ORfGiNaL

Ohio Supreme Court Case No. 2011-1076

IN THE SUPREME COURT OF OHIO

BRUCE R. HOUDEKPlaintiff=Appellee

V.

THYSSENKRUPP MATERIALS NA, INC., et al.Defendants-Appellants

On Appeal from the Eighth District Court of AppealsCuyahoga County Case No. 10-095399

APPELLEE BRUCE R. HOUDEK'S MERIT BRIEF

Stephen S. Vanek (0059150)David R. Grant (0065436)Jeffrey H. Friedman (0018563)Friedman, Domiano & Smith Co., L.P.A.55 Public Square, Suite 1055Cleveland, Ohio 44113t. 216.621.0070f. 216.621.4008e. stephenvanek&fdslaw.com

david rant fdslaw.comjeffreyfriedmankfdslaw.com

Joseph A. Condeni (0030275)Stacey Walley (0082723)Smith & Condeni, L.L.P.600 East Granger Road, Second FloorBrooklyn Heights, Ohio 44131t. 216.771.1670f. 216.771.3387CwywHoudek

^ a0.^

Bruce

Gregory G. Guice (0076524)Clifford C. Masch (0015737)Brian D. Sullivan (0063536)Reminger, Co., L.P.A.1400 Midland Building101 Prospect Avenue, WestCleveland, Ohio 44115-1093Counselfor Defendant-AppelleeThyssenkrupp Materials NA, Inc.

Natalie Tackett-Eby (0040221)Lee Smith (0020861)Lee M. Smith & Assoc., Co., L.P.A.929 Harrison AvenueSuite 300Columbus, Ohio 43215Counselfor Plaintiff-AppelleeOhio Bureau of'Workers Compensation

APR 2 ^ 2012

CLERK OF COURTSUPREME COURT OF OHIO

APR 2 3 2012

CLERK OF COURTSUPREME COURT OF OHIO

Table of Contents

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of Facts ............................................................. 1

Argument ....................................................................9

Appellant's Proposition of Law No. I:An intentional tort claim under R.C. §2745.01(A) or (B) is limited to thosesituations where an employer acts with specific intent to injure the employee ......... 9

Appellant's Proposition of Law No. II:A plaintiff may not establish an employer's specific intent to injure an employeeunder R.C. §2745.01(B) by proof of what a reasonable employer may believe ....... 19

Appellant's Proposition of Law No. III:There are no genuine issues of fact and Houdek cannot establish thatThyssenKrupp had specific intent to cause Houdek's injury . . . . . . . . . . . . . . . . . . . . . . 22

Conclusion ...................................................:..............25

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Table of Authorities

Cases

Allore v. Flower Hosp. 121 Ohio App.3d 229, 234, 699 N.E.2d 560 (6' Dist. 1997) ........ 24

Berardelli v. Foster Wheeler, S.D., Ohio No. 2:09-CV-946, 2010 U.S. Dist.LEXIS 102151 (Sept. 17, 2010) .................................................. 18

Byrd v. Faber, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47 . . . . . . . . . . . . . . . . . . . . . 23

Davis v. Davis, 115 Ohio St.3d 180, 2007-Ohio-5049, 873 N.E.2d 1305 . . . . . . . . . . . . . . . . . . 10

Dudley v. Powers & Sons, LLC, Sixth Dist. App. No. WM-10-015, 2011 WL 1590252, 2011-Ohio-1975 ..... .............................................................17

Fickle v. Conversion Technologies Intl., Inc., 2011-Ohio-2960, 2011 Ohio App.LEXIS 2485(6"'Dist.2011) .................................................... 13

Hewitt v. L.E. Meyers Co., 2011-Ohio-5413, 2011 Ohio App. LEXIS 4433, FN6, discretionaryappeal not allowed, 131 Ohio St.3d 1456, 2012-Ohio-648, 961 N.E.2d 1135 . . . . . . . . . . . . . . 12

Jose Diaz v. Superior Environmental Solutions, Inc., Lorain C.P. No. 09CV 160223 (Feb. 16,

2011) ..................:...................................................17

Kaminski v. Metal and Wire Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066 .... 14

Lennon v. Neil, 139 Ohio App.3d 437, 442, 744 N.E.2d 228 (111" Dist. 2000) .............. 23

McKinney v. CSP of Ohio LLC, Sixth Dist. App. No. WD-10-270, 2011 WL 2535606,2011-Ohio-3116 .............................................................. 17

Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d 215, 218,520 N.E.2d 198 (1988) ........................................................:24

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984) ............ 24

State v. Dixon, (May 13, 2004), Eighth Dist. App. No. 82951, 2004 WL 1067527 .......... 20

State v. Huffman, 131 Ohio St. 37, 1 N.E.2d 313 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State v. Johnson, 56 Ohio St.2d 35, 39, 10 0.O.3d 78, 80-81, 381 N.E.2d 637 (1978) ....... 20

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State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Stetter v. R.J. Corman Derailment Services, LLC, 125 Ohio St.3d 280, 2010-Ohio-1029,927 N.E.2d. 1092 ....... ...............................................:......15

UnitedStatesb. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) . . . . . . . . . . . . : . 23

Williams v. First United Church of Christ, 37 Ohio St.2d 150, 152,309 N.E.2d 124 (1974) ..........................................................23

Wilson v. Martin Pallet, Stark Cty. C.P. No. 2006-CV-2779 (Aug. 24, 2010) . . . . . . . . . . . . . . 18

Authorities

Ohio Revised Code §2745.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16, 18

Ohio Revised Code §2745.01 (A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 13, 14,16, 19

Ohio Revised Code §2745.01 (B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 12, 13, 14, 16, 19

Ohio Revised Code §2745.01 (C) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 12, 13, 14,16, 19, 20, 21

Ohio Revised Code §2745.01 (D) ................................................ 16

Statement of the Facts

On October 14, 2008, Appellee Bruce Houdek was catastrophically injured when he was

struck by a sideloader at Appellant ThyssenKrupp's facility. The crush type injury suffered by

Houdek resulted in an above the knee amputation. The preceding Friday, October 10`h, Houdek

had injured his back while perfonning is normal job duties for ThyssenKrupp as a saw operator.

See, Deposition of Bruce Houdek, O.D. No. 19 at 28. As a saw operator, Houdek cut orders from

large copper and brass plates. Id. After injuring his back, Houdek went to the hospital for

evaluation. Id.. The emergency room physician placed Houdek on light duty work restrictions

which, as prescribed in the physician's order, were defined as: 1) no lifting over 101bs.; 2) no

pushing/pulling over 101bs. of force; 3) sit, stand, walk as tolerated; and; 4) no bending more

than 3 times per hour. See, Id., at 66 and PlaintifPs Opposition to Summary Judgment, O.D. No.

36.

Houdek returned to ThyssenKrupp on Tuesday, October 14, 2008 with the sole intention

of handing in his medical documentation. See, Houdek Depo. O.D. No. 19 at 29. He turned over

his medical papers to his supervisor, Jared Kuhn, the third shift shop supervisor. Id. Initially,

Houdek was told that there was no light duty work available, and Houdek indicated that he could

go home. Rather than let him leave based upon his work restrictions, the plant manager Joe

Matras asked Houdek to stay and work on an inventory conversion project that ThyssenKrupp

had underway. Id. This project involved re-labeling ThyssenKrupp's warehouse inventory so it

could be tracked by the new system. Id. It involved tagging each piece of raw material inventory

on the warehouse racks. This required bending and reaching as the material was stored at

different heights in the warehouse racks.

Houdek tried to get Matras to allow him go home, but Matras pressured him to stay and

work the inventory project:

Q• So he asked you to start tagging things with some sort of new identificationsystem?

A. Yes.

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."

Id., at 30. In his deposition Houdek also testified:

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.

