COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71182 JON SUECH : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : WORLD STAMPING AND : OPINION MANUFACTURING CO. : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-277748. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: David A. Forrest, Esq. William J. Shramek, Esq. 1650 Midland Building 101 Prospect Avenue W. Cleveland, OH 44115 For Defendant-Appellee: Daniel J. Kolick, Esq. John P. Desimone, Esq. Kolick & Kondzer 24500 Center Ridge Road Suite 175 Westlake, OH 44145 -2- DAVID T. MATIA, P.J.: Jon Suech, plaintiff-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas, Case No. CV-277748, which granted the motion for summary judgment of World Stamping and Manufacturing Company, defendant-appellee. Plaintiff-appellant assigns one error for this court's review. Plaintiff-appellant's appeal is not well taken. I. THE FACTS World Stamping and Manufacturing Company, defendant-appellee, operates a small machine shop located at 11500 Madison Avenue, Cleveland, Ohio. The company manufactures various metal parts pursuant to specifications contained in individual customer orders using a variety of equipment including power drills and punch presses of different manufacture. Jon Suech, plaintiff-appellant, began working for defendant- appellee in May, 1993 as a shop-floor employee. Initially, his employment duties included the operation of the drill presses. Soon after, plaintiff-appellant began operating the punch presses as well. On September 29, 1993, plaintiff-appellant reported for work. He spent the morning operating a drill press. After lunch, plaintiff-appellant continued to operate the drill press for approximately one and one-half hours. At this point, John Benko, plaintiff-appellant's supervisor, instructed plaintiff-appellant to begin a blanking operation on Press 103, a Bliss mechanical punch press. The blanking operation required plaintiff-appellant to feed -3- one long strip of light gauge aluminum through the press using both hands to hold the aluminum while operating the press with the foot pedal. The press would then stamp out the required part leaving a hole in the aluminum strip. When half of the aluminum strip had been punched, the operator would turn the strip around and punch holes out of the other half of the strip. Since the operator was required to hold the aluminum product with both hands, the palm buttons, an alternative method for operating the press, could not be used during this procedure. Prior to September 29, 1993, plaintiff-appellant had not operated Press 103, although he had operated smaller punch presses that worked upon the same principle. Since plaintiff-appellant had no prior experience operating Press 103, John Benko instructed plaintiff-appellant as to the procedure for operating the press and manufacturing the specific part. Plaintiff-appellant had been operating Press 103 for approximately one hour when the aluminum material plaintiff- appellant had been feeding into the press became jammed behind the press die. Plaintiff-appellant maintained that he then took his foot off the foot pedal and stepped back so that he could reach his hand into the die area in order to free the jammed aluminum material. Plaintiff-appellant maintained further that his foot slipped on some grease and oil near the press and somehow landed upon the foot pedal causing the punch press to cycle while plaintiff-appellant's hand was in the die area. As a result, -4- plaintiff-appellant suffered a permanent severe crushing injury to his right hand. On October 5, 1994, plaintiff-appellant filed the underlying action in the Cuyahoga County Court of Common Pleas alleging on intentional tort against World Stamping and Manufacturing Company, defendant-appellee. In addition, plaintiff-appellant brought a products liability cause of action against the Allen Bradley Company, the manufacturer of the foot pedal used on Press 103 at the time of plaintiff-appellant's injuries. Plaintiff-appellant eventually settled all claims against the Allen Bradley Company. Lastly, plaintiff-appellant brought an action for negligent sale against U.S. Stamping and Manufacturing Company. Plaintiff- appellant maintained that U.S. Stamping and Manufacturing Company negligently sold its business assets, including Press 103, to defendant-appellee. The trial court eventually granted summary judgment in favor of U.S. Stamping and Manufacturing Company and it is not a party to the instant appeal. On June 16, 1995, World Stamping and Manufacturing Company, defendant-appellee, filed its motion for summary judgment on plaintiff-appellant's intentional tort cause of action. Defendant- appellee maintained that, despite repeated warnings to keep his hands out of the press point of operation, plaintiff-appellant unfortunately took it upon himself to reach into the die area of Press 103 resulting in severe injury. Defendant-appellee maintained further that the press itself had no history of inadvertent repeating (i.e., activating without being started by -5- the operator) nor was it ever modified in any way while in the possession of defendant-appellee. In addition, defendant-appellee argued that the foot pedal which operated Press 103 was adequately guarded to