in the court of appeals of ohio -...
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Court of Appeals Case No. CA 10 095399
IN THE COURT OF APPEALS OF OHIOEighth Appellate Judicial District, Cuyahoga County
_____________________________
BRUCE R. HOUDEKPlaintiff-Appellant
v.THYSSENKRUPP MATERIALS NA, INC., et al.
Defendants-Appellees
_________________________________
On Appeal from the Cuyahoga County Court of Common PleasCase No. CV-09-695034
APPELLANT’S BRIEF
David R. Grant (0065436) Gregory G. Guice, EsquireJeffrey H. Friedman (0018563) Reminger Co., LPAStephen S. Vanek (0059150) 1400 Midland BuildingFriedman, Domiano & Smith Co., L.P.A. 101 Prospect Avenue, West55 Public Square, Suite 1055 Cleveland, Ohio 44115Cleveland, Ohio 44113t: 216.621.0070 Counsel for Defendant-Appelleef: 216.621.4008 Thyssenkrupp Materials NA, [email protected] [email protected] Benjamin W. Crider, Esquire
Lee M. Smith & Assoc., Co., L.P.A.Joseph A. Condeni (0030275) 929 Harrison AvenueStacey Walley (0082723) Suite 300Smith & Condeni, L.L.P. Columbus, Ohio 43215600 East Granger Road, Second FloorBrooklyn Heights, Ohio 44131 Counsel for Ohio Bureaut: 216.771.1670 of Workers Compensationf: [email protected]
Counsel for Plaintiff-Appellant
Table of Contents
Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Assignments of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Law & Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Appendix (Unreported Opinions) Appendix Page
Bickel v. Moyer,(September 29, 1994), Third Dist. App. No. 50-94-14, unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Howard v. Jet Corr Classic, Inc. (Jan. 27, 2006), Clark Cty. App. 05CA0068, 2006 Ohio 415, 2006 WL 235051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
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Table of Authorities
Cases
Bee v. Toth Industries, Inc. (2002), 150 Ohio App.3d 184. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Bickel v. Moyer,(September 29, 1994), Third Dist. App. No. 50-94-14, unreported. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Emminger v. Motions Savers, Inc. (1990), 60 Ohio App.3d 14.. . . . . . . . . . . . . . . . . . . . . . . . . . 11
Felden v. Ashland Chem. Co., (1993), 91 Ohio App.3d 48. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Fiorella v. Ashland Oil, Inc. (1993), 92 Ohio App.3d 411. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Gressman v. McClain (1988), 40 Ohio St.3d 359, 533 N.E.2d 732. . . . . . . . . . . . . . . . . . . . . . . 11
Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482. . . . . . . . . . . . . . . . . . . . . . . . 13
Hlusak v Sullivan, Eighth Dist. No. 74367, 2000 WL 868495. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Howard v. Jet Corr Classic, Inc. (Jan. 27, 2006), Clark Cty. App. 05CA0068, 2006 Ohio 415, 2006 WL 235051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 272. . . . . . . . . . . . . . . . . . . . . . 14
Turner v. Turner (1993), 67 Ohio St.3d 337. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Walton v. Springwood Products, Inc. (1995), 105 Ohio App.3d 400. . . . . . . . . . . . . . . . . . . . . . 22
Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740, 651 N.E.2d 1314. . . . . . . . . . . . . . . 9
Statutes & Other Authorities
Ohio Rev. Code §2745.01. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ohio Rev. Code §2745.01(C). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
29 CFR 1910.178.(m)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 20
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Statement of the Assignments of Error
Assignment of Error No. 1: The trial court erred when it granted summary judgment in favor ofAppellee ThyssenKrupp Materials N.A., Inc.
Assignment of Error No. 2: The trial court erred in granting summary judgment to AppelleeThyssenKrupp Materials, NA, Inc., where the evidence indicates that ThyssenKrupp failed toutilize a safety guard in its possession.
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Statement of the Issues Presented for Review
I. First Issue Presented for Review: Whether under Ohio Rev. Code §2745.01(A) and (B),a plaintiff must show either “intent to injure” or “deliberate intent to injure” on the part ofthe employer.
II. Second Issue Presented for Review: Whether intentional failure to use a safety guardalready in the possession of the employer equates to the deliberate “removal” of the safetyguard.
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Statement of Facts
On October 14, 2008, Appellant Bruce Houdek was catastrophically injured (resulting in
an above-the-knee amputation) while working at Appellee ThyssenKrupp Materials NA, Inc., in
Cleveland, Ohio. Houdek was employed by ThyssenKrupp as a machinist and saw operator.
This job required him to operate a saw and to cut orders from large copper and brass plates. The
Friday prior to this incident, Houdek injured his back while performing his regular job as a saw
operator. He went to the hospital for evaluation and was placed on light duty by the physician.
He was given discharge instructions at the hospital that allowed him to return to work but with
“light duty” work restrictions. “Light duty” as prescribed in the physician’s order was defined as:
1) no lifting over 10 lbs.; 2) no pushing/pulling over 10 lbs. of force; 3) sit, stand, walk as
tolerated; and, 4) no bending more than 3 times per hour. See, Opposition to Summary
Judgment, Original Document (O.D.) No. 36, Exhibit 3.
Houdek returned to ThyssenKrupp the following Tuesday, October 14 with the intentionth
of handing in his medical documentation. He turned over his medical papers to his supervisor,
Jared Kuhn, the third shift shop supervisor. Initially, he was told that there was no light duty
work available, and Houdek indicated that he could go home. Rather than let him leave, the
plant manager Joe Matras asked and encouraged Houdek to stay and work on tagging inventory.
At the time, ThyssenKrupp had begun changing its inventory control system and work had begun
on switching the tags on the inventory over to the new system. Upon being requested to tag the
inventory, Houdek testified as to the following exchange between himself and Matras:
QUESTION BY MR. GUICE:
Q. So he asked you to start tagging things with some sort of newidentification system?
A. Yes.
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Q. Did you tell him you can do that?
