COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72036 JAMES R. EDSALL : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION HOSE MASTER, INC., et al. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 18, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-297633 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: TERESA G. STANFORD, ESQ. ANDREW W. HOFFMAN, ESQ. 14650 Detroit Avenue RONALD A. APELT, ESQ. Suite 450 Three Commerce Park Square Lakewood, Ohio 44107-9946 23200 Chagrin Blvd., Ste. 720 Cleveland, Ohio 44122 -2- PATRICIA ANN BLACKMON, J.: James Edsall, plaintiff-appellant, appeals a summary judgment decision in favor of Hose Master, Inc., defendant-appellee in his intentional tort action. Edsall assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SINCE GENUINE ISSUES OF MATERIAL FACT EXISTED AS TO WHETHER PLAINTIFF, JAMES R. EDSALL, PROVIDED SUFFICIENT EVIDENCE TO ESTABLISH EACH ESSENTIAL ELEMENT TO AN INTENTIONAL TORT CLAIM AGAINST DEFENDANT. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Edsall filed an intentional tort action against his employer, Hose Master, Inc. seeking compensation for the partial amputation of his thumb by a stamping machine. Edsall had been employed at Hose Master for less than a week when he was injured. The stamping machine was used to put markings on metal rings used for hoses. To stamp the rings, a worker placed the rings into a holding area, aligning them. Once the ring was aligned, a joystick-type lever was moved to activate the stamping process. The ring was then removed by hand and the next ring was inserted. On the day of his injury, Edsall operated the stamp machine along with one of his co-workers, Gerald Gasiewski. Edsall operated the joystick lever while Gerald Gasiewski placed and removed the rings from the machine. The two men worked the machine together for about five minutes without incident. Later in the -3- shift, when Edsall completed all of his other work duties, he approached Gasiewski and offered to help him stamp the rings. The two decided that Edsall would place and remove the rings while Gasiewski operated the joystick. The two had been operating the machine for less than one minute when Edsall's gloved hand became caught in the machine. Edsall immediately pulled his hand free but Gasiewski had already initiated the stamping sequence. As a result, Edsall's thumb was crushed and amputated above the first knuckle. Edsall was off work for approximately one week. When he returned, a two handed control had been installed on the machine requiring two hands to initiate the stamping process. A fellow employee told Edsall that, before he came to work at Hose Master, a plastic guard that would have prevented his injury had been removed from the stamping machine. In its motion for summary judgment, Hose Master alleged the plastic guard was nothing more than a dust cover. Hose Master also alleged that the stamping machine was designed to be used by one person at a time and that Edsall's injuries were caused by his decision to improperly use the machine along with Gasiewski. The trial court granted summary judgment in favor of Hose Master. This appeal followed. In his assignment of error, Edsall argues genuine issues of material fact remained as to the elements of his intentional tort claim. We disagree. A trial court may properly grant summary judgment when, after construing the evidence most strongly in favor -4- of the nonmovant, it determines that there is no genuine issue of material fact, that the movant is entitled to judgment as a matter of law, and that reasonable minds could reach only one conclusion and that the conclusion is adverse to the movant. Civ.R. 56(C). To establish an intentional tort claim against his employer, an employee must establish the following elements: (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. Fyffe v. Jeno, Inc. (1991), 59 Ohio St.3d 115, 118. The proof required must go beyond mere negligence or recklessness. When 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. Id. Mere knowledge and appreciation of a risk is not intent. Id. Edsall argues Hose Master had knowledge that the machine was dangerous. In support of its argument, it points to the deposition of Sam Foti who acknowledged that he redesigned the press machine and, in the process, created a pinch point. Foti also acknowledged that a plastic dust cover had been removed from the machine prior -5- to Edsall's accident and that the cover would have kept Edsall's hand out of the press area. However, Foti testified that the operation of the machine was a one-man operation and that, if only one person had been operating the machine at the time of the accident, he would have been unable to initiate the stamping process while his hands were in the press area. There is a lever, a joy stick, if you will. If you move it to the right, the slide go (sic) to the right which time it gets loaded. You move it to the left, it does the stamping, it stops. You remove it. You put in another unit and you move it to the right. It keeps on going back and forth. In other words what I'm saying, the machine was designed to be used with one hand. With one hand you use the joy stick in any select direction. With the other hand you load the part. (Foti Depo. at 28.) Foti also denied there was a plastic guard on the machine. Q: Now, there is some evidence or discussion that there had been a plastic shield on the front of this machine at some point. A: No. You said there has been some evidence and discussion that there has been some plastic shield. There has been a plastic dust cover, is that what you're talking about? Q: I don't know, that's what I'm asking you. A: The only plastic ever used on that machine was a dust cover, which typically of any plastic it got broken in a hurry so we just made a lid. Now we have metal lid that we just put over the entire machine. ***If you allow this machine by the fact that it's only used a very, very small percentage of the time there is a lot of dust that can collect if you allow dust to collect in the area where the slide should slide, I'd be ruining the machine down at no time at all. -6- (Foti Depo. at 42-43.) [F]or