Id., at 66. Houdek felt pressured to stay at ThyssenKrupp 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 did not comply with their request to stay. Id.

Houdek did not want to perform the inventory job because the task would require him to

frequently bend over, which was in direct violation of his physician's medical work restrictions.

Id., at 66-67 and Deposition of Jared Kuhn, 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

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continual bending would be required. Id., at 162-163. In reality, 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 his back out. See, Houdek Deposition, O.D. No. 19 at 67.

After acceding to Matra's orders, Houdek was shown a brief video on how the inventory

was to be retagged under ThyssenKrupp's new system and then he was directed by Kuhn to start

tagging inventory in Aisle A. Id., at 30. Aisle A in the ThyssenKrupp facility is a narrow aisle

that dead ends into a wall. On either side of the aisle are racks approximately 25 to 30 feet high

reaching almost to the ceiling. Id., at 34-35. Only one end of the aisle is open. See, George

Krajacic Depo., O.D. No. 21 at 100. The lighting in this particular aisle is significantly dimmer

than the adjacent aisle where newer, more efficient lighting had been installed. See, Houdek

Depo., O.D. No. 19 at 65.

ThyssenKrupp utilizes sideloaders to pull the inventory to fill customer orders. A

sideloader is similar to a forklift except that it travels sideways so that it can fit down narrow

aisles to lift product off the racks. See, Krajacic Depo. O.D. No. 21 at 103. The operator is

positioned such that he is not facing the direction of the sideloader's travel, but rather he faces

the product stored on the warehouse shelves. Id. 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-employees to their presence. The width of the sideloader completely fills the narrow

aisles, leaving only three to four inches on either side. See, Joseph Matras Deposition, O.D. No.

18 at 47-48. As a result, there is not enough room for both a sideloader and a worker on foot to

be in the same aisle. Id.

Before to starting to work on the inventory retagging, Houdek went and informed George

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Krajacic, the operator of the side loader that he was going to be working in Aisle A. See, Houdek

Deposition, O.D. No. 19 at 32 and Jared Kuhn Depo., O.D. No. 20 at 74. 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. Id. at 33. Houdek then took a scissors lift (a

type of motorized, mechanical lift on wheels) and went to aisle A to begin tagging the material.

Id. at 32. The scissors lift was required in order to reach product stored up on the higher racks.

Jared Kuhn also testified that he told Krajacic that Houdek would be working on tagging product.

See, Kuhn Depo. O.D. No. 20 at 74.

George Krajacic was aware of the inventory re-tagging process and had voiced his safety

concerns to ThyssenKrupp management, specifically Joe Matras, in a safety meeting a few days

prdOr to Houdek's injury about this exact danger of having employees working in the aisles when

the sideloaders would be going into the aisles to pull orders. Krajacic testified in his deposition:

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.

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.

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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, George Krajacic Deposition O.D. No. 21 at 124-126.

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.

Small lots of product were frequently pulled by hand. See, Jared Kuhn Deposition O.D. No. 20

at 43, 79-85 and Vinceenzo Pendolino Deposition O.D. No. 22 at 21-22 and George Krajacic

Deposition O.D. No. 21 at 26-27. This meant that the sideloaders and employees were in

constant and close proximity. Id. See also, Jared Kuhn Deposition O.D. No. 20 at 85.

ThyssenKrupp's only safety plan in this regard was to hope that the operators remained aware of

the employee/pedestrians in the area and vice versa. See, Vinceenzo Pendolino Deposition O.D.

No. 22 at 28-29. Under normal operating conditions, where the employees were only in the

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aisles for a brief period of time pulling the product being ordered this system apparently worked.

However, this was not the factual circumstance on the day of Houdek's injury as he was working

for hours in the same location in the same aisle.

Houdek had been working in Aisle A for approximately five hours. He was positioned at

the second to last bay, near where the aisle dead ends into the building's wall. See, Houdek Depo.

