COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68522 FERNANDIS McGLOTHIN, ET AL., : : Plaintiffs-Appellants : : JOURNAL ENTRY vs. : and : OPINION LTV STEEL COMPANY, : : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 258535 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiffs-appellants: Lester S. Potash 2000 Illuminating Building 55 Public Square Cleveland, Ohio 44113-1901 For defendant-appellee: Anthony J. DiVenere McDONALD, HOPKINS, BURKE & HABER CO., L.P.A. 2100 Bank One Center 600 Superior Avenue, East Cleveland, Ohio 44114 -2- NAHRA, J.: Plaintiffs-appellants Fernandis McGlothin, Jr. and Gladys McGlothin appeal from the trial court order which granted the 1 motion for summary judgment filed by Mr. McGlothin's employer, defendant-appellee LTV Steel Company. Appellant began working for appellee in approximately 1971. During the years of his employment, he worked as a laborer and operator of various machines. In 1989 or 1990 appellant obtained the position of welder, which involved operating a shearing/welding machine. The function of this machine was to connect two-to-three foot 2 wide coils of sheet steel. Its process began with a coil being fed into the machine by conveyor as another coil exited. The operator pushed a button on the machine's console to clamp the ends of both the incoming coil and the one which had preceded it. Then, still at the console, the operator pushed one button to cut both ends, pushed another button to let the carriage down for the scrap ends to be released, and pushed a third button to bring the welder together to weld the two newly-cut ends. When the weld was finished, the clamps released; the operator then checked the weld by tapping it with a hammer before sending the finished coil on its way. 1 Appellant will hereinafter be referred to in the singular. 2 The approximate length of these coils is not evident from the record. -3- During the normal operation of the machine, a vertical guard door protected the operator from the moving parts inside. Moreover, the machine was equipped with two lockout switches which automatically "locked" the machine closed while it was in operation and thus also prevented access to the moving parts inside. The record reflects that sometime in 1990, at least one of the lockout switches on the machine was malfunctioning. The record further reflects that beginning approximately in July 1992, the machine developed problems when cutting light gauge steel: viz., rather than actually cutting the end of the incoming coil, the shearing mechanism on that side would simply bend any steel which was less than .020 gauge. Appellant and the other operators reported the problem to appellee's management. Appellee's maintenance personnel attempted several times to repair the machine by "shimming," i.e., realigning, the shears. However, the machine would soon thereafter develop the problem again. To maintain production of light gauge steel on the machine in the face of this ongoing problem, appellant and his co-workers began to improvise their own methods of "shimming" the malfunctioning shearing blade. The record reflects two or three methods of "improvisation" developed; these involved inserting a strip of heavier gauge steel (a "shim") into the malfunctioning side of the machine. One method used by the operators was to "feed" the shim in from outside the machine on top of the incoming coil's end. Appellant used a different method: he propped open -4- the vertical guard door, placed the shim under the clamp, then, while holding the shim in place with either a board or his right hand, pushed the clamp button with his left hand in order to secure the shim on top of the end of the coil before operating the shearing mechanism. Appellee's management was aware that the machine's operators were improvising their own methods of "shimming" when the machine was having difficulty cutting light gauge steel. On September 29, 1992, appellant was injured while operating the machine when while shearing light gauge steel the clamping mechanism came down upon his right hand as he was holding a shim in place. On September 22, 1993, he and his wife commenced an action against appellee in the Cuyahoga County Court of Common Pleas. Appellant claimed his injury was caused by appellee's intentional tort; appellant's wife claimed a loss of her husband's consortium. Following discovery in the action, appellee filed a motion for summary judgment. In its brief in support of the motion, appellee asserted since appellant could support none of the elements necessary to maintain his cause of action for intentional tort, it was entitled to judgment on both claims as a matter of law. Appellee supported its position with portions of appellant's 3 deposition testimony and the affidavit of appellant's immediate supervisor, Jacob Markovich. 3 The complete transcript of appellant's deposition was filed in the trial court. -5- Appellant filed a brief in opposition to appellee's motion, attaching thereto several documents. Although appellant included a portion of his own deposition testimony, he also included what were apparently excerpts from the deposition testimonies of four of 4 appellee's supervisory employees. Appellee filed a reply brief but attached no new evidentiary materials. Subsequently, the trial court issued a judgment entry granting appellee's motion for summary judgment without opinion. Appellant has filed a timely appeal from the trial court's order and presents the following as his sole assignment of error: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Appellant argues he presented sufficient evidence to create a genuine issue of material fact with respect to each of the elements necessary to establish his cause of action for intentional tort. This court disagrees. Civ.R. 56(C) makes summary judgment proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Temple United, Inc. v. Wean (1977), 50 Ohio St.2d 317. However, a motion for summary 4 These deposition transcripts were never filed in the trial court. Moreover, none of the documents appellant attached to his motion was verified. -6- judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Accordingly, in an action by an employee against his employer, the employee must set forth specific facts which show that there is a genuine issue concerning whether the employer committed an intentional tort against its employee. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117. The standard by which an employee must establish an intentional tort of an employer is set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115. Therein, the Ohio Supreme Court established a three-prong test 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 (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. [Citation omitted.] Id., paragraph one of the syllabus. The court further described the requisite standard of proof of the employer's "intent" in the following manner: 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 -7- 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 know 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. [Citation omitted.] Id., paragraph two of the syllabus. (Emphasis added.) In this case, with regard to the first prong of the test, viewing the inferences in a light most favorable to appellant, the evidence before the trial court demonstrated that when the safety features installed on the machine were not working, the machine had the potential to be a dangerous instrumentality. Moreover, the evidence also indicated that for some time prior to appellant's injury, the machine had not only been malfunctioning in the shearing process, but at least one of the two lockout mechanisms was also not working. Operators were able to "open" the machine and continue to operate it, at least during the clamping process as appellant did. Whitelock v. Enterprise Metal Service, Inc. (Nov. 4, 1994), Lucas App. No. L-94-115, unreported. Furthermore, assuming arguendo the exhibits appellant submitted with his brief in opposition to appellee's motion for summary judgment constituted competent evidence pursuant to Civ.R. 56(C) and (E), the evidence demonstrated appellee's supervisory employees were aware the operators were "improvising" when the machine was having problems cutting light gauge steel. -8- However, there was no evidence of appellee's "intent" as that term is defined in Fyffe v. Jeno's, Inc., supra. In his affidavit, Markovich stated in pertinent part the following: 5. Occasionally, the machine operators would shim a large piece of metal under the coil in order for the coil to be held firmly enough in place to enable the machine to make a proper cut. At times, when the machine was slipping, machine operators placed a large shim through the intake side of the machine, keeping their hands out of the way of the shears and clamping mechanism. Operators used the above-described procedure to shim the coil so their hands did not come in contact with any moving parts of the machine. The gate door was always closed and the operator would go to his operating console and push buttons to operate the machine. 6. I have never seen McGlothin or any other operator shim the coil through the front of the machine, or operate it when the guard gate was open, or have their hands on the shim when they operated a machine from the console. 