you to install the die and do everything else you have to remove the guard. So the plastic guard the way it is addressed and meant at this point it actually guards the machine against dust. This has nothing to do with the function of the machine. (Foti Depo. At 56.) Additionally, although he and Gasiewski may have used the machine in the vicinity of Hromyko, Hromyko specifically denied ever seeing the two men working on the machine together. Q: Were you aware that Jerry Gasiewski and Jim Edsall were both working on the stamping machine? A: No. (Hromyko Depo. at 31.] Absent any evidence that Hose Master knew Edsall and Gasiewski would work on the machine together, Edsall has failed to demonstrate Hose Master knew his injury was substantially certain to occur. With respect to the second prong of the Fyffe test, Edsall also argues Hose Master knew there was a substantial certainty that he would be injured using the stamp machine. He points out that Foti's redesign of the machine created the very pinch point that caused Edsall's injury. He also argues the removal of the dust cover that would have kept Edsall's hand out of the press area indicated Hose Master's knowledge that Edsall's injury was a substantial certainty. However, in his deposition, Foti stated that the accident happened because two operators were running the machine. (Foti -7- Depo. at 47.) Though Edsall stated in his deposition that he was instructed how to operate the machine, he does not say that he was instructed that the machine was to be used by two people. He also admitted that the day of the accident was the first time he ran the machine with another person. [Edsall Depo. at 35.] On all prior occasions, he used the machine by himself. Edsall cites Walton v. Springwood Products, Inc. (1995), 105 Ohio App.3d 400, and Holtz v. Scutt Pattern Works Co. (1993), 89 Ohio App.3d 663, in support of his argument that Hose Master knew that injury was substantially certain to occur. In both cases, summary judgment in favor of the employer was reversed on appeal. In Holtz, the plaintiff suffered amputation of two of his fingers by the saw of a wood-stripping machine. The facts revealed that Holtz had narrowly escaped injury on a prior occasion when the saw's blades broke. Holtz spoke to Schutt's owner about the need for safety guards and was told not to worry about it. Holtz was later injured on the machine. Upon his return to work, Schutt's owner told him the sign of a good pattern maker is how many fingers are missing and that most of the older guys have fingers missing. Id. at 665. In Walton, the plaintiff also suffered amputation of several fingers and severe injury to his thumb while operating a wood saw. In Walton, the evidence revealed that the Oliver cut-off saw was altered by Springwood Products to incorporate many of the design features of a another saw purchased by the company. However, while the second saw included a safety guard around the saw blade, -8- Springwood failure to duplicate this feature on the Oliver saw. The evidence also showed that Springwood was aware of the dangers posed by the Oliver saw and that a warning sticker on the saw depicted a bloody hand with severed fingers. In both Walton and Holtz, there is clear evidence that the employers were aware of the dangers associated with the machines the injured employees were using. However, in each case, the employer's conscious decision not to include safety guards on the machine was held to raise a genuine issue of fact about whether the employer was substantially certain that employee injury would result. Holtz at 668; Walton at 405. Both Holtzand Waltonare distinguishable from the case at bar as they involved employers who deliberately disregarded a known risk of injury to their employees. In this case, Foti stated that operation of the machine was a one-man job and Edsall admits that he used the machine several times by himself without incident. Even if we construe the evidence most strongly in favor of Edsall as the nonmovant and consider the dust cover as a guard, the fact remains that, even without the guard , the injury to Edsall could not have occurred if he had been operating the machine by himself. There is no evidence that Hose Master knew or should have known that Edsall would use the machine with another person. There is no evidence that he was trained to do so or that anyone at Hose Master ever saw him doing so. Under the circumstances, Edsall has not met his burden of going forward with evidence that Hose Master knew his injury was substantially certain to occur. -9- Edsall argues Hose Master required Edsall to operate the press machine. He argues he was required to perform whatever tasks were present on the Prep Table on a given work day. He described the operation of the press machine as one of his job responsibilities. He also claims no one instructed him that the machine was not to be operated by two people and that, on the day of his accident, he and Gasiewski used the machine together in full view of Hromyko, his supervisor. We conclude the evidence belies the arguments raised by Edsall. He admits that he was not ordered to work on the machine with Gasiewski. Instead, he volunteered to help Gasiewski because all the other work on the Prep Table had been completed. Q: Did you talk to anybody else at Hose Master, Greg Hromyko or anyone, saying, that, we're going to run this machine together to make it go faster? A: No. Q: Did anybody in management know that the two of you were running the machine? A: I don't believe so. (Edsall Depo. At 37.) Q: Did [Greg Hromyko] tell you and Gerald to go operate the machine? A: No, he did not. (Edsall Depo. At 39.) In light of this testimony, we conclude Edsall failed to establish a genuine issue of fact as to whether Hose Master forced him to operate the machine. -10- Having concluded that Edsall failed to establish a genuine issue of fact as to the elements of his intentional tort claim, we affirm the judgment of the trial court. Judgment affirmed. 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. Exceptions. PORTER, J., and NAHRA, J., CONCUR. PATRICIA ANN BLACKMON 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 .