COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68811 FRANCES J. BRUNN, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION VALLEY TOOL & DIE, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION NOVEMBER 9, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 273093 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: TIMOTHY L. ZIX, ESQ. KEITH A. VANDERBURG, ESQ. 1109 Rockefeller Bldg. CHRISTOPHER A. HOLECEK, ESQ. 614 W. Superior Avenue Wegman, Hessler, Vanderburg Cleveland, Ohio 44113 & O'Toole Co., L.P.A. 6100 Rockside Woods Blvd. LAURA DAFFNER-GULLA, ESQ. Suite 345 27025 Knickerbocker Road Cleveland, Ohio 44131 Suite 10 Bay Village, Ohio 44140 - 2 - JAMES M. PORTER, P.J., Plaintiffs-appellants Frances J. Brunn ("plaintiff") and her husband John appeal the order granting summary judgment to her employer, defendant-appellee Valley Tool & Die, Inc. arising out of her intentional tort claim for injury while operating an hydraulic power press at work. Plaintiffs claim there were genuine issues of material facts which precluded summary judgment. We find no error and affirm for the reasons hereinafter stated. On June 30, 1993, plaintiff fractured her left forearm while operating a hydraulic power press at Valley Tool. Valley Tool is a closely held business owned by members of plaintiff's immediate family. Plaintiff had been employed as a press operator at Valley Tool for nearly two years. Plaintiff's father is the plant manager and was her immediate supervisor at the time of her injury. Her husband John and her two brothers were also employed at Valley Tool. The press involved in the injury is an eight-ton hydraulic power press that has been used at Valley Tool since 1984. Plaintiff was assigned to this press by her father two days before the episode leading to her injury. The press was retrofitted for the production run and plaintiff began operating the press on June 30, 1993. At the time of injury, she was working on an order resizing approximately 2,000 cylindrical parts. The job called for plaintiff to manually place each part into a recessed area in the lower die, remove both of her hands from the - 3 - die area, and activate the press by depressing the foot pedal. Once activated, the ram would slowly descend approximately six inches, make contact with the lower die, then automatically return to its resting position. The operator could stop the ram's descent at any time by removing her foot from the foot pedal. Once the "operating cycle" was completed, the operator would remove her foot from the pedal, manually remove the finished part from the lower die, and hand the part to a quality control employee for inspection. According to plaintiff, she felt "comfortable" working on this particular assignment and never perceived it to be dangerous. On the day of the accident, plaintiff estimated that two parts had fallen behind and outside the die area. Plaintiff conceded that these parts did not interfere with the stamping and they could have been safely retrieved if she stood up or by reaching around (rather than through) the die area. Prior to her injury, plaintiff had retrieved the two fallen parts by reaching her arm through the five inch opening (the impact area) below the ram. There was no evidence that her supervisor or the quality control inspector knew plaintiff was using this method of retrieval. Plaintiff was injured when she attempted to retrieve a third part that had fallen behind, below and outside of the die area. As she reached through the die area, the ram inexplicably closed on her forearm. She testified that her foot did not come in contact - 4 - with the foot pedal and that she did not otherwise cause the ram to close. Whether the press malfunctioned is unknown. This was the first injury sustained on the press in question. There was no evidence that the press in question had malfunctioned prior to or following plaintiff's injury. There was no evidence that Valley Tool or its supervisors were aware that any other press operator had ever reached through the die area of any press, including the one in question. Plaintiff, on deposition, testified that her injury occurred during a "rushed production" order because it was her "impression" that the order was behind schedule. She had not been asked "to work faster than normal" or beyond her capabilities. Plaintiff agreed "it was just another job." Because each of the 2000 parts had to be lubricated prior to stamping and were individually inspected after stamping, her particular assignment progressed slower than normal. Press operators at Valley Tool are compensated on an hourly basis only, not by "piece" work and plaintiff was not working under a "production quota" of any kind. Defendant maintained there was a significant distinction between inserting and/or removing parts from within the die area of a hydraulic press by hand and placing one's arm through the impact zone, as plaintiff did in this case. It is not disputed that Valley Tool knew plaintiff was manually inserting and removing parts from within the die area of the press in normal operation, as this was the only way to operate the press on the specific run. - 5 - However, there was no evidence that anyone at Valley Tool, including plaintiff's father, knew in advance that plaintiff would place her arm through the die area of the press. A quality control employee testified that, in light of plaintiff's accident, a hand activated press would, in hindsight, be "safer" than a foot-activated press because "it eliminates some of the possibilities of accidents." He also testified he would have run the job, that it was safe when used properly and that sticking her arm through the die "was an improper use." Valley Tool filed for summary judgment with supporting briefs and deposition testimony of plaintiff and other employees. Over plaintiffs' opposition, on March 14, 1994, the trial court granted defendant's motion and this timely appeal ensued. Plaintiffs' sole assignment of error states at follows: I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION FOR SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THE DEFENDANT-APPELLEE