7. I was not present when McGlothin's accident occurred and had no knowledge that McGlothin was shimming the coil through the front of the machine. I had no knowledge that McGlothin was holding the shim with his fingers so that they would come into contact with the clamp. Furthermore, at no time did I ever instruct McGlothin to shim the coil through the front of the machine as this would have entailed lifting the front guard and placing his hands where they could come in contact with the moving parts of the machine. McGlothin had been instructed on numerous occasions to keep his hands clear of any of the machine's moving parts. * * * 10. To the best of my knowledge, LTV Steel has never had a similar accident on this machine, nor has an accident occurred in this way. 11. * * * [T]he safety gate in the front of the machine was in working order at the time of the accident, but McGlothin propped it open with a hook. (Underscoring in original; emphasis added.) -9- The other deposition testimony submitted by appellant supported Markovich's statements regarding appellee's lack of knowledge of appellant's personal manner of "shimming" light gauge steel and the relative danger it involved. Moreover, appellant's own deposition testimony was to the same effect. Appellant testified: Q. Jake [Markovich] told you to use a shim if you were having a problem in cutting the light gauge coil? A. Yes. Q. But he didn't tell you specifically how to use the shim; is that correct? A. No. Q. Okay. I mean, he didn't show you, put it in here and do it this way, correct? A. No. * * * A. The five or eight times that you did this procedure, the same way by holding this shim with your right hand, did any foreman ever see you do that? A. Yes. Q. Who? A. Jake. Q. When? A. I don't know the exact -- oh, he saw me the morning that I smashed my fingers. * * * Q. The vertical guard door was working okay, right, that day? There was nothing wrong with it? -10- A. Well, you have to always prop it, put a stick under it. Q. That's what I was going to ask you. How did you keep that door open when you put your fingers in there? A. Prop it up. Q. Normally, when you let go, it falls down, it closes, correct? A. Yes. Q. So in order for it to stay up, you have to prop it up somehow? A. Yes. Q. What did you prop it up with? A. With the hook that I use to pull the scrap out with. * * * Q. Okay. So you say. But in order to operate it, you would have had to bring the clamps down, you would have had to turn the lockout switch back on? A. Yes. Q. Correct? A. Yes. Q. You have had to turn the power back on? A. Yes. Q. Okay. So you are saying you would have used some kind of a board or a stick to hold the scrap shim onto the area? A. Yes. Q. You could have done that in any event, couldn't you? -11- I mean, even if the lockout switch weren't used, you could have still used a stick or a board, correct? A. I could have. Q. Why didn't you use a stick or a board, rather than your fingers? A. I wasn't thinking. (Emphasis added.) From the foregoing, it is clear appellee did not have the requisite knowledge, i.e., awareness, either that a "dangerous procedure" existed within its business operation or that harm was a "substantial certainty." Wehre v. Countrymark, Inc. (1992), 82 Ohio App.3d 535; Alton v. Cleveland Metal Stamping Co. (Nov. 12, 1992), Cuyahoga App. No. 61250, unreported; cf., Kirby v. Dependable Stamping Co. (Mar. 24, 1994), Cuyahoga App. No. 65009, unreported; Cook v. Cleveland Electric Illuminating Co. (Mar. 30, 1995), Cuyahoga App. No. 67264, unreported; Whitlock v. Enterprise Metal Services, Inc., supra. Furthermore, the evidence indicated neither that appellee required appellant to do the work when the machine was malfunctioning nor that appellee required appellant to do the work in the manner in which he chose to do it. Foust v. Magnum Restaurants, Inc. (1994), 97 Ohio App.3d 451; McConville v. Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297; Anderson v. Adams Shell (June 16, 1994), Cuyahoga App. No. 65619, unreported. To paraphrase the court in Foust v. Magnum Restaurants, Inc., supra, while appellee's failure to ensure that the operators were, -12- at all times, using available safety measures might indicate negligence, or even recklessness, such actions fall short of "substantial certainty." It is not enough to prove evidence tending to show only the first element of the Fyffe test; rather, appellant must satisfy all three prongs. Considering all the evidence properly before the trial court in this case, reasonable minds could only conclude appellee was not substantially certain appellant would be injured in merely performing the task his employment entailed, viz., operating the shearing/welding machine. Therefore, the trial court did not err in granting appellee's motion for summary judgment. Accordingly, appellant's sole assignment of error is overruled. The judgment of the trial court is affirmed. -13- It is ordered that appellee recover of appellants 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. PATTON, C.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA 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 .