A. No.
Q. What did you tell him?
A. I said, “It says on my paperwork light-duty and I will go home.” Helooked at me and he said, “I think you can tag this stuff. Can you do thisfor me?” I looked at him and said, “Well, okay.” I had to think about itfor a second or two. It is my job, so I said, “Okay.”
See, Houdek Deposition, O.D. No. 19 at 30. In further deposition testimony, Bruce stated:
I came in that day and I told them I was going to go home. They told me to goback there and do it. So I did my job and I did what I was supposed to do.
Houdek felt pressured to stay and work on the inventory testifying that he felt that management
would have harassed him had he insisted on going home and that management did not like
employees to leave work. Id., at 67-68. In addition, he was afraid that he would be written up if
he left and didn’t comply with their request. Id.
Part of the reason that Houdek did not want to tag inventory was that the task would
require him to frequently bend over, directly in violation of his physician’s medical work
restrictions. See, Houdek Depo., O.D. No. 19 at 66-67 and Jared Kuhn Depo., O.D. No. 20 at
162-164. Although Jared Kuhn, Houdek’s supervisor, claimed not to know that this task would
require more bending than Houdek’s work restrictions permitted, he agreed that in order to reach
product on the lower racks bending would be required. See, Kuhn Deposition, O.D. No. 20 at
162-163. In fact, the task of re-labeling the product did aggravate Houdek’s back injury and he
had to periodically go into the bathroom during his shift to stretch it out. See, Houdek Depo.
O.D. No. 19 at 67.
Upon receiving his instructions to tag the inventory, Houdek first watched training videos
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and then took a quiz regarding the new inventory identification system. Upon completion of his
training, Houdek was instructed by Kuhn to start in Aisle A. Aisle A is a narrow aisle that dead
ends into a wall and that has racks on either side that are approximately 25 to 30 feet high. Only
one end of the aisle is open. The lighting in this particular aisle is significantly dimmer than the
adjacent aisle where newer, more efficient lighting had been installed.
Prior to starting to work on the inventory, Houdek went and informed George Krajacic,
the operator of the electric side loader (also referred to as a “Raymond”) that he was going to be
working in Aisle A. See, Krajacic Depo. O.D. No. 21 at 86. He specifically told Krajacic where
he would be working because Krajacic was the only person who would be operating the
Raymond in those aisles that night. Houdek then took a scissors lift (a type of motorized,
mechanical lift on wheels) and went to aisle A to begin tagging the material. Kuhn also testified
that he told Krajacic that Houdek would be working on tagging product. See, Kuhn Depo., O.D.
No. 20 at 74.
The Raymond is a side loader. A side loader is a type of forklift that has lifting forks
extending from the side of the equipment rather than in front. It is designed so that the operator
faces the racks and travels up and down narrow aisles sideways. The side loaders were not
equipped with any type of flashing or strobe light and did not have any type of audible warning
alarm to alert pedestrians to their presence. See, Matras Depo., O.D. No. 18 at 62 and Krajacic
Depo. O.D. No. 21 at 192. ThyssenKrupp did not have a formal written safety policy in effect
that would alert operators of the sideloaders when other employees, particularly pedestrians, were
in the aisles. At the ThyssenKrupp facility side loaders and pedestrians shared the same general
work area, including the aisles as small lots of product were pulled by hand. See, Kuhn Depo.
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O.D. No. 20 at 43, 79-85 and Vinceenzo Pendolino Depo., O.D. No. 22 at 21-22 and Krajacic
Depo., O.D. No. 21 at 26-27. This meant that the sideloaders and employees were in constant
and close proximity. Id. See also, Kuhn Depo., O.D. No. 20 at 85. ThyssenKrupp relied upon
the operators to be aware of the employee/pedestrians and vice versa. See, Pendolino Depo.,
O.D. No. 22 at 28-29. This system apparently worked fairly well under circumstances where the
employees were only in the aisles for a brief period of time pulling the product being ordered.
This was not the factual circumstances on the day of Houdek’s injury as he was working for an
extended period in the same aisle.
After working approximately five hours in aisle A tagging material, Houdek was
positioned at the second to last bay, near where the aisle dead ends into the wall. Houdek was
bent over in the bay looking at the material on the ground, when he heard what sounded like the
Raymond moving. He thought that the Raymond was in the next aisle over from him. When the
sound got louder he realized that the Raymond might be in his aisle and when he stood up to look
out into the aisle the Raymond was coming right at him and only a couple of feet away. He had
nowhere to go being trapped between the Raymond, the racks on either side of the aisle and the
scissor lift at his back. He attempted to climb up the scissor lift to get out of the way,
unfortunately he was unable to get out of the way and the Raymond crushed him against the
scissor lift. George Krajacic was operating the Raymond when Houdek was injured.
It is dangerous for a sideloader to enter an aisle where a pedestrian is present as the width
of the sideloader completely fills the aisle, leaving only three to four inches on either side. See,
Joseph Matras Depo., O.D. No. 18 at 47-48. Because the aisles dead end, when the sideloader
enters the aisle where a pedestrian is located, the pedestrian is trapped. See, Kuhn Depo., O.D.
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No. 20 at 44.
Although George Krajacic had received training on the operation of tow motors, he had
not received training specific to the safe operation of a side loader. See, Krajacic Depo., O.D.
No. 21 at 20. He had been using the side loader to fill orders for about 45 minutes just prior to
the incident in which Bruce was crushed. When he goes down the aisle he generally faces the
rack as opposed to facing the direction that the side loader is actually traveling. Krajacic never
received training or instruction that he was required to look in the direction of travel. At the time
of this incident he was driving the side loader at full speed, which was consistent with
ThyssenKrupp’s regular practice. He said he operated the side loader at full speed to keep up
with the orders that needed to be filled.
Krajacic testified that he forgot that Houdek was in Aisle A and that he just did not see
Houdek or the scissors lift until the side loader was about to crush him. Krajacic testified there
was nothing to remind operators of the side loaders that someone was working in the aisle or to
prevent sideloaders from entering an aisle where pedestrians were located. This practice was
immediately changed after Houdek’s injury to require the placement of cones and the use of gates
to block off aisles where employees were working. Coincidentally, George Krajacic had
discussed this exact danger of a pedestrian being struck by a side loader with the warehouse
manager Joe Matras just a few days prior to Houdek’s injury. Krajacic testified:
Q. Who do you believe you had that conversation with?
A. I believe I mentioned that in a meeting when Joe told us that we, you know,were going to do that [have a worker in an aisle changing labels while sideloaderswere being used in the same aisle/area] I said something to the effect of, Hey, youknow, why are you doing this when there’s a production going on? Why don’t wedo this when there’s nothing going on over there? I believe I did.
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Q. And what was Joe’s response?
MR. GUICE: Objection.
A. When I said – well, when I made that suggestion and he said, if I recallcorrectly, something to the effect of, you know, we’re going to try toaccommodate this as best we can. He didn’t I don’t believe respond specificallyto that suggestion. And I asked if I should – in our safety meeting with Joe, Iasked if I should move the orders, that if somebody tells me they’re going to bedown a specific aisle, if I should move those orders out of the run until they’re outof the aisle, and he said, No, they’ll get out of your way.
Q. This conversation, this discussion with Joe took place before this incident?
A. Yes.
Q. Did it take place during a meeting, a specific meeting or just a conversationyou and Joe were having?
A. It took place in a meeting.
* * *
Q. And you proposed to Joe during that time that one of the ways you could planfor this would be to reorder your invoices so that you could make sure you didn’thave to go down an aisle somebody was going to be down?
A. Correct.
Q. And Joe’s response to you was that that wasn’t going to be necessary?
A. Correct.
See, Krajacic Depo., O.D. No. 21 at 124-126. Despite the very specific concern voiced by
Krajacic concerning the danger posed by having employees working for extended periods of time
in the aisles, Matras failed to institute any preventative safety measures and failed to require that
employees use the cones (already in its possession) to mark occupied aisles. Krajacic was
concerned about employees working in the aisles specifically in reference to inventory change
over because this would have employees working in an aisle for an extended period of time, as
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opposed to the normal circumstance in which employees were only in the aisle for a short period
of time pulling inventory. Matras position was that employees in the aisle would move out of the
way of the side loaders and that no precautions were necessary. Not only was Matra’s position
impossible given the space constraints, but his decision proved catastrophic.
Following Bruce Houdek’s injury, ThyssenKrupp was cited by the U.S. Department of
Labor, Occupational Safety and Health Administration (OSHA), with the very violation and
safety issue raised by George Krajacic before these events unfolded. The citation read:
Citation 1 Item I Type of Violation: Serious
29 CFR 1910.178.(m)(1): Powered industrial truck(s) shall not be driven up toanyone standing in front of a bench or other fixed object:
Inside the ware house section of the facility, the employer did not prevent a sideloader from entering a narrow aisle way that was already occupied by an employeethus creating a caught between hazard.
See, Plaintiff’s Opposition to Summary Judgment, O.D. No. 36, Exhibit 4.
Statement of the Case
Houdek filed his complaint in this case on June 5, 2009 against named Defendants
ThyssenKrupp Materials NA, Inc., and the Ohio Bureau of Workers Compensation. On August
6, 2009 the BWC filed a motion to realign the parties to make it a new party plaintiff in the case.
Said motion was granted by the trial court. On March 8, 2010, ThyssenKrupp filed a motion for
summary judgment on the claims of Houdek and the BWC. The trial court granted summary
judgment in favor of ThyssenKrupp on June 23, 2010, finding that Plaintiff could not show the
requisite intent to injure. A clarification entry was filed by the trial court on July 8, 2010, to
clarify that summary judgment was also being granted in favor of ThyssenKrupp on the claims of
the BWC. Houdek timely filed his notice of appeal on July 12, 2010.
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Law & Argument
Assignment of Error No. 1: The trial court erred when it granted summary judgment infavor of Appellee ThyssenKrupp Materials N.A., Inc.
First Issue Presented for Review: Whether under Ohio Rev. Code §2745.01, a plaintiffmust show either “intent to injure” or “deliberate intent to injure” on the part of theemployer.
a. The appropriate legal standard.
The trial court determined that “plaintiff cannot show the requisite intent on the part of
Defendant ThyssenKrupp” and granted ThyssenKrupp’s motion for summary judgment. The
issue thus framed is: what is the “requisite intent,” and secondarily, what evidence meets that
threshold? Ohio Rev. Code §2745.01 actually contains two separate standards – the trial court’s
entry fails to indicate which standard it applied. This section states:
(A) In an action brought against an employer by an employee * * * fordamages resulting from an intentional tort committed by the employer during thecourse of employment, the employer shall not be liable unless the plaintiff provesthat the employer committed the tortious act with the intent to injure another orwith the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer actswith deliberate intent to cause an employee to suffer an injury, a disease, acondition, or death. (Emphasis added.)
The statute provides that the employer must act with either “intent to injure” or belief the injury
was “substantially certain,” which is defined as “deliberate intent.” A fair reading of the statute
reveals that either “intent to injure” or “deliberate intent to injure” will suffice. Shown
graphically, the statute provides:
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Plaintiff in an employer intentional tort action must show:
O
R
Because these standards are set forth in the disjunctive, the very language of the statute compels a
finding that there be a fundamental difference between “intent to injure” and “deliberate intent to
injure.”
What then, is “intent to injure?” Black’s Law Dictionary, Fifth Edition defines “intent”
as:
Design, resolve, or determination with which person acts. * * * Being a stateof mind, is rarely susceptible of direct proof, but must ordinarily be inferred fromthe facts. It presupposes knowledge. * * * A mental attitude which canseldom be proved by direct evidence, but must ordinarily be proved bycircumstances from which it may be inferred. * * * A state of mind existingat the time a person commits an offense and may be shown by act, circumstancesand inferences deducible therefrom. * * * Intent refers only to the state ofmind with which the act is done or omitted. (Citations omitted.)
Because it is impossible to ever know an individual person’s state of mind, let alone a
corporation comprised of many individuals, the law realizes that such “intent” is necessarily
shown by acts, circumstances and the inferences that arise therefrom. The analysis of intent, for
purposes of intentional tort case brought by an employee against an employer, rests upon the
employer's actual knowledge of, and its response to, the dangerous situation which resulted in the
Intent to Injure Employer Committed TortiousAct With Belief Injury Was“Substantially Certain” to Occur
“Substantially Certain” means DeliberateIntent to Cause Injury or Death
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plaintiff/employee's injury. Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740, 651
N.E.2d 1314.
Therefore, the acts, omissions, circumstances and the inferences that the acts, omissions
and circumstances create are the evidence that go directly to showing the “state of mind” i.e., the
“intent” of the employer. That being the case, there was sufficient evidence to show that
ThyssenKrupp acted with “intent to injure” appellant.
Black’s Law Dictionary defines “injure” as:
To violate the legal right of another or inflict an actionable wrong. To do harm to,damage or impair.
Under the “intent to injure” standard, appellant need not show that ThyssenKrupp acted
deliberately, but only that based upon its acts, omissions, the circumstances of the injury and
those inferences, that ThyssenKrupp had knowledge that it was violating the legal rights of
another or inflicting an actionable wrong.
The use of circumstantial evidence to prove intent or knowledge is common place in the
law. In dram shop cases, for example, the use of circumstantial evidence to show that the bar
owner knowingly served the intoxicated individual is often the only means of proving the case.
As in an employer intentional tort, the owner of the bar would never make an admission that was
against their interest. An employer will never admit that they intended to harm an employee,
therefore, circumstantial evidence is always necessary to prove intent.
In Bickel v. Moyer,(September 29, 1994), Third Dist. App. No. 50-94-14, unreported, a
dram shop case, the court recognized that requiring liability to be conditioned upon such an
admission would not make sense since a bar and its employees will likely never make such
admissions against their interest. In that case the court stated:
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[I]t is logical to presume that a liquor permit holder, or its employee(s), may nevermake the admission that they continued to serve a person after that personexhibited signs of intoxication. For a liquor permit holder to make such anadmission would be to concede liability on his behalf. Thus, the only way for athird party injured by an intoxicated person to substantiate his claim against theliquor permit holder would be by use of circumstantial evidence. The OhioSupreme Court has stated that circumstantial evidence is not less probative thandirect evidence, and, in some cases, is even more reliable. State v. Jenks (1991),61 Ohio St.3d 259, 272. In fact, ‘in some instances certain facts can only beestablished by circumstantial evidence.’ Jenks, supra.
* * *
Wherever, from competent evidence, either direct or circumstantial, the trier ofthe facts is entitled to hold as a conclusion of fact and not as a presumption of lawthat the information was personally communicated to or received by the party, thenotice is actual. In re Estate of Fahle (1950), 90 Ohio App. 195, 197. Thus,circumstantial evidence may be presented to establish a liquor permit holder’sactual knowledge of the intoxication of one of its patrons.
Id., at *8-*9. Accord, Hlusak v Sullivan, Eighth Dist. No. 74367, 2000 WL 868495 at *8 (actual
knowledge can be demonstrated by circumstantial evidence, including by way of expert opinion
that patron appeared intoxicated when liquor was served). As in the dram shop liability context,
absent the rare and virtually non-existent admission of guilt, circumstantial evidence is the only
manner in which “intent” may be shown.
In Gressman v. McClain (1988), 40 Ohio St.3d 359, 533 N.E.2d 732, the Ohio Supreme
Court stated:
Generally speaking, a person has knowledge of an existing condition when hisrelation to it, his association with it, his control over it, or his direction of it aresuch as to give him actual personal information concerning it. Howard v.Whittaker (1933), 250 Ky. 836, 848-849, 64 S.W.2d 173, 178.
The use of circumstantial evidence in proving an employer intentional tort is not new. In
Emminger v. Motions Savers, Inc. (1990), 60 Ohio App.3d 14, 17, the court held:
Proof of the employer's intent in the second category is by necessity a matter of
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circumstantial evidence and inferences drawn from alleged facts appearing in thedepositions, affidavits and exhibits. Even with these facts construed most stronglyin favor of the employee as required by Civ.R. 56, the proof of the employer'sintent must still be more than negligence or recklessness.
Thus, it would appear that proving intent by circumstantial and inferential evidence is not only
acceptable, but necessary. Therefore, “intent to injure” on the part of ThyssenKrupp may be
shown by circumstantial evidence as well as the inferences that flow from that evidence.
b. Evidence of “Intent to Injure.”
The acts, omissions, circumstances and the inferences that the acts, omissions and
circumstances create, are the evidence that go directly to showing the “state of mind” i.e., the
“intent” of ThyssenKrupp. Evidence of this “state of mind,” include the following:
1. Employer’s Knowledge that Injury Would Occur.
Management at ThyssenKrupp knew that having an employee work for an extended
period of time in an aisle was dangerous and that it made it likely that the operator of a side
loader would forget during their constant coming and going in and out of the aisle that an
employee was stationed there. Where the normal activity of having pedestrian employees pulling
stock meant that they were in the aisleway, those employees attention was not diverted
significantly away from the dangers posed by the side loaders. Employees performing this task
were there to grab the stock and carry it out of the aisle. Their attention would only momentarily
be diverted from the aisle and the possible presence of a sideloader.
Conversely, when an employee was assigned to perform a task that involved working
directly with the inventory, such as the conversion required in this case, the employee’s full
attention was focused upon the task at hand, and away from either looking at the aisle or being
able to simultaneously watch out for the side loaders. In addition, the employee would be
13
working within the aisle for an extended period of time (Houdek was in the subject aisle for five
hours before his injury) and would become complacent to the noise of the side loaders moving in
that, and adjacent aisles. Because the side loaders were not equipped with flashers or audible
warnings, this environment made a collision between the two inevitable.
As set forth above, prior to this incident George Krajacic had a conversation with Joe
Matras, ThyssenKrupp’s plant manager, where he specifically asked about having the inventory
project performed during third shift when the side loaders would not be in operation or having
the inventory pulls from the area where inventory tagging was taking place being pulled at a later
time when the employee was no longer in the aisle. Matras told Krajacic that they were
accommodate this inventory conversion as best they could, meaning it would take place during
regular shift hours while production was also taking place. After Houdek’s accident, George
Krajacic was speaking with Matras in his office and Krajacic testified to the following exchange:
Q. Tell me what was said between you and Joe during that meeting.
A. I just started crying and I said, Joe, I never, I never meant for or dreamedanything like this could happen, you know, I said, I feel so terrible, and Joe said –
MR. GUICE: Objection.Go ahead.
A. He said, George, he said, Don’t blame yourself. He said, I blame myself forthis. He said – I’m paraphrasing because I don’t remember his exact words, but Ido definitely remember what was conveyed and he said, I knew, you know, thatsomething could happen, something like this could happen and I didn’t doanything about it.
See, Krajacic Depo., O.D. No. 21 at 138. This is important testimony. Matras, the plant manager
knew the exact danger (as he certainly must have known, given that Krajacic had questioned him
about this very same danger shortly before this incident and during a pre-shift safety meeting)
14
that his action of requiring an employee to perform the dangerous job of working in the aisle
unprotected, could result in injury. The full knowledge of this danger and knowing that the side
loaders were not equipped with audible signal, strobes or any flashing lights, is evidence of intent
or state of mind from which it may be inferred that ThyssenKrupp intended to harm Houdek. In
addition, since the side loader is electrically powered it makes very little noise when it is running
and it is very difficult to hear it when the other equipment like metal saws in the warehouse are
running.
In addition to Matras being warned about the dangerous conditions in the ThyssenKrupp
facility, there is also testimony that another employee, Vince Pendolino had had some close calls
with pedestrians and the side loader. See, Krajacic Depo., O.D. No. 21 at 154. Any inferences
raised by the evidence must be construed in favor of the party opposing summary judgment.
Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 485, citing Turner v. Turner
(1993), 67 Ohio St.3d 337, 341; Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266,
272, 273 (summary judgment is improper where evidence gives rise to competing inferences);
Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7 at 15 (a trial court should not grant
summary judgment if an inference in favor of the nonmoving party can be drawn from the facts);
see also, Fiorella v. Ashland Oil, Inc. (1993), 92 Ohio App.3d 411 (plaintiff must produce some
evidence upon each element essential to establish liability, or produce evidence of a fact upon
which a reasonable inference may be predicated to support such element.) The trial court erred in
finding that there was no evidence of intent to harm Houdek.
2. The Knowing Failure to Use Available Safety Guards.
After Houdek’s injury, ThyssenKrupp obtained fluorescent safety vests, additional cones
15
and scissor gates to block off an aisle when an employee would be working in the aisle for a
period of time. It also changed its safety policy to require that these safety measures be taken to
avoid collisions between workers and side loaders. While this evidence of subsequent remedial
measures is not admissible to prove the feasability of precautionary measures. Evid.R. 407,
which deals with the admission of subsequent remedial measures, states:
When, after an event, measures are taken which, if taken previously, would havemade the event less likely to occur, evidence of the subsequent measures is notadmissible to prove negligence or culpable conduct in connection with the event.This rule does not require the exclusion of evidence of subsequent measures whenoffered for another purpose, such as proving ownership, control, or feasibility ofprecautionary measures, if controverted, or impeachment.
In Felden v. Ashland Chem. Co., (1993), 91 Ohio App.3d 48, this court, in discussing Evid.R.
407, found:
Evid.R. 407 prohibits the admission at trial of any remedial measure which isoffered to prove negligence or culpable conduct. Evid.R. 407, however, does notprohibit testimony as to remedial measures when offered to show ownership orcontrol, the feasibility of precautionary measures or impeachment purposes. Cf.Coggiano v. Medtrovic, Inc. (1988), 47 Ohio App.3d 29, 547 N.E.2d 389; E. OhioGas Co. v. Van Orman (1931), 41 Ohio App. 56, 179 N.E. 147; Ashtabula v.Bartram (1888), 3 Ohio C.C. 640, 2 Ohio C.D. 372.
Testimony before the trial court established that ThyssenKrupp owned a number of orange safety
cones prior to Houdek’s injury. Despite the fact that it possessed these safety cones,
ThyssenKrupp used them to mark stock and they were never used to mark an aisle where
employees were working. See, Madras Depo. O.D. No. 18 at 65 and 123. That ThyssenKrupp
made use of the safety cones after Houdek’s injury indicates, and is admissible evidence of, the
feasability of using them as a means of reminding the side loader operator’s of the presence of a
worker in the aisle. Madras admitted and testified that nothing prevented ThyssenKrupp from
utilizing the orange safety cones to remind drivers that a worker was present in the aisle. Id., at
16
127.
It is also evidence from which an intent to injure is inferrable, as the state of mind of
ThyssenKrupp was such that, despite having been directly warned by George Krajacic of the
injury to which it was subjecting its employees, it took no action (an omission) to utilize even the
safety equipment it already had in its possession.
3. Requiring Appellant to Perform Duties in Violation of Medical Restrictions.
In the lower court, appellant presented evidence that he was required to work in violation
of medical restrictions imposed by his physician. Four days prior to this incident, Bruce had
sustained a back injury while on the job at ThyssenKrupp. Bruce went to the hospital on October
10, 2008 and the emergency room doctor placed him on light duty work restrictions. These
restrictions included: 1) no lifting over 10 lbs.; 2) no pushing/pulling over 10 lbs. of force; 3) sit,
stand, walk as tolerated; and, 4) no bending more than 3 times per hour. See, Opposition to
Summary Judgment, O.D. No. 36, Medical Record, Exhibit 3.
ThyssenKrupp requires that the hospital paperwork be turned in every time that an
employee goes to the hospital. Bruce returned to work on October 14, 2008 and turned in the
emergency room physician’s orders indicating his work restrictions. Bruce was willing to go
home if there was no light duty work that complied with his work restrictions. Instead, the plant
supervisor instructed him to tag material as part of an on-going change over of the company’s
inventory system. Performing this task required him to bend over frequently to reach the
material, which was not only against his work restrictions but also aggravated his prior back
injury. Bruce testified that had he declined to perform this task he could have been written up.
See, Houdek Deposition, O.D. No. 19 at 68.
17
Ohio courts have held that an employer’s violation of an employee’s medical restrictions
is evidence sufficient to create a jury question on the issue of “intent to injure.” In Bee v. Toth
Industries, Inc. (2002), 150 Ohio App.3d 184, the court held that “an employer who forces its
employee to work in an environment that violates the employee’s valid medical restriction may
be found to have intended to harm the employee.” Id. at 188 (emphasis added; citation omitted).
In its opinion, the Bee court distinguished between environmental hazards and those hazards that
are idiopathic:
Medical restrictions, however, are inherently idiopathic. A condition or substanceor a practice that is perfectly benign for most employees becomes harmful to aspecific employee because of that employee’s specific condition. * * * With amedical restriction, it is the violation of the restriction itself that poses the “exactdanger” from which “some manner” of injury occurs. To hold otherwise would beto permit an employer to substitute its lay opinion of an employee’s medicalcondition for that of a physician.
Id. at 190 (citations omitted). Therefore, ThyssenKrupp’s directive ordering appellant to perform
duties directly in contravention of his medical restrictions was evidence of ThyssenKrupp’s
intent to injure appellant.
4. Requiring the Employee to Perform Job Duties Under Dangerous Physical Conditions.
In addition to requiring appellant to perform tasks in violation of his medical restrictions,
ThyssenKrupp required appellant to work under physical conditions which show that through its
acts and the circumstances and inferences deducible therefrom, it intended to harm appellant.
First, ThyssenKrupp required appellant to tag inventory in an aisle that was only open on one
end. There was only one way in or out of the aisle and the racks on either side were
approximately 25 to 30 feet in height. The width of the side loader was as wide as the aisle. As
a result, when the sideloader travels down the aisle there was no space for a pedestrian to stand or
18
position themself to allow the sideloader to pass by. Consequently, once the side loader entered
the aisle there was no place for Bruce Houdek to escape to safety.
In addition to the fact that the aisle had only one open end, the lighting in the aisle that
appellant was working in was dimly lit. While ThyssenKrupp had upgraded some of the lighting
in other aisleways, this particular aisle was very dim. The evidence in this case demonstrates that
while working in Aisle A, the lighting was well below acceptable levels and created a situation in
which the employees worked in near darkness. It was 9:30 at night and the skylights in the roof
did not provide any natural illumination. Again, aisle A, the aisle in which Houdek was working,
is a confined space. The aisle, lined on each side by tall, continuous product racks, came to a
dead end at the wall. The racks were 25 to 30 feet in height and full of product. This aisle grew
darker the farther back (that is, closer to the dead end at the wall). The brighter lighting in the
adjacent aisles did not help to illuminate Aisle A because of the height and amount of product on
the racks. George Krajacic complained of the lack of lighting being a safety issue to his
supervisors. In deposition testimony he stated:
QUESTIONS BY MR. GUICE:
Q. Prior to the accident, did you feel like there was anything wrong with thelighting in the stacks?
* * *
A. Yes, I do. I mean, I think that it’s been talked about there that, you know,people have complained about the lighting down there several times. * * *[T]hat’s why they were in process of trying some new options out forlighting.
In his affidavit, Houdek’s expert, Frank L. Burg, CSP, addressed the safety issue of not having
adequate lighting at ThyssenKrupp:
a. The aisle where Plaintiff was working at the time of this incident was
19
dimly illuminated, measuring during even daylight hours as low as 1.4 footcandles and no reading higher than 5 foot candles. The adjacent aislereadings were five times higher because different light fixtures with morepowerful light bulbs had been installed.
* * *
b. Inadequate lighting contributed to this injury and is also similar to theremoval of a guard when adequate lighting is expected in the workplace.The required lighting in an industrial area with machinery is, at aminimum, 5-foot candles per 29CFR1910.219(C)(5), ANSI A11.1965incorporated by reference in OSHA. None of the measurements of thelighting in this aisle met the standards, customs and practices within theindustry.
George Krajacic testified that if there has been better lighting in aisle A, he would have seen
Bruce and this incident would have been avoided. See, Krajacic Depo., O.D. No. 21 at 110.
Requiring Houdek to perform his job functions under dangerous physical conditions is evidence
from which a jury could infer that ThyssenKrupp’s state of mind was such that it intended to
injure Houdek.
Clearly, no employer is going to voluntarily admit that harm was intended to an
employee. Thyssenkrupp argued below that “no one in management testified that they intended
Plaintiff to be injured on the day of the accident.” See, Motion for Summary Judgment, O.D. No.
26 at 10. Self-serving, after-the-fact testimony that everyone liked Plaintiff and no one wanted to
see him get hurt is contradictory to the before-the-fact deliberate actions that were taken. It is
also not difficult to expect that guilt, grief and fear of financial repercussions would dictate such
a defensive response.
If all a defendant needed to say after-the-fact was that they liked plaintiff did not intend to
harm plaintiff, then no defendant could ever be held accountable for a workplace intentional tort
and this statute would be rendered moot. If ThyssenKrupp’s argument were accepted, this is
20
exactly the result regardless of the before-the-fact deliberate actions that were taken such as in
this case.
However, the evidence and testimony before the trial court, and the inferences that flowed
therefrom, when construed in Houdek’s favor, demonstrated “intent to harm” on the part of
ThyssenKrupp. As a result, the trial court erred when it granted summary judgment in favor of
ThyssenKrupp.
Assignment of Error No. 2: The trial court erred in granting summary judgment toAppellee ThyssenKrupp Materials, NA, Inc., where the evidence indicates thatThyssenKrupp failed to utilize a safety guard in its possession.
Second Issue Presented for Review: Whether intentional failure to use a safety guardalready in the possession of the employer equates to the deliberate “removal” of the safetyguard.
At the time of Bruce Houdek’s injury, ThyssenKrupp was in possession of orange safety
cones. Despite the fact that it had safety cones in its possession, it was not requiring employees
to use them to identify aisles where employees were working. See, Matras Depo., O.D. No. 18 at
65.
In enacting Ohio Rev. Code Chapter 2745, the Ohio General Assembly determined that
the removal of a safety device was, in and of itself, so highly dangerous that the legislature
defined such an act as the type of “deliberate intent” necessary to establish “substantial
certainty.” To establish such presumption, a plaintiff only needs to establish that the employer
deliberately removed a safety device. Ohio Rev. Code § 2745.01(c) provides: “Deliberate
removal by an employer of an equipment safety guard . . . creates a rebuttable presumption that
the removal . . . was committed with intent to injure another if an injury or an occupational
disease or condition occurs as a direct result.” (Emphasis added.)
21
In this case OSHA cited ThyssenKrupp with a violation of 29 CFR 1910.178(m)(1). See,
Opposition to Summary Judgment, O.D. No. 36, Exhibit 4. This regulation provides:
Powered industrial truck(s) shall not be driven up to anyone standing in front of abench or other fixed object.
The reason for this regulation is fairly obvious, doing so would present a “caught between”
hazard where the pedestrian would be trapped between the industrial truck and the fixed object.
In this case, the OSHA violation stated:
Inside the warehouse section of the facility, the employer did not prevent a sideloader from entering a narrow aisle way that was already occupied by an employeethus creating a caught between hazard.
If the hazard is being “caught between” the side loader and a fixed object, and if the aisles are
dead ends (as was the case here), then this hazard would occur whenever a side loader entered an
aisle that was occupied by a ThyssenKrupp employee. The only way to avoid this would be
some signal to the side loader operator that the aisle was occupied and that the side loader would
be prohibited from entering. If there is no guard, then an operator moving in and out of the aisle
will fail to remember when and employee is present in the aisle.
In a very real sense then, warning cones and gates are “guards” because they alert and
warn the operator of the side loader that the aisle is occupied and/or prohibit access to the aisle in
the first place. Frank L. Burg, CSP, is Houdek’s workplace safety expert and a workplace
engineer stated in his affidavit:
g. The blind entry and blocked access within this aisle would be considered a“confined space under OSHA regulations since there is no escape whenthe equipment enters the aisle. This is “willful” violation under OSHA inthat ThyssenKrupp Materials knew that there was no secondary egressfrom the aisle, that the side loader had an obstructed view for the operator,and there was poor lighting in the aisle, yet they failed to take anyreasonable and well-know precautions which would have prevented an
22
injury to employee working in their aisles. ThyssenKrupp had to knowthat there was a significant possibility that workers could be injured whenworking in a narrow poorly illuminated storage area where side loaders areutilized with no procedure to prevent contact between the equipment andthe workers. The knowledge of the hazard on the part of ThyssenKruppMaterials is demonstrated by the availability of cones and barricadeswhich were not being utilized. Not utilizing provided safeguards is thesame as removing safeguards.
h. Side loader and/or scissors lift operations which block the only exit andentrance to storage aisle violate provision of the Life Safety Code (firecode) when workers are present within the aisle and a procedure must bein place to assure that the aisles and passageways are open at all time whenworkers are attending to the racks.
I. Side Loaders and other material handling operations are extremelyhazardous; require appropriate engineering and administrative controlssuch as barricades to prevent workers from entering the area and a systemto assure that employees do not enter the area before or during side loadingoperations.
j. There must be procedures and training to make certain that the aisle isclear of personnel and that side loaders are never be operated without aformal procedure to assure that the operations are kept separate from otherduties which might expose workers to injury. This is the purpose of theconfined space regulations. Motion/backup alarms and/or the operatorsounding the horn prior to movement offer some protection but are notacceptable in a situation where a worker enters a confined space and theequipment has a significant blind spot and/or poor illumination.
k. ThyssenKrupp willfully violated OSHA, as well as, the customs andpractices with the industry by not taking well-known and reasonableprecautions and simply utilizing cones and barricades available at thefacility and in making certain that side loader operators were properlytrained to never operate the side loader unless they are absolutely certainthe path of travel in clear and unobstructed. Properly trained operatorswould never operate a forklift without clear vision of the path of travel andproper warning to pedestrians.
l. This case demonstrates lack of proper procedures and poorly trainedoperators will result in serious injury and/or death to an innocent person.The need for procedures, barriers, warnings, proper illumination andalarms on equipment is a well-recognized principle for protection, as wellas, a custom and practice within the industry and within our society.
23
Humans rely on barricades, warning signals and devices in the world ofmoving vehicles. The ambulance, fire engine, police car with sirens andflashing lights is common to our experience. A blindsided side loadermoving into a confined, unprotected or not barricaded area with nospotters, no one checking and not even motion/backup alarm, no hornsounding, and an operator not properly trained to make certain the aisle isclear of pedestrians, creates at situation that must be considered imminentdanger.
m. These failures on the part of this employer in these areas directly lead tothe injuries sustained by this plaintiff.
See, Opposition to Summary Judgment, O.D. No. 36, Exhibit 1. In drafting R.C. § 2745.01(C)
the legislature did not define or limit what is meant by a deliberate removal of a safety guard.
A review of Ohio case law, which was in existence at the time of the drafting and passage
of the current Ohio Rev. Code Chapter 2745 provides some guidance. In Walton v. Springwood
Products, Inc. (1995), 105 Ohio App.3d 400, an employee was injured while working on a saw in
the workplace. The evidence demonstrated that the employer modeled and built the saw like
another saw in the shop. In building the second saw, the employer did not copy the first saw’s
safety devices and built no guard to house the saw blade. In operating the saw, the employer
required the employees to hold nine inch pieces of wood for cutting. While operating the saw,
the employee’s glove got caught into the spinning blade and the employee’s fingers were
severed. The court stated:
Appellant claims that appellee’s failure to install the safety guard on the [saw],after it had copied the ram from the other saw, was ‘tantamount todeliberate removal’ of a safety feature and, therefore, pursuant to Fyffe [v.Jeno’s, Inc. (1991), 59 Ohio St.3d 115] and Watson v. Aluminum Extruded Shapes(1990), 62 Ohio App.3d 242, 575 N.E.2d 235, sufficient to overcome a motion forsummary judgment. We agree.
* * *
The court in Fyffe indicated that the deliberate removal of the guard was evidencewhich needed to be considered by the trial court. While the evidence here does
24
not show that appellee willfully removed a safety feature, it failed to copyprotective measures implemented on the other machine. This action would beequivalent to purchasing a machine from the manufacturer, and rather thanremove the guard, simply fail to attach it during assembly.
* * *
In the instant action, appellee modified a piece of equipment. It copied the designof another machine, but it did not copy a [primary] safety feature which was builtinto the model. Further, appellant offered expert testimony which indicated thatthe failure to incorporate the guard, which is required under OSHA standards,created a dangerous condition.
Id. at 404-405 (emphasis added).
In Howard v. Jet Corr Classic, Inc. (Jan. 27, 2006), Clark Cty. App. 05CA0068, 2006
Ohio 415, 2006 WL 235051, the court held that requiring an employee working as a catcher on a
band saw to stand closer to the blade of the saw against normal operating procedure was
tantamount to a removal of a safety guard. Id. at ¶¶ 27-28. In rejecting the trial court’s
conclusion that standing near the blade was not tantamount to removal of a guard, the appellate
court stated:
The [trial] court also rejected Howard’s contention that the direction she wasgiven to stand near the saw was analogous to removal of a safety guard, becausestanding instead at the far end of the table prevents injuries from the saw. The[trial] court noted that the table was never moved. That is a distinction without adifference in relation to the implications that removal of a safety guardpresents; that the employee was exposed to greater danger because of theemployer’s deliberate act that diminished the value of a safety precaution. Tothe extent that standing at the far end of the wood table creates a safetyprecaution that benefits a catcher, the practical effect of instructing a catcher tostand within reach of the saw blade, as Howard says she was, amounts toremoval of a safety guard for purposes of the rule of Fyffe v. Jeno’s, Inc.
Id. at ¶28 (emphasis added), Appendix 12.
In the case a bar, evidence demonstrates that ThyssenKrupp failed to utilize key safety
features in this workplace, namely warning barricades or cones at the beginning of the aisle so
25
that the side loader operator would know someone is in an aisle and avoid traveling down that
aisle. By its own admission, it was in possession of safety cones prior to Houdek’s injury. As in
Howard, supra, this creates a situation where “the employee was exposed to greater danger
because of the employer’s deliberate act that diminished the value of a safety precaution.” By
not utilizing these critical and fundamental safety items, a jury could reasonably conclude this
failure is the removal of the only possible guard or safety measure.
As set forth above, there were also issues with the lighting within the ThyssenKrupp
facility. Although rarely thought of in such terms, lighting is an essential (perhaps the very first)
safety element in almost every work setting. This is even more true in a factory workplace with
multiple employees and dangerous moving equipment. The dangers of insufficient lighting in a
facility with running machines and equipment are self-evident. Employees cannot safety operate
machinery in darkness nor avoid striking co-workers with moving equipment if they are not able
to see those co-workers. In this case, the height of the racks blocked light from adjacent aisles
where the lighting was stronger. As a result, the aisle where Houdek was working was dimly lit
and grew dimmer the farther back it went toward the dead end wall.
In his expert affidavit, Mr. Burg addressed the safety issue of not having adequate
lighting at ThyssenKrupp:
a. The aisle where Plaintiff was working at the time of this incident wasdimly illuminated, measuring during even daylight hours as low as 1.4 footcandles and no reading higher than 5 foot candles. The adjacent aislereadings were five times higher because different light fixtures with morepowerful light bulbs had been installed.
* * *
b. Inadequate lighting contributed to this injury and is also similar to theremoval of a guard when adequate lighting is expected in the workplace.The required lighting in an industrial area with machinery is, at a
26
minimum, 5-foot candles per 29CFR1910.219(C)(5), ANSI A11.1965incorporated by reference in OSHA. None of the measurements of thelighting in this aisle met the standards, customs and practices within theindustry.
See, Affidavit of Frank L. Burg, CSP, O.D. No. 35. George Krajacic testified that if there had
been better lighting in aisle A, he would have seen Bruce and this incident would have been
avoided. See, Krajacic Depo., O.D. No. 21 at 110.
Like at any factory, lighting at ThyssenKrupp is an essential safety guard to protect the
employees from harm. When this evidence is viewed in Plaintiff’s favor, a jury could reasonably
find that ThyssenKrupp’s failure to provide adequate lighting in Aisle A is tantamount to a
removal of a safety guard. This is even more true given the fact that ThyssenKrupp chose to
provide adequate lighting in the adjacent aisle but not in Aisle A.
Conclusion
The trial court erred in finding that appellant could not show the requisite intent to injure
on the part of Appellee Thyssenkrupp, as there was sufficient evidence and testimony in the
record before it. Therefore, the decision of the trial court granting summary judgment in favor
of Thyssenkrupp should be reversed and the case remanded for trial.
27
Respectfully submitted,
________________________________David R. Grant (0065436)Stephen S. Vanek (0059150)Jeffrey H. Friedman (0018563)FRIEDMAN, DOMIANO & SMITH CO., L.P.A.55 Public Square, Suite 1055Cleveland, Ohio 44113t. 216.621.0070 f. 216.621.4008e. [email protected] [email protected] [email protected] Counsel for Plaintiff Bruce Houdek
Joseph A. Condeni (0030275)Stacey Walley (0082723)SMITH AND CONDENI LLP600 E. Granger Road, Second FloorCleveland, Ohio 44131t. 216.771.1760 f. 216.771.3387e. [email protected] for Plaintiff Bruce Houdek
28
CERTIFICATE OF SERVICE
A copy of the foregoing was served via regular U.S. Mail this 2 day of August 2010 nd
upon:
Gregory G. Guice, Esquire Benjamin W. Crider, EsquireReminger Co., LPA Lee M. Smith & Assoc., Co., L.P.A.1400 Midland Bldg. 929 Harrison Avenue101 Prospect Avenue, West Suite 300Cleveland, Ohio 44115 Columbus, Ohio 43215
Counsel for Appellee ThyssenKrupp Counsel for Ohio Bureau Materials NA, Inc. of Workers Compensation
____________________________________Attorney for Plaintiff/Appellant Bruce R.Houdek