COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68622 ROBERT CROW : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION BEVERAGE DISTRIBUTORS, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-258399 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: DAVID A. FORREST (#0006673) RICHARD A. VADNAL (#0040223) JEFFRIES, KUBE, FORREST & MONTELEONE CO., L.P.A. 1650 Midland Building 101 Prospect Avenue West Cleveland, Ohio 44115-1027 For Defendant-Appellee: JOHN A. NEVILLE (#0019031) KENNETH P. ABBARNO (#0059791) REMINGER & REMINGER CO., L.P.A. The 113 St. Clair Building Cleveland, Ohio 44114 - 2 - SPELLACY, P.J.: Plaintiff-appellant Robert Crow appeals from the entry of summary judgment for defendant-appellee Beverage Distributors, Inc. Crow raises two assignments of error: I. THE TRIAL COURT ERRED GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN AN EMPLOYMENT INTENTIONAL TORT CLAIM FINDING THAT THERE WAS NO "DANGEROUS PROCESS PROCEDURE, INSTRUMENTALITY OR CONDITION" WITHIN APPELLEE'S BUSINESS OPERATION WHERE ALL WITNESSES TESTIFIED TO THE CONTRARY CREATING GENUINE ISSUES OF MATERIAL FACT. II. THE TRIAL COURT ERRED GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN AN EMPLOYMENT INTENTIONAL TORT CLAIM FINDING THAT INJURY WAS NOT SUBSTANTIALLY CERTAIN TO OCCUR WHERE WITNESS TESTIMONY INDICATED OTHERWISE CREATING GENUINE I S S U E S O F MATERIAL FACT. I. Crow brought this action for intentional tort against Beverage Distributors, his employer, after he injured his leg when a hand truck broke while he was making a delivery. Beverage Distributors moved for summary judgment and the trial court granted the motion. Evidentiary material reveals the following: Beverage Distributors distributes beer to retailers. It employees fifty to seventy-five drivers, plus some additional helpers, and operates approximately fifty-three trucks. Each truck is equipped with hand trucks, which the drivers and helpers use to unload the beer. - 3 - In September 1992, Crow was wheeling a loaded hand truck up a slight incline when its frame broke near the bottom. Crow injured his leg when he tried to prevent the load from falling. Crow, who had been injured in a similar incident two years earlier, testified that the mechanics at Beverage Distributors had rewelded the hand truck and that the hand trucks they provided were often old and unsafe. He also testified that hand trucks had broken while he was using them six to ten times since he began working at Beverage Distributors in 1983. He stated that when he complained to the mechanics about broken hand trucks they would reweld them or give him another used one. Crow was unaware of whether anyone else had been injured by a broken hand truck. Rick Varvir has had three or four hand trucks break during the seventeen years he has worked for Beverage Distributors. Varvir testified that he had never been injured by a broken hand truck. He further testified that drivers were sometimes given unsafe hand trucks. Nick Sideris has had five or six hand trucks break during the fifteen years he has worked for Beverage Distributors. Sideris testified that he had never been given an unsafe hand truck. Sideris, the union steward, also testified that several times Beverage Distributors bought some new hand trucks after he had complained that there were too many old ones. Norm Deere has had three or four hand trucks break during the twenty-five years he has worked for Beverage Distributors. He stated that after a hand truck broke he would go to the mechanics for a replacement. - 4 - Michael Ciechanowicz has had one hand truck break in the sixteen years that he has worked for Beverage Distributors. Ciechanowicz testified that when the hand truck broke he avoided being hurt by letting go. Ralph Cosiano has had four hand trucks break in the sixteen years he has worked for Beverage Distributors. Cosiano testified that he injured his leg when a hand truck broke in February 1993. William Burns, a mechanic for Beverage Distributors since 1978, testified that when hand trucks are damaged the drivers bring them to the mechanics, who either repair or discard them. Burns further testified that Beverage Distributors has ninety to one hundred hand trucks and that he keeps a pool of used and new hand trucks that he uses to replace broken hand trucks brought in by the drivers. Burns stated that the hand truck that Crow was using when he was injured in September 1992 had not been rewelded. He further stated that rewelding did not weaken the hand trucks. He acknowledged, however, that he has stopped rewelding broken hand trucks as a result of Crow's September 1992 injury. II. We address Crow's assignments of error in reverse order. In his second assignment of error, Crow contends that the trial court erred when it found that Beverage Distributors did not know that his injury was substantially certain to occur. We review the entry of summary judgment independently and without deference to the trial court's determination. Murray v. - 5 - Bank One (1994), 99 Ohio App.3d 89, 97. "[I]n an action by an employee against his employer alleging intentional tort, upon motion for summary judgment by the defendant employer, the plaintiff employee must set forth specific facts which show there is a genuine issue of whether the employer had committed an intentional tort against the employee." Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, paragraph seven of the syllabus. In making this determination, a court construes the evidence most strongly for the employee. Civ.R. 56(C); Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraph one the syllabus, held that: 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. (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.) Emphasis added). Fyffe, paragraph two of the syllabus, also held that: - 6 - 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.) Even reviewing the evidence most favorable for Crow, we find that reasonable minds could not conclude that Beverages Distri- butors knew with substantial certainty that Crow would be injured by the hand truck. Accordingly, Crow's second assignment of error is not well taken. III. In his first assignment of error, Crow contends the trial court erred when it found that the use of the hand truck did not constitute a "dangerous process, procedure, instrumentality or condition." Our resolution of Crow's second assignment of error renders it unnecessary to address this assignment of error. See App.R. 12(A)(1)(c). - 7 - Judgment affirmed. - 8 - 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. ANN DYKE, J. and TIMOTHY M. McMONAGLE, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .