COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68428 GEORGIA HUGGINS : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION FEDERAL EQUIPMENT CO., ET AL. : : Defendant : : : MAR-BAL, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 2, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. CV-240535 JUDGMENT REVERSED AND REMANDED. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee Mar-Bal, Inc.: LISA FRIEDMAN KENNETH A. ZIRM JOHN C. MEROS PATRICIA F. WEISBERG Schulman, Schulman & Meros Walter, Haverfield, Buescher 1700 Standard Building & Chockley 1370 Ontario Street 1300 Terminal Tower Cleveland, Ohio 44113-1727 Cleveland, Ohio 44113-2253 - 2 - O'DONNELL, J.: Georgia Huggins appeals the trial court's decision to grant Mar-Bal, Inc.'s motion for summary judgment thus denying her intentional tort claim. Because we find genuine issues of material fact exist and Mar-Bal, Inc. is not entitled to judgment as a matter of law, we reverse and remand the matter for further proceedings. The following facts are generally not disputed. Mar-Bal, Inc. hired Georgia Huggins as a press operator on January 30, 1991, assigned her to work in the production department, but two weeks later transferred her to a different department which housed the extruder machines. On her first day in this department, the Human Resources Director escorted her to the Bulk Molding Compound Department (BMC) and placed Huggins under the direction of Dave Hetzel for training on the extruders. Hetzel gave her a brief outline of the machine's operation including where the bulk molding compound went into and came out of the machine. She observed the extruder in operation and knew the material was being cut. She was told that she would be working on an extruder, but that it had to be torn down and cleaned first and that she would be given hands-on training on the extruder when it was ready to go back into production. In the meantime, plaintiff was given a broom and instructed to sweep the floor of the BMC department around the machines. She was - 3 - not instructed to clean or wipe up any of the extruder machines, but only to sweep the floors. After being given her assignment to sweep the floors, plaintiff left the BMC Department to get her work gloves from her locker. When she returned to BMC, according to her testimony, no one else was in the department. She believed that Extruder No. 1, the extruder which was being torn down and cleaned, was turned off because she had seen something unplugged. She was not told that the power to the machine was off. She began sweeping around Extruder No. 1. After a few minutes of sweeping, she noticed some material on the floor which was too big for a dust pan. She reached down to pick up the material with her left hand, balancing or bracing herself with her right hand upon Extruder No. 1. The cutter blade came down on her fingers resulting in the amputation of four fingers. The cutting blade on the extruder is triggered when the extruder material trips a light beam. Upon learning of the accident, the plant engineer roped the extruder machine off to preserve the scene for investigation. He observed that both the electrical and pneumatic power to the machine were on. He turned both power sources off and locked them out. When the accident occurred the machine was in the process of being cleaned and, according to company policy, should have had the power turned off. The lockout policy at Mar-Bal required that all equipment be turned off and locked out whenever not in use, including during all - 4 - cleaning procedures. Mar-Bal employees assigned to BMC had been trained in lockout procedures and were well aware of the company's lockout policy, including the requirement that the extruders be locked out during the cleaning procedure. Mar-Bal also initiated efforts in the late 1980's to work cooperatively with various government agencies to improve the safety of operations at Mar-Bal. Assistance was requested of the Industrial Commission of Ohio regarding possible guarding alternatives for the extruders. As a result, the Industrial Commission conducted a safety survey of Mar-Bal's facility and noted the difficulty presented in guarding the cutter assemblies. Neither the Industrial Commission nor the Bureau of Worker's Compensation were able to suggest a satisfactory method for the guarding of the extruders on Mar-Bal's premises. (See St. Clair Aff. 5, 7). In addition, sometime prior to plaintiff's accident, since the extruders were manufactured without guards, Mar-Bal designed and installed expanded metal guards on the extruders as a safety feature to help prevent injury during the operation of the extruder. Deposition testimony by a number of Mar-Bal employees established that the guard was routinely removed during the cleaning operation. Although Mar-Bal has operated extruders since 1979, the record contains evidence of only one previous accident involving a cutter blade assembly. This occurred on August 8, 1988. On that date, an - 5 - experienced Mar-Bal employee suffered the partial amputation of four fingers when he deliberately placed his hand in the cutter blade assembly area believing that the power to the cutter was turned off. Plaintiff commenced suit on October 13, 1992 in Common Pleas Court against the manufacturer, supplier and seller of the machine. The seller subsequently filed a third-party indemnification claim against Mar-Bal. Thereafter plaintiff filed a "cross-claim" against Mar-Bal alleging intentional tort. The supplier and seller of the extruder were voluntarily dismissed by plaintiff. Mar-Bal and the manufacturer filed separate motions for summary judgment. Mar-Bal argued that plaintiff had failed to demonstrate that Mar-Bal had actual knowledge of the dangers which ultimately led to plaintiff's injuries. On September 29, 1994, the trial court granted Mar- Bal's motion for summary judgment and this timely appeal ensued. Plaintiff's sole assignment of error states as follows: I. THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT IN GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLEE MAR- BAL, INC. Under Civ. R. 56, summary judgment is proper when "(1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is - 6 - made, that conclusion is adverse to the party against whom the motion for summary judgment is made." State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ. R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. Having reviewed the law of summary judgment, we concern ourselves with the law of intentional tort in Ohio to determine the outcome of this appeal. In Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, the Ohio Supreme Court modified the intentional tort language in paragraph 5 of the syllabus in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, and clarified the elements of intentional tort: - 7 - "*** (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 perform the dangerous task." Based on these elements then, we must determine whether genuine issues of material fact exist and whether Mar-Bal is entitled to judgment as a matter of law. Here, Mar-Bal, Inc. failed to acquaint