COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69232 : ACCELERATED DOCKET ROY BEARD, JR., ET AL. : : : JOURNAL ENTRY Plaintiff-Appellants : : and -vs- : : OPINION COLEMAN TRUCKING, INC., ET AL. : : : Defendant-Appellees : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 14, 1995 CHARACTER OF PROCEEDING : Civil appeal from Common Pleas Court Case No. CV-275287 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellants: For defendant-appellees: ROY C. MORSCHER MICHAEL T. HONOHAN Morscher & Straka PETER R. HARWOOD The Brighton Bldg., Suite 56 600 Superior Avenue 11711 Lorain Avenue 1400 Bank One Center Cleveland, Ohio 44111 Cleveland, Ohio 44114-2652 - 2 - PER CURIAM: Roy Beard appeals the trial court's decision to grant Coleman Trucking, Inc.'s motion for summary judgment thereby denying recovery on this intentional tort claim. Having reviewed the record and applicable law in this case, and having considered the arguments of counsel, we affirm the decision of the trial court. The facts reveal that on September 7, 1993, Alfred Jones, an employee of Coleman Trucking, Inc., supervised the asbestos removal demolition project at 8318 Quincy Avenue in Cleveland, Ohio, where Beard and two others were employed on a one-day asbestos removal job. The nature of the task requires the interior of the building be sealed to prevent the escape of asbestos particles during removal. Because the building had no electricity, Coleman provided a gas generator as a power source for lights and tools. When one of the workers complained of illness from the exhaust fumes being emitted from the generator inside the sealed building, Jones turned it off and he and others went outside for about fifteen minutes. Jones did not want to move the generator outside because of his fear that it might be stolen, but in his affidavit he states he moved it between plastic flaps on the building to enable fumes to escape outside. Some time after lunch in the mid-afternoon, after the work was completed but before loading the equipment, Beard advised Jones - 3 - that he was not feeling well; Jones told Beard to go home. Beard then left the job site, drove to Mount Sinai Hospital where he was diagnosed with carbon monoxide poisoning, admitted overnight, and released the following day. Thereafter, on August 12, 1994, Beard and his wife Jesse sued Coleman Trucking to recover damages for intentional tort. Coleman denied committing an intentional tort and filed for summary judgment, which the court granted "because on the material undisputed fact the plaintiff is not entitled to judgment as a matter of law. The evidence does not establish the intentional infliction of harm." This appeal raises one assignment of error for our consideration: THE TRIAL COURT WAS IN ERROR IN GRANTING SUMMARY JUDGMENT AGAINST THE PLAINTIFF-APPELLANTS HEREIN, CONTRARY TO THE REQUIREMENTS OF CIVIL RULE 56(C), BY FAILING TO CONSTRUE THE EVIDENCE PRESENTED IN A LIGHT MOST FAVORABLE TO THE NON-MOVING PARTY, AND PROPERLY APPLY SUCH EVIDENCE TO THE FYFFE TEST TO DETERMINE IF AN INTENTIONAL TORT WAS COMMITTED BY AN EMPLOYER. Upon review of a matter involving summary judgment, both the trial court and the appellate court review the facts independently pursuant to the standard set forth in Civ. R. 56(C), which states in part: *** Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, *** show that there is no genuine issue as to any material - 4 - fact and that the moving party is entitled to judgment as a matter of law. ***. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. *** Also, as stated in paragraph 3 of the syllabus in Wing v. Anchor Media (1991), 59 Ohio St.3d 108, the law is well established that, "A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial (Celotex v. Catrett [1986], 477 U.S. 317, approved and followed.)" In this case, then, in order to defeat the motion for summary judgment, while Beard is entitled to have the evidence construed most strongly in his favor, he must establish both a genuine issue of material fact and his entitlement to judgment as a matter of law. With that foundation, we now examine the law of intentional tort in Ohio. In Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, the court set forth the law necessary to establish "intent" for the purpose of proving the existence of an intentional tort in paragraph one of the syllabus: 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 - 5 - 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.) And, in paragraph two of the syllabus the court compared negligence, recklessness, and intent: 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 six of the syllabus, modified as set forth above and explained.) In support of the claimed intentional tort Beard urges that operation of a gasoline powered generator without ventilation in - 6 - a sealed building provides evidence of a dangerous condition; that knowledge of a substantial certainty of harm from exposure is established because of the morning episode; and the requirement of continued performance is demonstrated because the generator was neither moved outside nor turned off. Coleman claims the elements of intentional tort have not been met because no evidence was presented that Jones knew of a dangerous condition since he did not have actual knowledge the generator emitted carbon monoxide gas; also, that no knowledge of certainty of harm exists because Jones moved the generator closer to the doorway and no one other than Beard became ill; lastly, Coleman urges that knowledge that an employee has been required to perform a job which involves risk does not equate to intentional tort. In this case, our review leads us to the conclusion that the material facts as presented are not disputed. Beard, while in the company of two co-workers and a supervisor, suffered carbon monoxide poisoning during an asbestos removal project. None of the others similarly situated was hospitalized with that problem. We are mindful that the syllabus paragraphs in Fyffe quoted herein, define not only the elements which an employee must establish in order to prevail, but also describe the degree of culpability which an employee must demonstrate in order to recover for an intentional tort. - 7 - Based upon the facts of this case, Beard has not provided evidence from which a fact finder could conclude that Coleman had knowledge Beard's illness was substantially certain to occur because other workers in the same situation did not also become ill. This militates against the establishment of knowledge that injury was substantially certain to occur. Further, absent evidence of substantial certainty, mere knowledge and appreciation of a risk does not constitute Coleman's intent to injure Beard. See paragraph 2 of the syllabus in Fyffe, supra. Accordingly, plaintiff has not proven the requisite degree of culpability needed to establish an intentional tort. For these reasons, we conclude Beard's assignment of error is not well taken and we therefore affirm the judgment of the trial court. - 8 - It is ordered that appellee recover of appellant 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. PATRICIA BLACKMON, PRESIDING JUDGE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE 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, .