intentional tort claim and dual capacity claim. A. The estate argues Advanced willfully and intentionally violated numerous state and federal safety regulations, and these violations proximately caused decedent's death. These alleged violations include: failure to train its employees in safety practices relating to scaffolding use; using scaffolding in violation of the state base to height ratio; failure to provide safety belts to employees working more than fifteen feet above the ground; and erecting the scaffolding tower in direct contravention 6 of manufacturer specifications. In order to establish intent for the purpose of proving the existence of an intentional tort committed by an employer against an employee, the employee must demonstrate (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 6 Instead of fully addressing these contentions, the estate's merit brief refers us to Plaintiff's Response to Motion for Summary Judgment to "review the facts which are intensive in this case" because "the restraints of a manageable size brief preclude a complete recesitation [sic] here." We refer the estate to App.R. 12 (A)(2) which states the court may disregard an assignment of error presented for review if the party raising it fails to identify in the record the error on which the assignment of error is based. See, also, App.R. 16(A)(7). -25- 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. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus. The determinative issue in intentional tort cases concerns the employer's intent to cause the employee's injury. The employee need not prove the employer had an actual subjective intent to cause the injury or that the employer knew that the exact injury sustained would occur. Id. at 117. However, the mere knowledge and appreciation of a risk is not intent. The employee must show that injuries to employees are certain or substantially certain to result from the process, procedure or condition and the employer still proceeds. Id. at paragraph two of the syllabus. The plaintiff bears the burden of establishing these elements by proof beyond that required to show negligence or recklessness. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172; Brady v. Safety- Kleen Corp. (1991), 61 Ohio St.3d 624, 631. The facts of each case will determine what constitutes "substantially certain." Richie v. Rogers Cartage Co. (1993), 89 Ohio App.3d 638, 644. We believe the trial court properly granted summary judgment on the intentional tort claims because the estate has failed to show Advanced's failure to adhere to applicable safety regulations gave it knowledge that decedent's injury was substantially certain to occur. -26- Proven violations of safety regulations do not necessarily demonstrate an employer's intent to harm. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, the court stated: "There are may 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' Compensations Act, such conduct should not be classified as an `intentional tort.'" Id. at 117. See, also, Sanek, supra, at 172; Frazier v. Royal Brass Mfg. Co. (1990), 70 Ohio App.3d 748, 751 (employer's failure to take correc- tive action or institute safety measures does not necessarily demonstrate an intent to harm); Dickston v. Southern Ohio Fabrica- tors, Inc. (Feb. 12, 1990), Butler App. No. CA89-07-107,unreported. For purposes of reviewing a summary judgment, we view the facts in a light most favorable to the estate. Civ.R. 56(C). Even were we to assume Advanced violated administrative regulations, those same facts fail to show Advanced's failure to follow the regulations gave it reason to know, with substantial certainty, that decedent's death would follow. Despite Advanced's failure to conduct specific safety training, the undisputed facts show decedent was an experienced hand with scaffolding towers. Advanced had assigned decedent the task of supervising the removal of the gymnasium doors, a job entailing erection and dismantling of the scaffolding tower. Moreover, undisputed evidence showed decedent -27- attended informal safety meetings Advanced would periodically conduct for its employees. Advanced's owner gave decedent the following specific instructions to be followed on the job site: "I told him that I wanted two rope blocks used in the procedure for lowering the doors and to tie them off to the ceiling, anchor them off to the ceiling. I had told him that I wanted him to tie off the scaffolding, block the base ***. His response to me was we didn't need two rope blocks, that the doors weren't that big and heavy. My response to that was it didn't matter, I wanted two rope blocks used and because it was safer in case one would -- using one it could break or something, you never know ***. I had also told [decedent] for him [sic] to stay on the floor, I told him I did not want him on the scaffolding. My exact words to that were to keep his ass off of the scaffolding and supervise only, and that seemed to be, you know, acceptable by him." Other Advanced employees confirmed these verbal instructions and stated decedent openly defied them. One employee testified decedent refused to use two rope blocks, claiming they would take too much time. Decedent told an employee not to use required safety pins, characterizing them as "sissy pins." He also ignored orders to stay off the scaffolding tower. None of these facts were communicated to Advanced prior to the accident. Consequently, Advanced had no knowledge decedent had not complied with specific safety instructions. We also find the estate failed to show a violation of the base to height ratio would create a question of fact concerning Advanced's intent. It is uncontroverted Advanced did not know of the 3:1 ratio used in this state; therefore, its failure to follow -28- that ratio could not be considered intentional for purposes of proving this cause of action. Moreover, assuming Advanced did know the proper ratio, its reliance on OSHA standards, while improper, would nonetheless negate any specific intent to injure decedent since the OSHA standard is accepted as safe in nearly every jurisdiction in the country. While OSHA's standard may be less stringent than Ohio's standard, it is still an accepted standard for safety that Advanced believed applied in this state. Since our narrow inquiry goes to Advanced's intent, we find no evidence showing Advanced knew subjecting decedent to a 4:1 base to height ratio would, to a substantial certainty, lead to his injury. The estate's citation to Emminger v. Motion Savers, Inc. (1990), 60 Ohio App.3d 14, is not on point. Emminger involved a worker who fell to his death while working on a suspended I-beam. The trial court granted summary judgment to Emminger's employer on an intentional tort claim. The court of appeals reversed, finding Emminger presented evidence which created an issue of material fact as to whether the employer's disregard of safety procedures was intentional when examined under the standards for intentional tort claims. Id. at 18. Central to the court's holding was evidence showing the employer failed to use safety lines, failed to develop a safety program and used untrained, inexperienced employees to work at heights. Id. Another factor bolstering the court's conclusion was the testimony of an expert who found the employer's -29- failure to use required safety equipment "pretty close to willful." Id. The factors favoring a trial in Emminger are distinguished from those in this case. Not only was decedent experienced with scaffolding towers, he attended his employer's informal safety meetings. Despite this experience and knowledge of safety procedures, the uncontradicted evidence showed he ignored his employer's safety orders. As noted in Emminger, an intentional tort is not proved when the employer cannot anticipate the employee's misconduct. Id. at 17, fn. 1. Accordingly, we find there are no issues of material fact relating to the intentional tort claim. The trial court properly granted summary judgment. B. Finally, the estate argues the trial court erred by granting summary judgment on its dual capacity claim. The estate maintains Advanced's status as an employer and manufacturer of scaffolding allows it to maintain a separate products liability action against Advanced because its assembly of component parts of the scaffolding tower makes it a manufacturer. An employer's immunity from liability to its employees under the workers' compensation scheme may not apply if the employer occupies a second persona or capacity in relation to the employer. Guy v. Arthur H. Thomas Co. (1978), 55 Ohio St.2d 183. In order for the dual capacity doctrine to apply, there must be an allegation and showing that the employer occupied two independent and unrelated relationships with the employee, that at the time of -30- these relationships there were occasioned two different obligations to the employee, and that the employer had during that time assumed a role other than that of employer. Schump v. Firestone Tire & Rubber Co. (1989), 44 Ohio St.3d 148, 150; Bakonyi v. Ralson Purina Co. (1985), 17 Ohio St.3d 154. In Schump, the court adopted the following test: " *** The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first, but whether the second function generates obligations unrelated to those flowing from that of the employer. This means that the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee; the fact of injury must be incidental to the employment relationship." Id. at 152. The estate cites to Leibreich v. A.J. Refrigeration, Inc., supra, for the proposition that Advanced's act of assembling the component pieces of the scaffold made it a manufacturer for purposes of a negligence claim. In Leibreich, the court cited to R.C. 2307.71(I) which defines a "manufacturer" as "a person engaged in a business to design, formulate, produce, create, make, construct, assemble, or rebuild a product or component of a product." The court stated, "[u]nder this definition an entity is a manufacturer if it assembles components into a design which creates a product." Leibreich, supra, at 271. Assuming Leibreich applies to this negligence action, we believe the trial court did not err by granting summary judgment on the dual capacity claim because Advanced was not a manufacturer -31- "engaged in a business" to assemble scaffolding towers, nor did it assemble components into a design which creates a product. Advanced merely assembled and disassembled the parts of the scaffolding tower for use in its business. Those towers did not enter the stream of commerce, but were simply tools with some assembly required. In addition, the estate presented no evidence to show Advanced assembled the towers in a role outside the employer-employee relationship. In fact, the uncontroverted evidence showed Advanced employees would assemble the scaffolding tower on the job site solely to perform work-related tasks. Hence, decedent's injury from the assembly of the tower was "incidental to the employment relationship." Schump, supra. Accordingly, the fifth assignment of error is overruled. Judgment affirmed. -32- It is ordered that appellees recover of appellant their 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 Court of Common Pleas 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. BLACKMON, J. HARPER, J., CONCUR CHIEF JUSTICE 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 journalization, .