COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70657 FRED MASON ANDERSON, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : ZAVARELLA BROS. CONSTRUCTION CO. : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-284623. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Richard O. Mazanec, Esq. Robert C. Reed, Esq. John D. Wheeler, Esq. 1801 East 9th Street Suite 1710 Cleveland, OH 44114 For Defendant-Appellee: Jan L. Roller, Esq. Dennis R. Fogarty, Esq. Davis & Young 1700 Midland Building 101 Prospect Avenue Cleveland, OH 44115-1027 -2- DAVID T. MATIA, P.J.: Fred Mason Anderson, et al., plaintiffs-appellants, appeal from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CP-284623, which granted the motion for summary judgment of Zavarella Brothers Construction Company, defendant-appellee. Plaintiffs-appellants assign one error for this court's review. Plaintiffs-appellants' appeal is well taken. I. THE FACTS Fred Anderson, his wife Judith Anderson, and their children Julie Ann Anderson, Jennifer Anderson and Jeneen Anderson, plaintiffs-appellants, bring suit against Fred Anderson's employer, Zavarella Brothers Construction Company, defendant-appellee, alleging intentional tort liability arising out of an accident which occurred on February 14, 1994. Zavarella Brothers, a masonry contractor, employed Fred Anderson as an operating engineer and mason's laborer since April 16, 1987. Fred Anderson was generally responsible for erecting and working upon scaffolding. Zavarella Brothers regularly conducted what it termed "Toolbox Safety Talks" at various construction sites. Fred Anderson attended two "Toolbox Safety Talks" regarding scaffold safety on August 13, 1993 and October 15, 1993. Zavarella Brothers was hired as a masonry subcontractor by M.E. Osborne Company to perform work at the Nason Center Addition at Breckenridge Village Nursing Home at 36855 Ridge Road, Willoughby, Ohio. Prior to December, 1993, Zavarella Brothers erected a scaffold along the west wall of the Nason Center. The scaffold was -3- a three level, tubular welded frame, the floor of each level consisting of five sixteen-foot wooden planks. The floor of the third level was approximately twenty feet above the ground and one hundred eighty feet long. The third level did not have guardrails, end rails, cross-braces or toe boards on the day of Fred Anderson's injury. The failure to install guardrails and toe boards constituted a violation of the Occupational Safety and Health Administration provisions for which Zavarella Brothers had been cited on five prior occasions between 1985 and 1993. During the winter of 1993-94, severe temperatures prevailed limiting work on the Nason Center project. Between December 23, 1993 and February 14, 1994, only four days work was completed on the project by Zavarella Brothers. On February 14, 1994, the day of Fred Anderson's injury, the temperature was approximately thirty degrees fahrenheit and the scaffolding at the Nason Center project was covered with snow and ice. Dave Conley, project foreman for Zavarella Brothers, instructed Bryan Fugate and Nick Latkovic, two employees of Zavarella Brothers, to remove snow and ice from the scaffolding as the temperature was expected to rise above freezing later in the day allowing the bricklayers to work. Conley instructed Fred Anderson to place a heating tube into a sand pile in order to warm the sand to a workable temperature. Conley maintains that this was the only instruction given to Fred Anderson that day. Anderson does not recall any of the events which occurred on the day of his injuries however he does recall a -4- conversation between himself and Dave Conley which occurred several weeks prior to Anderson's fall in which Conley instructed Anderson to prepare the scaffolding near the chapel window for the bricklayers when the temperature warmed. Anderson was working on the section of scaffolding near the chapel window when he fell and was injured. Richard Yerse, a mason bricklayer with Zavarella Brothers for approximately ten years, was the only person to witness Fred Anderson's fall from the scaffold. Yerse observed Anderson on the third level of scaffolding standing on the very end of the outer most plank. Anderson was holding a sixteen-foot plank which he tossed across an opening onto another section of scaffolding. After tossing the plank, Anderson lost his balance and fell from the scaffolding. As a result of the fall, Anderson suffered a broken neck causing total paralysis from the neck down. On February 10, 1995, Fred Anderson, et al., plaintiffs- appellants, filed suit against Anderson's employer Zavarella Brothers Construction Company, defendant-appellee, alleging that an intentional tort had been committed by Zavarella Brothers causing Fred Anderson's injury. Plaintiffs-appellants also sued the general contractor for the Nason Center project, M.E. Osborne Company. On February 1, 1996, Zavarella Brothers filed a motion for summary judgment on plaintiffs-appellants' intentional tort claim. Zavarella Brothers argued that Fred Anderson was not ordered to work upon the scaffolding on February 14, 1994 but went up on his -5- own volition unknown to Zavarella Brothers project foreman Dave Conley. On March 1, 1996, plaintiffs-appellants filed their brief in opposition to Zavarella Brothers' motion for summary judgment. On April 26, 1996, the trial court issued the following judgment entry: Construing evidence in a light most favorable to plaintiffs, no material facts remain at issue which would establish the claim of intentional tort. Plaintiff has not demonstrated that it can meet the criteria established in Fyffe v. Jeno's Inc. (1990), 59 Ohio St.3d 115 and Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100. Plaintiff has previously dismissed all claims against defendant M.E. Osborne Co. pursuant to ORCP 41(A)(1). Summary judgment is therefore granted to defendant Zavarella on all claims of plaintiffs. Plaintiffs['] motion for partial summary judgment is denied. There being no further claims or dispositive motions outstanding, the within case is dismissed. Costs to plaintiffs. Final. Vol 1954 Pg 843. On May 14, 1996, plaintiffs-appellants filed a timely notice of appeal from the judgment of the trial court. II. ASSIGNMENT Fred Anderson, et al., plaintiffs-appellants', sole assignment of error states: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE THE PLAINTIFFS HAVE PRODUCED EVIDENCE FROM WHICH REASONABLE MINDS COULD CONCLUDE THAT ALL THREE ELEMENTS OF THE FYFFE TEST FOR AN INTENTIONAL TORT HAVE BEEN SATISFIED MAKING SUMMARY JUDGMENT INAPPROPRIATE. -6- A. THE ISSUE RAISED: SUMMARY JUDGMENT ON AN INTENTIONAL TORT CLAIM. Plaintiffs-appellants argue, through their sole assignment of error, that the trial court improperly granted summary judgment in favor of Zavarella Brothers Construction Company on plaintiffs-appellants' intentional tort cause of action. Specifically, plaintiffs-appellants maintain that all three elements of an employer intentional tort, as set forth by the Ohio Supreme Court in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, were satisfied in this case. In addition, plaintiffs- appellants maintain that the case law upon which Zavarella Brothers relied in support of the motion for summary judgment is distinguishable from the facts of the instant case and therefore is inapplicable. Plaintiffs-appellants' sole assignment of error is well taken. B. STANDARD OF REVIEW FOR SUMMARY JUDGMENT. Civ.R. 56(C) provides that before summary judgment may be granted, the court must determine 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; (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 party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Osborne v. Lyles (1992), 63 Ohio St.3d 326. A motion for summary judgment forces the non-moving party to produce evidence on issues for -7- which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108 (syllabus). The non-movant must also present specific facts and may not rely merely upon the pleadings or upon unsupported allegations. Shaw v. Pollack & Co. (1992), 82 Ohio App.3d 656. When a party moves for summary judgment supported by evidentiary material of the type and character set forth in Civ.R. 56(E), the opposing party has a duty to submit affidavits or other material permitted by Civ.R. 56(C) to show that there is a genuine issue for trial. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Ohio Supreme Court recently discussed the proper standard to be applied when reviewing summary judgment motions. The court found as follows: Again, we note that there is no requirement in Civ.R. 56 that any party submit affidavits to support a motion for summary judgment. See, e.g., Civ.R. 56(A) and (B). There is a requirement, however, that a moving party, in support of a summary judgment motion, specifically point to something in the record that comports with the evidentiary materials set forth in Civ.R. 56(C). Id. at 298. This court's analysis of an appeal from a summary judgment is conducted under a de novo standard of review. See Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107; Howard v. Willis (1991), 77 Ohio App.3d 133. No deference is given to the decision under review, and this court applies the same test as the trial court. Bank One of Portsmouth v. Weber (Aug. 7, 1991), -8- Scioto App. No. 1920, unreported. C. STANDARD OF REVIEW FOR AN INTENTIONAL TORT. In order to establish intent for the purpose of proving the existence of an intentional tort committed by an employer against one of its employees, the employee must demonstrate the following: (1) knowledge by the employer of the existence of a dangerous condition, process, procedure or instrumentality within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous condition, process, procedure or instrumentality, 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. Fyffe v. Jeno's, Inc., supra, paragraph one of the syllabus; Shannon v. Waco Scaffolding & Equipment (July 27, 1995), Cuyahoga App. No. 67604, unreported. The determinative issue in an intentional tort case concerns the employer's intent to cause an injury to its employee. The employee need not prove the employer had an actual subjective intent to cause the injury or that the employer knew that the exact injury sustained would occur. Fyffe, supra, at 117. However, the mere knowledge and appreciation of a risk does not constitute intent. The employee must show that the injuries in question are certain or substantially certain to result from the process, procedure or condition and the employer proceeds in -9- spite of the known risk. Id. at paragraph two of the syllabus. The plaintiff bears the burden of establishing these elements by proof beyond that required to show negligence or recklessness. Savak v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172; Brady v. Safety-Kleen Corp. (1991), 61 Ohio St.3d 624, 631. The question of "substantial certainty" is dependent upon the individual facts of each underlying case. Richie v. Rogers Cartage Co. (1993), 89 Ohio App.3d 638, 644. Prior safety violations do not, in and of themselves, demonstrate an employer's intent to harm. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, the court stated: 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 worn 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" and therefore an exception, under Blakenship or Jones, to the exclusivity of the Act. Id. at 117. D. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFFS-APPELLANTS' INTENTIONAL TORT CAUSE OF ACTION. In the case sub judice, a review of the record from the court below demonstrates that genuine issues of material fact exist regarding the three elements of plaintiffs-appellants' intentional tort cause of action thereby precluding judgment as a -10- matter of law. Plaintiffs-appellants maintain that Fred Anderson's injuries were foreseeable and substantially certain to occur given the fact that Anderson was "required" to work upon snow covered scaffolding which did not have safety guardrails or toeboards as required by OSHA. Applying the three-prong Fyffe test to the facts of the present case, it becomes apparent that it was error for the trial court to grant summary judgment in favor of Zavarella Brothers Construction, defendant-appellee. The first prong of the Fyffe test requires plaintiffs- appellants to present facts to demonstrate that Zavarella Brothers had knowledge of the existence of a dangerous condition, process, procedure or instrumentality within its business operation. A review of the evidence set forth by plaintiffs- appellants reveals the following: between 1985 and 1993 Zavarella Brothers Construction was cited by OSHA on five separate occasions for failure to install the proper number of required guardrails and toeboards on scaffolding at various construction sites; and deposition testimony was presented to the effect that Zavarella Brothers failed to keep and maintain an adequate supply of scaffolding guardrails for use at the Nason Center project making compliance with OSHA regulations impossible. Viewing the evidence presented in a light most favorable to plaintiffs-appellants, it is clear that a genuine issue of material fact exists as to Zavarella Brothers' knowledge of a dangerous condition, process, procedure or instrumentality present at the Nason Center project. Accordingly, sufficient -11- evidence was presented for summary judgment purposes to overcome the first element of the Fyffe test. The second element of the intentional tort test requires a showing of knowledge by Zavarella Brother that if Fred Anderson was subjected by his employment to the above-mentioned dangerous condition, process, procedure or instrumentality, then harm to Anderson would be a substantial certainty. On the day of Fred Anderson's injury, the scaffolding in question was covered with ice and snow and the temperature was below freezing. Not only were the upper sections of the scaffolding unprotected by guardrails as required by OSHA but Zavarella Brothers did not use a safety harness on the unprotected section. Ohio Industrial Commission Safety Requirements provide for a safety line as an alternative to guardrails. (See Affidavit of Charles R. Haines, P.E., CSP, attached as Exhibit One to plaintiffs-appellants' brief in opposition to defendant-appellee's motion for summary judgment.) In addition, on September 7, 1988, a Zavarella Brothers' employee was injured after falling from a 6th floor deck which was not properly protected by guardrails. Zavarella Brothers was cited for a safety violation as a result of this accident. Viewing the above-mentioned evidence in a light most favorable to plaintiffs-appellants, it is apparent that a genuine issue of material fact exists as to whether Zavarella Brothers knew that harm to Fred Anderson was substantially certain to occur as a result of the snow and ice covered scaffolding, the higher levels of which were not protected by guardrails or other -12- safety equipment. See Emminger v. Motion Savers, Inc. (1990), 60 Ohio App.3d 14. The third and final element of the test for an intentional tort states that the employer, with knowledge of the dangerous condition, process, procedure or instrumentality within its business operation and with knowledge that, if subjected to the dangerous condition, process, procedure or instrumentality, harm to the employee will be a substantial certainty, still requires the employee to continue to perform the dangerous task. Dave Conley, project foreman for Zavarella Brothers, testified during his deposition as follows: Q. Did you on February 14, 1994, give any special instructions to Andy as to where to work on the scaffolding? A. No. Q. Did you give him any specific instructions? A. Yes. Q. On February 14, 1994, what were your instructions to him? A. My instructions were for him to put the heat tube in the sandpile. Q. And that is all that you said to him? A. Yes. Q. You had no other conversations with him about what he was supposed to do that day? A. Not about his duties, no. Q. Did you know how he got to the job site? Do you know how he was informed that they were working that day? -13- A. No, I don't. Q. Before Andy fell, did you see where Andy was up on the scaffolding? A. No. (Tr. 91-92.) Fred Anderson does not remember any of the events on the day he was injured but contends that he was required by Zavarella Brothers to continue to perform a dangerous task. Anderson maintains in his affidavit attached to the plaintiffs-appellants' brief in opposition to defendant-appellee's motion for summary judgment that: *** I believe that on February 14, 1994, I was on the third tier of scaffolding to the right of the 45 degree because several weeks prior to this date, my foreman, Dave Conley, specifically told me to plank out the section of scaffolding to the left of the 45 degree angle under the window on the third tier the very first day we returned to work after a break in the weather. (Emphasis added.) Construing Dave Conley's deposition testimony and Fred Anderson's affidavit in a light most favorable to plaintiffs- appellants, there is a genuine issue of material fact as to whether Zavarella Brothers actually required Fred Anderson to work upon the scaffolding on February 14, 1994 or whether Anderson worked upon the scaffolding on his own volition. This is particularly true in light of Anderson's contention that he was told to plank the scaffolding the first day back at work. Accordingly, since genuine issues of material fact exist regarding all three elements of the intentional tort test set -14- forth in Fyffe and Van Fossen, the trial court erred in entering summary judgment in favor of Zavarella Brothers Construction Company, defendant-appellee. Walton v. Springwood Products, Inc. (1995), 105 Ohio App.3d 400, 404. Plaintiffs-appellants' sole assignment of error is well taken. Judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion. -15- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellants recover of said appellee costs herein. It is ordered that a special mandate be sent to said 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. DYKE, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA PRESIDING 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 .