COMMITTED AN INTENTIONAL TORT ON JUNE 30, 1993. This appeal turns on application of the intentional tort doctrine that holds the employer liable when it in fact knows that the existence of a dangerous condition is substantially certain to cause injury or death to the employee. The Supreme Court in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, paragraphs one and two of the syllabus, sets forth the law applicable to an intentional tort action brought against an employer: - 6 - 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 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.) The difficulty in measuring the question of intent or the employer's knowledge of conditions that are substantially certain - 7 - to cause harm was well described in Richie v. Rogers Cartage Co. (1993), 89 Ohio App.3d 638, 644: The difficult issue in any employer intentional tort case is the degree of risk the employer can take before its conduct is legally considered to be, or can legally be inferred to be, an intentional act to injure. The employee need not prove that the employer had an actual subjective intent to cause the injury sustained or that the employer knew that the exact injury sustained would occur. Id. at 117, 570 N.E.2d at 1111. However, the mere knowledge and appreciation of a risk is not enough. Id., paragraph two of the syllabus. The employee must prove that the employer knew that because of the exact danger posed, the employee would be harmed in some manner similar to the injury sustained or that the employer knew that because of the exact danger posed, it was highly probable (substantially certain) that the employee would be harmed in some manner similar to the injury sustained. Id. What constitutes a "substantially certain" result will vary from case to case based on the facts involved. As the Supreme Court noted in Van Fossen v. Babcock & Wilcox Co., supra, 36 Ohio St.3d at 117, 522 N.E.2d at 504: "There are many 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' Compensation Act, such conduct should not be classified as an 'intentional tort' ***." Therefore, the intentional tort cause of action is limited to egregious cases. Sanek v. Duracote Corp., supra, 43 Ohio St.3d at 172, 539 N.E.2d at 1117. - 8 - The focus in an intentional tort case is on the employer's prior knowledge regarding the risk of injury to the employee. Under the first and second parts of the tri-partite Fyffe test, the employee must show that "the employer had 'actual knowledge of the exact dangers which ultimately caused' injury." Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172; Lucas v. RCA Rubber Co. (1994), 93 Ohio App.3d 389, 391; McConville v. Jackson Comfort Systems (1994), 95 Ohio App.3d 297, 303; Burns v. Presrite Corp. (1994), 97 Ohio App.3d 377, 383; Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740, 746. Plaintiff argues that she satisfied the first part of the Fyffe test because her father assigned her to an "unguarded, hand- loaded, foot-activated punch press, 'that required her' to place her hands and arms into the impact area of a foot-activated punch press without any safety guards or tools." (Aplnt's Brf. at 6 and 8). This argument is not persuasive, factually or legally. Plaintiff was not injured while manually inserting or removing a part from within the die area of the press during the operating cycle. The specific state rule that pertains to point of operation safeguarding for hydraulic power presses is found in Ohio Adm. Code 4121:1-5-11(E), which requires that hydraulic presses "be constructed or shall be guarded, to prevent the hands or fingers of the operator from entering the danger zone during the operating cycle." - 9 - In interpreting this provision, the Ohio Supreme Court found that the Industrial Commission's interpretation of the rule was correct and that an operator of a hydraulic power press could manually insert, adjust and remove parts from within the die area before and after the press completes its operating cycle without exposure to a safety violation. State ex rel. Aspinwall v. Indus. Comm. (1988), 40 Ohio St.3d 55. "[O]perating cycle" means "operator-intended ram movement." It does not include the insertion of a piece through its final removal, any mid-phase adjustments, or part removal. Aspinwall at 58. In the instant case, it is undisputed that plaintiff's injury occurred while she was attempting to remove a part that had fallen outside the die area after the press had completed its operating cycle. It is also undisputed that the press cycled unexpectedly in that plaintiff neither intended nor caused the ram to close by activating the foot pedal. The injury to plaintiff resulted from her placement of her arm through the die area of the press, not in the course of operation of a "hand-loaded foot-activated hydraulic press." The critical issue here is whether Valley Tool possessed prior knowledge that plaintiff would place her arm through the die area of the press and that the press would close on her arm. Plaintiff conceded at deposition that no one at Valley Tool knew that any of the parts had ever fallen behind and outside the die area; nor did anyone know that she had ever reached her arm - 10 - through the die area of the press to retrieve fallen parts. (Pltf. Depo. pp. 116-117). Plaintiff's argument that Valley Tool "required" her to "repeatedly" place her arm inside the "impact zone" of the press is without any support in the record and is contrary to plaintiff's deposition testimony. Plaintiff also conceded that because she placed her arm inside the impact zone, a hand tool would not have prevented her accident. (Pltf. Depo. pp. 121-122). The perception of danger test refers to the employer's prior knowledge concerning the exact danger posed to the employee. As the Supreme Court stated in Van Fossen at 117, there are "many acts within a manufacturing process which involve the existence of dangers." However, employer intentional torts are limited to only the most "egregious cases" where the employer is shown to have deliberately ignored a known risk of harm. Sanek at 172. Since there was no evidence that anyone at Valley Tool