COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70094 : RICHARD ZADNIK, ET AL. : : : JOURNAL ENTRY Plaintiff-Appellant : : and v. : : OPINION THE LINCOLN ELECTRIC COMPANY : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-281619 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: For Defendant-Appellee: MICHAEL SHAFRAN, ESQ. JAMES L. McCRYSTAL, ESQ. MICHAEL SHAFRAN & ASSOCIATES GLENN D. SOUTHWORTH, ESQ. 113 St. Clair Building, Suite 375 WESTON HURD FALLON Cleveland, Ohio 44114 PAISLEY & HOWLEY 50 Public Square Cleveland, Ohio 44113-2241 - 2 - KARPINSKI, J.: Plaintiff-appellant, Richard Zadnik, appeals from the judgment of the trial court granting summary judgment in favor of defendant-appellee, Lincoln Electric Company. Plaintiff brought an intentional tort action against defendant after he was injured when the overhead door he was removing fell upon him. On appeal, plaintiff raises one assignment of error, which contends the trial court erred by granting summary judgment on plaintiff's intentional tort claim. For the following reasons, the decision of the trial court is affirmed. Plaintiff began working at Lincoln in 1967. Approximately four years later he was promoted to the maintenance department where his position was "Millwright C." In the next few years he progressed to the position of "Millwright B" and "Millwright A." He described this progression as entailing more responsibility. By 1975, plaintiff was promoted to building maintenance and then a gang leader. Plaintiff was in the position of gang leader when he was injured by an overhead door that fell on him. The door in question was an automatic garage door that measured approximately twenty-two feet high. The frame and the door itself were being removed and the opening bricked up. Plaintiff stated that Lincoln would sometimes give the garage door repair work to outside contractors. Plaintiff testified that he was in charge - 3 - of all the overhead doors and that if he could not repair them, he would hire out the work. Plaintiff supervised the removal of this door. After the three bolts holding the frame were cut, plaintiff recounted the following events. A. I said "Joe, we're going to knock the blocks," which were right here, holding this rail up. That was holding everything up. Okay? I said "Knock the two- by-fours out, the blocking, and the door will fall." And he knocked them out. I says "Paul, keep your head inside. Keep out of the way. It's going to fall." And that's exactly what happened. Q. Well, then what happened? A. Okay. You want me to explain the whole thing? Q. Yes. A. Okay. This side started to fall. It started to come out this way. and this side was -- this side was staying here. Shouldn't have been. It should have just fallen like this, straight down. As it was -- this side was staying, and supposed to do that. MR. SHAFRAN: So you're indicating that the left side was coming down and the right side wasn't coming down? THE WITNESS: Yes. A. So I went immediately -- I was right there. I had grabbed the crowbar, and I'm saying "Something is holding this rail from falling." And I got a crowbar, and I started prying on this rail. Now, I saw this coming down. Okay? I was looking up. And as I was prying this, very apparently when this was bending over like this, it was putting pressure on this bearing or whatever, and it broke very apparently. And the only reason I'm telling you that is because I didn't know what happened at the time. I had no idea, because my lights were out, and I didn't know a thing after that until I woke up and found out what hit me. I didn't even know. I thought a piece of steel fell on me or something, you know, but not the whole door. Something was -- well, that's it. (Zadnik depo. at 119-121.) The trial court granted Lincoln's motion for summary judgment and plaintiff appealed raising one assignment of error which states as follows: - 4 - IT WAS ERROR FOR THE TRIAL COURT TO GRANT SUMMARY JUDGMENT PURSUANT TO FYFFE V. JENO'S INC., (1991) OHIO ST.3D 115. The landmark case, Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, established the cause of action for workplace intentional torts in Ohio. A workplace intentional tort requires proof that the employer either specifically desired to injure the employer or knew that injury was substantially certain to occur. Jones v. VIP Development Co. (1984), 25 Ohio St.3d 90. Later, in Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, the court clarified what must be demonstrated in order to establish "intent" for purposes of intentional torts in the workplace. In paragraph one of the syllabus the court stated 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. (Van Fossen v. Babcock & Wilcox Co. [1984], 36 Ohio St.3d 100, 522 N.E. 2d 489, paragraph five of the syllabus modified as set forth above and explained.) For intentional torts the court has thus established that intent can be proved by establishing that the harm either was directly - 5 - intended or the employer knew it was substantially certain to occur. Harasyn v. Normandy Metals (1990), 49 Ohio St.3d 173. The Ohio Supreme Court recently reiterated the standard for summary judgment as follows: Before summary judgment may be granted, it must be determined that (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 nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. Mootispaw v. Eckstein (1996), 76 Ohio St.3d 383, 385. In the case at bar, the trial court did not err by finding, as a matter of law, that Lincoln did not intend or know with substantial certainty that plaintiff's injuries would occur. It is uncontroverted that Lincoln did not have any knowledge that plaintiff would place himself in harm's way by attempting to pry the door free with a crow bar. If plaintiff, as the person in charge of repairing the doors, did not think he was placing himself in a position where injury was of substantial certainty, it is not reasonable to conclude that Lincoln had superior knowledge an injury was substantially certain to result. Moreover, plaintiff, as gang leader, chose the method of removing the door. He testified he believed the method he chose would permit the job to be done without anyone being hurt. Plaintiff further testified that there were two ways of taking down the door: - 6 - A. I had one of two options. One was to -- after all the skin was gone, you just had like a goalpost type thing sitting up there. Just cut the bolts, which were through the wall, and let it just fall. A piece of cake. Let it fall. We were going to cut it up and throw it away anyway. The second one, which would take much more time, cost more money, was to take the side rails off and get some kind of apparatus to take the barrel down. Okay? To lower that down to the floor, which was 22 feet high. Plaintiff explained that he had used both of these options in the past when taking down doors. Plaintiff thought that the option he chose in this case would be safe for all the workers. Q. You want to take care not to expose them to unnecessary danger? A. Yes. Q. And you didn't think in doing the job you were going about the day of the accident that you were exposing them to unnecessary danger or unreasonable danger? A. I didn't. Q. You thought you had a way to go about this job that would permit it to get down without anybody getting hurt? A. Yes. (Zadnik depo. at 105-106.) If plaintiff, who was in charge, felt that the chosen procedure was safe, no contradictory view of this procedure can be attributed to Lincoln. Plaintiff argues that management's failure to provide a forklift directly resulted in plaintiff's injuries. However, plaintiff, who had observed this procedure before and was in charge, never requested any additional equipment. He also stated that there was never an instance when he requested equipment and was denied by management. Thus there was no evidence from which one could infer that management had an intent or knowledge different from plaintiff's. - 7 - Judgment affirmed. - 8 - It is ordered that appellee recover of appellant(s) 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. PORTER, P.J., and DYKE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .