COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70603 : EDWARD HUGNEY, ET AL. : : JOURNAL ENTRY Plaintiffs-Appellants : : and -vs- : : OPINION : TREMCO, INC. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT MARCH 20, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 280144 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: RICHARD A. VADNAL, ESQ. THOMAS J. KAISER, ESQ. 1650 Midland Building Gallagher Sharp Fulton & Norman 101 Prospect Avenue 1501 Euclid Avenue, 7th Fl. Cleveland, Ohio 44114-1027 Cleveland, Ohio 44115 -2- PATRICIA ANN BLACKMON, J.: Edward and Patricia Hugney, plaintiffs-appellants, appeal a directed verdict granted in favor of Tremco, Inc. defendant- appellee and assigns the following error for our review: WHETHER THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR A DIRECTED VERDICT IN AN EMPLOYMENT INTENTIONAL TORT CASE WHERE THERE WAS SUBSTANTIAL COMPETENT EVIDENCE PRESENTED AT TRIAL BY APPELLANTS MEETING ALL OF THE ELEMENTS SET FORTH IN FYFFE V. JENO'S, INC. (1991), 59 OHIO ST.3D 115, 570 N.E.2D 1108. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. On May 18, 1993, Edward Hugney was an electrician and employed by Tremco, Inc. in the maintenance department at their plant in the city of Cleveland. Tremco decided to move a Cowles mixer from their Cleveland plant to a location in California where it would be more useful. The Cowles mixer was approximately 10 to 12 feet high and weighed between 1,000 and 2,000 pounds. As plant manager, Mark Horvath, turned the responsibility of moving the mixer out of the plant over to the plant engineer, Michael J. Timko, Jr. Timko discussed moving the mixer with the foreman of the maintenance workers, George Ball. Timko testified he had concerns about whether the mixer could be moved without hiring outside riggers, but they never came to any resolution. On an occasion prior to moving the Cowles mixer, maintenance workers had moved a Meyers mixer, which was bigger than the Cowles mixer. -3- Ball testified Timko ordered him to move the mixer. At trial, Ball testified the forklift was sufficient to do the job and he had confidence in his workers. However, he admitted his testimony was different than his deposition testimony. In his deposition, he testified he did not think his workers could do the job safely, and moving the mixer was a job for an outside contractor. Ball assigned Hugney and Dan Elswick to move the mixer. Ball supervised the move. Hugney disconnected the electricity, and Elswick disconnected the hydraulics to the mixer. Elswick used a forklift truck to move the mixer from its original spot. When they tried to move the mixer off the forklift, it got stuck in the mast of the forklift. The weight of the mixer was not balanced. The motor, the heaviest part of the mixer, was located on top and off to one side, which made the forklift "top heavy." Ball, Elswick, and Hugney agreed the best way to move the mixer was to use a second forklift to turn it on its side. The second forklift was driven by Ray Johnson. While the mixer was leaning on one of the forklifts, Ball ordered Hugney to take a link out of a chain wrapped around the mixer so that the mixer could be firmly secured. Hugney stepped onto the dash of the forklift when the mixer fell on his left leg. As a result of his injuries, he underwent between 12 to 18 surgical procedures in an attempt to save his leg, but eventually it had to be amputated. Edward and Patricia Hugney filed a complaint against Tremco and alleged an intentional tort and a "sustained loss of consortium***." The case proceeded to trial and the trial court -4- granted a directed verdict in favor of Tremco at the close of the plaintiffs' case. This appeal followed. In their sole assignment of error, the Hugneys argue the trial court erred in granting a directed verdict because there was substantial, competent evidence in support of an employment intentional tort claim. Civ.R. 50(A)(4) provides: When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue. A directed verdict does not present factual issues, but questions of law; however, in deciding such a motion, it is necessary to review and consider the evidence. O'Day v. Webb (1972), 29 Ohio St.2d 215. In order to establish "intent" for the purpose of an intentional tort it must be demonstrated that (1) the employer had knowledge of the existence of a dangerous process, procedure, instrumentality or condition within its business operation, (2) the employer had knowledge that if the employee is subjected by his employment to such a danger, then harm to the employee will be a substantial certainty and not just a high risk, and (3) under such circumstances and with such knowledge, the employer 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, 116, -5- citing Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed. 1984). 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. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 155 at paragraph two of the syllabus. See, also, Van Fossen at 117. The issue in this case is the degree of knowledge which Tremco, Inc. had about the dangerous nature of moving the mixer. "The focus of an intentional tort action *** is on the knowledge of the employer regarding the risk of injury. The plaintiff has the burden of proving by a preponderance of the evidence 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, quoting Van Fossen at 117 (held a directed verdict and judgment notwithstanding the verdict should have been granted). In this case, Mike Timko admits he had concerns about the ability of the maintenance department to move the mixer. George -6- Ball also admits stating in deposition that he did not believe his workers could do the job safely. Thus, when the evidence is construed in the Hugneys' favor, there is substantial evidence Tremco knew there was a dangerous procedure to be performed. However, there is absolutely no evidence Tremco knew the mixer if moved would fall on Hugney's leg. Other mixers of greater size had been moved by Tremco employees without incident. May 18, 1993 was the first time Tremco employees attempted to move a mixer by turning it on its side. Furthermore, the decision to try to turn the mixer on its side was made by consensus between Ball, Elswick, and Hugney. Thus, when Ball ordered Hugney to take a link out of the chain, he was not acting with "actual knowledge of the exact dangers" Hugney was facing. There is no evidence from which an inference could be drawn that Ball or Timko had actual knowledge or knew with "substantial certainty" that the mixer would fall and crush Hugney's leg. During oral argument, counsel for the Hugneys argued this court should seek guidance from Cook v. Cleveland Elec. Illum. Co. (1995), 102 Ohio App.3d 417. In Cook, this court held "while the occurrence and proof of previous accidents certainly assists in showing knowledge of a substantial certainty of harm on the part of the employer, it is not the sole determinative factor. Rather, the focus of the substantial certainty test set forth in Fyffe is not only how often the accident will occur but also the employer's knowledge of the certainty of death or injury to an employee when an accident does occur." Id. at 429. This court went on to point -7- out that the transfer system was inherently dangerous and the company was aware of this danger. Thus, knowledge of an inherently dangerous system is sufficient to establish the element of sub- stantial certainty of injury. Here, there is no such comparable quantum of evidence, and besides, the mixer was not inherently dangerous. Accordingly, the Hugneys' assigned error is overruled. Judgment affirmed. -8- 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 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. Exceptions. JAMES D. SWEENEY, P.J., CONCURS; KARPINSKI, J., CONCURS WITH ATTACHING CONCURRING OPINION. PATRICIA ANN BLACKMON 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 of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1)." COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70603 : EDWARD HUGNEY, ET AL. : : : Plaintiffs-Appellants : : CONCURRING v. : : OPINION TREMCO, INC. : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 KARPINSKI, J., CONCURRING: I concur in the majority opinion, but write separately to explain the terms "dangerous" and "inherently dangerous," which the majority uses. The classification of risks in intentional tort cases under these terms depends on the facts and circumstances of each case. The case at bar presented a risky situation, that is, moving a heavy object. However, nothing in this move indicated a worker was substantially certain to be injured. While it was possible the object might fall and, therefore, might seriously injure someone, there was no certainty the object would fall and, therefore, no - 2 - certainty of injury. Thus, whereas moving a heavy object is a "dangerous" process sufficient to require caution, the process in the case at bar was not "inherently dangerous" sufficient to infer .