protect against inadvertent operation of the press. This foot pedal guard was described as a box covering the top, both sides and the back of the foot pedal. Defendant-appellee argued that, viewing all evidence presented in a light most favorable to plaintiff-appellant, it was clear that plaintiff-appellant failed to demonstrate the existence of any genuine issues of material fact regarding the necessary elements of an intentional tort claim and defendant-appellee was entitled to judgment as a matter of law. On October 2, 1995, plaintiff-appellant filed his brief in opposition to defendant-appellee's motion for summary judgment. In his brief in opposition, plaintiff-appellant maintained that summary judgment in defendant-appellee's favor would be inappropriate since defendant-appellee required plaintiff- appellant to operate Press 103 without any point of operation guards whatsoever, contrary to numerous warnings contained in the Bliss parts manual as well as state and federal regulations. Plaintiff-appellant maintained further that he did not receive sufficient training in the operation of Press 103 nor did defendant-appellee adequately supervise plaintiff-appellant while he was using the press. On October 23, 1995, the trial court granted defendant- appellee's motion for summary judgment without opinion. On August -6- 19, 1996, the remaining parties in the underlying case entered into a settlement agreement thereby disposing of all remaining claims. On August 28, 1996, plaintiff-appellant filed a timely notice of appeal from the October 23, 1995 judgment of the trial court which granted defendant-appellee's motion for summary judgment on plaintiff-appellant's intentional tort claim. II. ASSIGNMENT OF ERROR Jon Suech's, plaintiff-appellant's, sole assignment of error states: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT WORLD STAMPING AND MANUFACTURING CO. WHEN REASONABLE MINDS COULD CONCLUDE DEFENDANT COMMITTED AN INTENTIONAL TORT AGAINST PLAINTIFF PURSUANT TO FYFFE V. JENO'S, INC. (1991), 59 OHIO ST.3d 115. A. THE ISSUE RAISED: SUMMARY JUDGMENT ON AN INTENTIONAL TORT CLAIM. Plaintiff-appellant argues, through his sole assignment of error, that the trial court improperly granted summary judgment in favor of World Stamping and Manufacturing Company, defendant- appellee, on plaintiff-appellant's intentional tort cause of action. Specifically, plaintiff-appellant maintains that, through his employment at World Stamping and Manufacturing, he was exposed to a dangerous instrumentality, namely Press 103, which had an admittedly unguarded point of operation. It is plaintiff-appellant's position that, under such circumstances, reasonable minds could conclude that defendant-appellee knew harm to plaintiff-appellant would be a substantial certainty, yet -7- still required plaintiff-appellant to operate the dangerous punch press resulting in plaintiff-appellant's injury. Plaintiff-appellant's sole assignment of error is not 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 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. -8- 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), 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 -9- 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 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: -10- 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 DID NOT ERR IN GRANTING THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT-APPELLEE. In the case sub judice, a review of the record demonstrates that plaintiff-appellant failed to establish the existence of a genuine issue of material fact relating to the second and third required elements of an intentional tort claim and the trial court properly granted the motion for summary judgment in favor of defendant-appellee. Plaintiff-appellant maintains that there were a number of significant factual considerations present which precluded summary judgment. Among those considerations are the following: defendant-appellee disregarded manufacturer's warnings by operating Press 103 without using point of operation guards which were readily available such as pull back hand guards, hairpin guards and Lexan guards; Press 103 was improperly equipped with an unsafe foot pedal guard in violation of OSHA regulations; defendant-appellee failed to properly train and supervise plaintiff-appellant while he was working on Press 103; defendant-appellee had at least one other employee injury as a -11- result of Press 103; and Press 103 had been modified at some point by defendant-appellee. Plaintiff-appellant supports these assertions largely through the affidavit of his expert witness, Mr. Richard Harkness, P.E., a mechanical engineer who inspected Press 103 after plaintiff- appellant's injury. Mr. Harkness' affidavit focuses upon the lack of point of operation safety guards, the alleged improper foot pedal guard and defendant-appellee's supposed inadequate training and supervision of plaintiff-appellant. In order for plaintiff-appellant's intentional tort cause of action to survive a motion for summary judgment, it must be demonstrated that a genuine issue of material fact exists as to all three prongs of the Fyffe test. Van Fossen, supra. The first prong of the Fyffe test requires plaintiff-appellant to