knew that plaintiff would place her arm through the impact zone of the press, the first part of the Fyffe test is not met as a matter of law. The plaintiff was also unable to satisfy the second part of the Fyffe test. The injured employee must demonstrate that the employer had knowledge of the existence of a dangerous process, procedure, instrumentality, or condition along with knowledge that harm is substantially certain to occur. Burns v. Presrite Corp. (1994), 97 Ohio App.3d 377; Ritchie v. Rogers Cartage Co. (1993), 89 Ohio App.3d 638, 644. - 11 - Plaintiff's argument posits that Valley Tool had knowledge that the injury was "substantially certain" to occur because Valley Tool should have known: that a part could fall behind and below the lower die; that without a fixed barrier guard for the die, an operator might reach her arm through the die area; that the ram could accidentally close on the operator's arm; and that installing a "hand-loaded die to a foot-activated press" created a "possibility" of such an injury. This kind of speculation does not meet the appropriate standard. As stated in Youngbird, supra at 746: It must be emphasized that this [the Fyffe test] is not the "reasonable person" standard for determining negligence or recklessness; that is, the fact that the employer should have known it was requiring the employee to work under such dangerous conditions that he would certainly be injured is not enough to establish a case in intentional tort. (Emphasis in original.) Furthermore, that something could possibly happen is not sufficient to sustain an an intentional tort claim because "mere knowledge and appreciation of a possible risk of injury" is not enough. Van Fossen, paragraph six of syllabus.; Wehri v. Country- Mark, Inc. (1992), 82 Ohio App.3d 535, 538. The employer must have "actual knowledge of the exact dangers which ultimately caused injury." Sanek, supra at 172; Gross v. Western-Southern Life Ins. Co. (1993), 85 Ohio App.3d 662, 673. Establishing substantial certainty of harm is difficult where, as in this case, there are no prior accidents of a similar - 12 - character evidencing a dangerous condition. Foust v. Magnum Restaurants, Inc. (1994), 97 Ohio App.3d 451, 455 (absence of prior accidents "strongly suggests" injury from the procedure was not substantially certain to occur); Wehri, supra at 539; Gray v. Continental Alloy Steel Co. (1990), 70 Ohio App.3d 525; Zinc v. Owens-Corning Fiberglass Corp. (1989), 65 Ohio App.3d 637. No evidence was presented to show that the specific press had malfunctioned prior to plaintiff's injury or that any employee had been injured on the press. This case is also distinguishable from our recent decision in Stump v. Industrial Steeplejack Co. (May 11, 1995), Cuyahoga App. No. 66937, unreported, which both parties cite, where we found the employer's intentional or deliberate disregard of imminent harm. There, the employee suffered serious injuries arising out of his fall from his employer's scaffold. The accident occurred when the scaffold's support rope separated. The evidence established that the employer possessed prior knowledge that the rope was "rotted and deteriorated," yet the employer's supervisor intentionally ignored this risk and instructed the employee to use the scaffold. We do not find the same disregard for risk of imminent injury here. Plaintiff in this case was not acting under her employer's instruction or direction when she placed her arm into the press. The employer had no reason to anticipate her act. This is not a case where an employee was compelled to work on a machine that was known to be unsafe. Since Valley Tool did not know that plaintiff - 13 - would place her left arm through the die area of the press, plaintiffs also failed to satisfy the third part of the Fyffe test: that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. Id., paragraph one of syllabus. 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 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 - 14 - 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). We have carefully considered plaintiff's remaining arguments: that a foot-activated press is more likely to cause injury than a hand-activated press; that a fixed barrier guard was removed; that defendant was "warned" by a letter from a mechanical punch press manufacturer about guarding requirements; and that palm-buttons or hand-tools may have prevented the injury. While these arguments may have raised questions about the employer's negligence or even recklessness, that is not sufficient to sustain the burden of knowledge of substantial certainty of injury required by Fyffe, paragraph two of the syllabus. We find the recent holding of this Court in McGlothin v. LTV Steel Company (Oct. 12, 1995), Cuyahoga App. No. 68522, unreported at 11-12 appropriate: 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 - 15 - 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, 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. Plaintiff also acknowledged that there were other safer methods to remove the fallen parts, such as standing up and/or reaching around the die from either side. (Pltf. Depo. at 123- 126). An employer cannot be expected to anticipate an employee's actions that lead to an injury where the employee has alternative means of proceeding and avoiding exposure to injury. Van Fossen, supra at 118; McConville, 95 Ohio App.3d at 303; Schiffer v. MTD Products, Inc. (April 13, 1990), Huron App. No. H-89-15, unreported. Plaintiff has failed to set forth specific facts that would allow reasonable minds to conclude that Valley Tool knew that Brunn's injuries were substantially certain to occur. For the reasons hereinbefore stated, we find appellants' sole assignment of error without merit. It is overruled. Judgment affirmed. - 16 - 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 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. NAHRA, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER 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 it will become the judgment and order of the court and time period for review will begin to run. .