COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74314 LARRY WATSON : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : CLEANERS HANGER COMPANY : OPINION : Defendant-Appellee : : PER CURIAM Date of Announcement of Decision: OCTOBER 22, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. 334138 Judgment: AFFIRMED Date of Journalization: Appearances: For Plaintiff-Appellant: PAUL MANCINO, JR., ESQ. 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 For Defendant-Appellee: WILLIAM KOVACH, ESQ. 6000 Lombardo Center Suite 520 Seven Hills, Ohio 44131-2579 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant Larry Watson appeals from the summary judgment entered in favor of his employer defendant-appellee Cleaners Hanger Company on plaintiff's claim for intentional tort resulting from an accident while he was operating machinery at work. Plaintiff contends that the trial court erred in granting summary judgment for defendant by applying the procedural provisions of R.C. 2745.01 instead of Civ.R. 56. Plaintiff contends R.C. 2745.01 is unconstitutional and disputed issues of fact precluded summary judgment. We find no reversible error and affirm. Plaintiff Watson alleged that he had been subjected to an intentional tort by his employer, Cleaners Hanger Company. On May 8, 1996, a portion of his right index finger was severed while he was operating a wire drawing machine. Plaintiff alleged that defendant had knowledge that hazardous machinery was present on its premises; that plaintiff was subjected to a dangerous process, procedure, instrumentality or condition which defendant knew would cause harm to plaintiff with substantial certainty; and that he was required to operate the machinery without safety equipment. As a result of his injuries, which were permanent, he was required to seek medical care and attention and lost time from his employment. Defendant filed a motion for summary judgment supported by attaching a copy of plaintiff's complaint, defendant's answers to -3- interrogatories, and a copy of R.C. 2745.01. Defendant's answers to interrogatories established that the machine in question has been in operation for 25 years. As a result of the accident, no civil, criminal sanctions and/or penalties were imposed and no changes or modifications were made. The wire drawing machine on which defendant was injured was serviced by an independent contractor on April 2, 1996, approximately one month before the accident and was considered to be in operating condition. There is no evidence of a similar incident over the 25 year history of the machine and no evidence that any guards or safety devices were removed from the machine. Plaintiff filed his brief in opposition to the motion for summary judgment with the attached affidavit: LARRY WATSON, being first duly sworn, deposes and states the following: 1. That he has been employed by Cleaners Hanger Company; 2. That Cleaners Hanger Company makes wire hangers for clothing, etc; 3. That the machine he worked at was bench number 5 which is a draw bench; 4. That a draw bench is a wire drawing machine; 5. That there were no guards on the wire drawing machine to protect his hands and fingers while operating the machine; 6. That defendant knew of the existence of this dangerous condition and defendant had to know that an injury was substantially certain to occur because of the lack of safety devices; 7. That his index finger was cut by this machine because there were no guards to protect it; -4- 8. That there were no proper tools to feed the wire into the machine and he was required to use a piece of cardboard to feed the wire into the spool of this machine which required his hand to be placed into the danger zone without any safety guards; 9. Affiant states that defendant knew of this dangerous condition and process and had to know that an accident was substantially certain to occur; 10. That he lost part of his finger because no proper tools or safety devices were provided by defendant; 11. That the emergency button continuously malfunctioned and was not working at the time of affiant's accident; 12. That although repairs may have been made on this draw bench to make it operational it remained an unsafe machine. On March 13, 1998, the trial court granted defendant's motion for summary judgment without opinion or explanation. Plaintiff filed a timely appeal from the trial court's order. We will address plaintiff's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT BASED UPON THE PROCEDURAL PROVISIONS OF S2745.01 OF THE OHIO REVISED CODE WHICH CONFLICT WITH RULE 56 OF THE RULES OF CIVIL PROCEDURE. II. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO DEFENDANT BASED UPON S2745.01 OF THE OHIO REVISED CODE WHICH IS UNCONSTITUTIONAL. Under Civ.R. 56, summary judgment is proper when: (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 -5- strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. However, the nonmoving party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media, Ltd. (1991), 59 Ohio St.3d 108, 111; Celotex, supra, at 322-323. In accordance with Civ.R. 56(E), "a nonmovant may not rest upon the mere allegations or denials of his pleadings, but must set forth specific facts showing there is a genuine issue for trial." Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or -6- a material element of the nonmoving party's claim." Dresher at 296. This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ.R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. Plaintiff contends that the trial court erred in applying the newly enacted (eff. 11-1-95) provisions of R.C. 2745.01 respecting the employer's liability for intentional tort rather than the traditional standards applicable to summary judgment as aforesaid. Plaintiff also points out that R.C. 2745.01 has been found unconstitutional by an Ohio Court of Appeals in Johnson v. B.P. Chemicals (Nov. 8, 1997), Allen App. No. 1-97-32, unreported. We note that the Ohio Supreme Court has granted review of the Johnson case (1998), 81 Ohio St.3d 1500, as well as Mullins v. Rio Algom, Inc. (1998), 81 Ohio St.3d 1430, which likewise presents the constitutionality issues of R.C. 2745.01. We have no way of knowing whether the trial court applied R.C. 2745.01 or Civ.R. 56 standards because the trial court issued no -7- opinion and offered no explanation for its ruling. Even if the trial court applied R.C. 2745.01, an appellate court may decide a legal issue on grounds different from those determined by the trial court. State v. Peagler (1996), 76 Ohio St.3d 496, paragraph one of syllabus. Thus, a reviewing court is not authorized to reverse a correct judgment merely because erroneous reasons were assigned as the basis thereof. State ex rel. Fattlar v. Boyle (1998), 83 Ohio St.3d 123, 125-26. Moreover, it is not necessary for us to reach the issue of constitutionality on this appeal. We adhere to the general principle that it is not necessary to confront a constitutional issue if the case can be properly decided on other grounds. It is well settled that appellate courts will not decide constitutional issues unless it is absolutely necessary. In re Miller (1992), 63 Ohio St.3d 99, 110; In re Boggs (1990), 50 Ohio St.3d 217, 221; Greenhills Home Owners Corp. v. Greenhills (1966), 5 Ohio St.2d 207. In Greenhills, supra, the Supreme Court stated in paragraph one of the syllabus: A court will not exercise its power to determine the constitutionality of a legislative enactment where other issues are apparent in the record, the determination of which will dispose of the case on its merits. Since we may address the appeal de novo on traditional summary judgment standards, it is not necessary for us to reach the constitutional issues presented by plaintiff's Assignments of Error I and II which are rendered moot in view of our disposition of Assignment of Error III below. App.R. 12(A)(1)(c). -8- -9- III. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT AS GENUINE ISSUES OF MATERIAL FACTS WERE PRESENT WHICH PRECLUDED THE AWARD OF SUMMARY JUDGMENT. The issue inherent in this assignment of error is whether the plaintiff's affidavit is sufficient to overcome the defendant's evidentiary materials. In order to overcome an employer- defendant's motion for summary judgment on a common law intentional tort claim, the plaintiff/employee must set forth specific facts showing there is a genuine issue as to whether the employer committed an intentional tort. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraphs one and two of syllabus: 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. *** 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 -10- knows that injuries to employees are certain to 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. *** Applying the Fyffe test to the facts in the present case, we conclude that the trial court correctly granted summary judgment for defendant. The first prong of the Fyffe test requires plaintiff to present facts which demonstrate that defendant had knowledge of the existence of the dangerous condition. There is no evidence in this record, even viewed in a light most favorable to the plaintiff, that defendant was aware of a dangerous process or condition of the machine. The evidence reflects that no guards were removed from the machine prior to plaintiff's injuries and no changes or modifications were made after the injuries. No civil, criminal sanctions and/or penalties were imposed because of the incident. Furthermore, the machine was serviced by an independent contractor on April 2, 1996, approximately one month before the accident and was considered in operating condition. The evidence also shows that the machine had been in operation for 25 years without a similar incident. Although an employer's conduct can be found intentional, even though there were no prior accidents resulting from the conduct, Cook v. Cleveland Electric Illuminating Co. (1995), 102 Ohio App.3d 417, the lack of prior accidents does tend to show the accident was unexpected and not substantially certain to occur. Fyffe, supra; Sanek v. Duracote -11- Corp.(1989), 43 Ohio St.3d 169. Furthermore, there is no evidence that plaintiff, who had worked on the machine over fifteen months, ever complained or warned his employer of a dangerous condition. Plaintiff's affidavit states his opinion as to what guards and tools should be installed and used on the No. 5 wire draw bench. These opinions were the only evidence plaintiff presented in support of his intentional tort claim. However, there is no foundation or expert basis for his opinions as to safety or what the employer would expect to happen. Such testimony is conclusory and speculative, being outside of his own perceptions, and will not be considered. There is no factual basis in plaintiff's affidavit to establish that any guards were removed; that guards were feasible or would have protected against injury; or that any similar incidents occurred in the last 25 years. Even an expert report may not be sufficient to overcome summary judgment in such a case. See Burgos v. Areway (1996), 114 Ohio App.3d 380, 384: An expert report stating that the accident was substantially certain to occur may not be sufficient to prevent summary judgment in favor of the employer on the employee's intentional tort claim. See Sanek, supra; Depriest v. Paramount Metals Co. (Nov. 24, 1993), Cuyahoga App. No. 64145, unreported, 1993 WL 489750. In Sanek and Depriest, it was held that based on the factual circumstances, the accidents were not substantially certain to occur, despite the expert's report. Similarly, in the case at hand, reasonable minds cannot conclude from the facts presented that appellee knew that injury was substantially certain to occur. -12- Plaintiff also claims various administrative code sections create disputed issues of fact as to whether guards were required on the machine. However, plaintiff has failed to present any expert testimony to indicate that these code provisions are applicable to the instant case or, if they are, had been violated by defendant's conduct. In Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 302, 304, the Supreme Court held that a violation of OSHA does not constitute negligence per se in an employer intentional tort case. In any event, these various code sections cannot, standing alone, establish whether intentional misconduct was substantially certain to cause harm to plaintiff. It has been held that where the employer makes safety devices available, but does not enforce the use of such devices, the employer's conduct is negligent or reckless, but not intentional. Burgos, supra, at 384, citing Foust v. Magnum Restaurants, Inc. (1994), 97 Ohio App.3d 451. It has also been held that an employer's actions were negligent, not intentional misconduct, when an employee was injured by a punch press machine with a history of dangerously repeating.Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St.3d 124. In Pariseau, the plaintiff sustained the amputation of three fingers while operating a punch press machine. The punch press at issue in Pariseau had a history of repeating (the ram would automatically repeat its thrust without operator action) and in fact was repeating on the night of the accident. There was also disputed evidence as to whether or not the pull back guards were properly adjusted. Based on this evidence, the Supreme -13- Court of Ohio held that the actions of the defendant employer were negligent, and not intentional misconduct. Pariseau, supra, at 128, 129. Considering the foregoing discussion, there is no competent evidence to show that defendant had knowledge of a dangerous condition of the machine or appreciation that injury to plaintiff was substantially certain to follow if he continued to work on the machine. Plaintiff's Assignment of Error III is overruled. Judgment affirmed. -14- 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 Court of Common Pleas 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. JAMES M. PORTER, PRESIDING JUDGE LEO M. SPELLACY, JUDGE KENNETH A. ROCCO, 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 .