present facts to demonstrate that defendant-appellee had knowledge of the existence of a dangerous condition, process, procedure or instrumentality within its business operation. A review of the evidence set forth in the trial court reveals the following: defendant-appellee did not utilize any additional safety guards (i.e., pull back guards, Lexon guards or hairpin guards) on Press 103 and the foot pedal guard on Press 103 did not have a front flap as required by OSHA. While it is possible that the safety guards in question may have been impractical and/or ineffective on this particular punch press manufacturing the specific aluminum part in question, the fact that defendant- appellee was aware of their existence and purpose demonstrates -12- the existence of a genuine issue of material fact regarding defendant-appellee's knowledge of a dangerous condition, process, procedure or instrumentality within its business operation. Clearly, plaintiff-appellant satisfied the first prong of the intentional tort test. See Burns v. Presrite Corp. (1994), 97 Ohio App.3d 377, 381. The second element of the Fyffe test requires plaintiff- appellant to set forth facts showing that defendant-appellee had knowledge that if plaintiff-appellant was subjected by his employment to the dangerous condition, then harm to plaintiff- appellant would be a substantial certainty. Plaintiff-appellant maintains that not only had other employees warned defendant- appellee about the dangers of an unguarded point of operation on Press 103 but at least one other employee of defendant-appellee had sustained injuries while operating a punch press. Both allegations are unsupported by the record. Plaintiff-appellant failed to produce any evidence from other employees of defendant- appellee regarding any safety measures, or lack thereof, taken at defendant-appellee's business. Similarly, while it is true that plaintiff-appellant's expert witness, Richard Harkness, stated in his affidavit that at least one other employee injury had occurred on a power press at defendant-appellee's business, this alleged injury was never documented in any way. Plaintiff- appellant did not identify the alleged injured employee, the date of the injury or the occupational duty the employee was allegedly performing at the time. Without some proof of these allegations, -13- it cannot now be said that defendant-appellee knew that harm to plaintiff-appellant was substantially certain to occur. As the Supreme Court reiterated in Fyffe, "the mere knowledge and appreciation of a risk - something short of substantial certainty - is not intent." Fyffe, 59 Ohio St.3d at 118. The third and final element of the intentional tort test requires that the employer, with knowledge of the dangerous condition within its business operation and with knowledge that, if subjected to the dangerous condition, harm to the employee will be a substantial certainty, still requires the employee to perform the dangerous task. A review of plaintiff-appellant's deposition testimony demonstrates that, at no time did defendant- appellee require plaintiff-appellant to perform a dangerous task: Q. Is it your testimony, Mr. Suech, he said that if something gets stuck in there, if it gets stuck and it's simple, reach in and get it? A. No, he never said that. I mean, you got to see the die in order to see what I'm talking about. You know, it's like something can get stuck but still be hanging out and grab it and get it off the die. Q. Did he ever tell you under any circumstances it was okay to reach into the die, he being Jack Benko, Jr.? A. No, he never, no. Q. Did anybody at World at any point tell you under minor circumstances or certain circumstances it's okay to reach into a die? -14- A. No, no one ever told me it was okay to reach into a die. Q. Any reason you did not get something like a pole, piece of metal or anything else to knock it out as opposed to reaching in? A. Never given one. Q. Did you think about doing that? A. No. Q. You did understand that if that press came down you could damage whatever it is in the press? A. Oh, yeah. (Tr. 96-97.) In addition, during oral argument, plaintiff-appellant's counsel was asked by a panel member whether plaintiff-appellant had been specifically instructed to keep his hands out of the press. Plaintiff-appellant's counsel admitted in open court that defendant-appellee had instructed plaintiff-appellant to that effect and, notwithstanding these instructions, plaintiff- appellant still did so and sustained serious injuries. Accordingly, since plaintiff-appellant failed to demonstrate the existence of any genuine issues of material fact relating to the second and third prongs of the Fyffe test for an intentional tort, this court finds that the trial court properly granted summary judgment in favor of World Stamping and Manufacturing, defendant-appellee. Plaintiff-appellant's sole assignment of error is not well taken. -15- Judgment of the trial court is affirmed. -16- It is ordered that appellee recover of appellant 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. KARPINSKI, J. and PRYATEL, J., CONCUR. (Judge August Pryatel, Retired of the Eighth Appellate District, sitting by assignment.) 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 .