appellant with the dangers of the extruder: "she would be given hands-on training on the extruder when it was ready to go back into production." Surely appellant could infer the extruder was out of production, i.e., it was not operating. Clearly, the appellant was not trained on this machine. Clearly, no one advised her it was not locked out. Clearly, she was left alone, unsupervised, untrained, and told to clean up. Clearly, this employer had knowledge of the danger of the failure to lock out the machine because of a 1988 incident involving failure to lock out the machine with another employee. Accordingly, the record contains evidence that the extruder is a dangerous instrumentality, that the employer had this knowledge, that the employer placed an untrained, unsupervised employee in this location and failed to insure that the machine was locked out, that the employer knew of the danger when power was not locked - 8 - out, and this employer, with this knowledge, required the appellant to perform a dangerous task. These circumstances raise a genuine issue of material fact in this case for jury consideration which precludes the conclusion that Mar-Bal, Inc. is entitled to judgment as a matter of law. Accordingly, judgment of the trial court is reversed and this case is remanded for further proceedings. - 9 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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, P.J., CONCURS; JAMES M. PORTER, J., DISSENTS (See Dissenting Opinion, James M. Porter, J., attached) JUDGE TERRENCE O'DONNELL 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, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68428 GEORGIA HUGGINS : : D I S S E N T I N G Plaintiff-Appellant : : O P I N I O N vs. : : FEDERAL EQUIPMENT CO., ET AL. : : Defendant : : MAR-BAL, INC. : : Defendant-Appellee : : DATE: NOVEMBER 2, 1995 JAMES M. PORTER, J., DISSENTING: I must respectfully dissent from the majority's disposition of this appeal. The material facts in this case are undisputed and plainly disclose that the employee cannot establish two essential elements of the Fyffe test, i.e., that the employer knew that harm to the employee was substantially certain to occur and that the employer required the employee to perform the dangerous task causing the injury. The employee was admittedly not operating a dangerous machine at the time of the injury; she was engaged in the harmless task of sweeping up around an extruder. Except for eating one's lunch, it is hard to imagine a more benign exercise. - 2 - While bending over to pick up a pile of debris, to steady herself, she inadvertently placed her hand on the machine and activated the cutting device. This was purely a fortuitous event - uninvited, unintended and unforseen. If such injury is the result of an "intentional tort," the expression has lost all meaning. As the Supreme Court has warned "if intentional wrong is interpreted too broadly this single exception would swallow up the entire 'exclusivity' provision of the [Workers' Compensation] Act." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 115. Although the majority correctly quotes the tri-partite Fyffe test, it fails to mention paragraph two of the syllabus in that controlling case, which informs its application. The Supreme Court in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, paragraphs one and two of the syllabus, set forth the law applicable to an intentional tort action brought against an employer: 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 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 - 3 - 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 five of the syllabus, modified as set forth above and explained.) See, also, Brady v. Safety-Kleen Corp. (1992), 61 Ohio St.3d 624. In the instant case, there is ample evidence that the employer appreciated the risk of harm presented by someone putting his hand into the space below the cutter blade of the extruder. One employee in 1988 had previously had fingers amputated when he deliberately put his hand into the area to check for burrs on a die. However, as the majority concedes (Maj. Opn. at 3-4), the summary judgment record contains an exemplary concern by the employer in conjunction with governmental agencies for the safety of workers around the extruder machines. To that end, numerous - 4 - safety programs and devices were adopted in the form of lockouts or fail-safe procedures to prevent accidents of the nature that occurred here. Neither the employer nor its supervisors were bound to anticipate that an employee "instructed to sweep the floor of the BMC department around the machines" (Maj. Opn. at 2) would inadvertently place her hand into the cutting area whether she assumed the machine was off or on. Nor was this the case where an employee was compelled to work on a machine that was known to be unsafe or from which safety devices had been removed. Her job to sweep the floor had nothing to do with operating the extruder. We find the instant case not dissimilar from the result in Alston v. Cleveland Metal Stamping Co. (Nov. 12, 1992), Cuyahoga App. No. 61250, unreported, where this Court affirmed the granting of summary judgment in favor of the employer when the punch press operator was injured when the press double-stroked. We stated at 5-6: 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 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 - 5 - 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. Campanga specifically did not want his employees to be injured.") See, also, DePriest, et al. v. Paramount Metals Co. (Nov. 24, 1993), Cuyahoga App. No. 64145, unreported (summary judgment for employer affirmed where the triggering event causing a punch press to cycle was inadvertent employee activating a foot switch); Killingsworth v. Broust Foundry (April 14, 1994), Cuyahoga App. No. 64678, unreported (summary judgment for employer affirmed where the injury caused by a grinder resulted from improper mounting rather than malfunctioning machine); Duckworth v. Creative Inter-Global, Inc. (May 5, 1994), Cuyahoga App. No. 65449, unreported (summary judgment for employer affirmed where injured employee was not required to use dangerous saws without the safety guards); Guillozet v. Allied Signal (March 2, 1994), Darke App. No. 1333, unreported (summary judgment for employer affirmed where plaintiff's injury resulted from tripping on stairs and reaching into machine to break fall); Schiffer v. MTD. Products (April 13, 1990), Huron App. No. H-89- 15, unreported (summary judgment for employer affirmed where plaintiff's injury resulted from plaintiff inadvertently placing - 6 - hand in area of welder); Miller v. Union Tank Car Co. (Jan. 23, 1990), Marion App. No. 9-87-54, unreported (summary judgment for employer affirmed where plaintiff's injuries resulted from co- employee's accidentally jostling actuating handle trapping plaintiff's hand beneath the piston). As in the above cited cases, I find no evidence here of indifference to or gross disregard of dangerous conditions which would have led, with substantial certainty, to knowledge that .