O.D. No. 19 at 35-36. Houdek was bent down into a bay looking at the material on the ground,

when he heard what sounded like a sideloader moving. Id. at 36. Houdek thought that the

sideloader was in the next aisle over from him. Id. The sideloaders are electric and are relatively

quiet. When the sound became louder Houdek realized that the sideloader might be in his aisle.

Id. When he stood up to look out into the aisle the sideloader was coming straight at him and

was only a couple of feet away. Id., at 37. Because the sideloader completely filled the aisle and

the racks were full of product, there was no means or area of escape. See, Matras Depo., O.D.

No. 18 at 47-48. George Krajacic was sitting in the operator's seat but, as normal, was facing

sideways. Houdek attempted to climb up the scissor lift to get out of the way but was

unsuccessful. See, Houdek Depo. O.D. No. 19 at 37. The sideloader struck Houdek and crushed

him against the scissor lift. Id.

Although George Krajacic, the sideloader operator, 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. That night he had been using the side loader to fill orders for

about 45 minutes just prior to the incident. Id., at 97. Krajacic testified that he never received

training or instruction that he was required to look in the direction the sideloader was traveling.

Id., at 104. At the time of this incident he was driving the side loader at full speed, which was

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consistent with ThyssenKrupp's directives to its sideloader operators. Id., at 94. Additionally,

Krajacie testified that he operated the side loader at full speed to keep up with the orders that

needed to be filled. Id.

Krajacic testified that in the process of filling the orders he forgot that Houdek was in

Aisle A and that he did not see Houdek or the scissors lift until the sideloader was about to crush

him. Id., at 94. Krajacic testified there was nothing to remind operators of the sideloaders that

there was an employee working in the aisle and nothing to prevent sideloaders from entering an

aisle where employees were working. Id., at 98. 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. Id., at 164.

Joseph Matras directive to George Krajacic that employees in the aisle would move out of

the way of the sideloaders and that no safety precautions were necessary was an impossibility.

Id., at 126. As set forth above, once the sideloader entered the aisle, any employee in the aisle

was trapped because there was only 3-4 inches of clearance on either side. See, Joseph Matras

Depo., O.D. No. 18 at 47-48.

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 to ThyssenKrupp management before Houdek's injury.

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:

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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. ThyssenKrupp had

orange safety cones readily available at its facility. By making a conscious choice not to utilize

them, ThyssenKrupp removed this simple but effective safety guard which would have alerted

and reminded a sideloader operator that another employee was present in the aisle. It would also

have reminded sideloader operators to stay out of the aisle similar to the manner in which the

same cones are utilized to alert motorists and guide traffic through constructions zones.

After Houdek's accident, George Krajacic was speaking with Matras in his office and

Krajacic testified concerning 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. ThyssenKrupp management admitted that it was aware

of this exact danger and made a conscious choice not to take any preventative measures. Id.

Law & Argument

Appellant's Proposition of Law No. I:An intentional tort claim under R.C. §2745.01(A) or (B) is limited to thosesituations where an employer acts with specific intent to injure the employee.

A. R.C. §2745.01's Reduirements.

At the outset, a couple of points require clarification. In ThyssenKrupp's merit brief, it

argues that "Houdek did not allege that his injuries were the result of the removal of a safety

guard. As a consequence, Houdek's intentional tort claim was subject to the evidentiary

requirements set forth in R.C. 2745.01(A) and (B). See, Appellant's Merit Brief, footnote 1.

This is a false statement. ThyssenKrupp appears to argue that Houdek's claim is subject and/or

limited to the application of a "deliberate intent" standard. From the inception of this case

Houdek has alleged ThyssenKrupp's intent to injure him through the removal of a safety device,

and invoking R.C. §2745.01(C). See, Houdek's Complaint and Opposition to Summary

Judgment. Specifically, Houdek argued that the failure to use safety cones (which ThyssenKrupp

already had in its possession) was the equivalent of the removal of an equipment safety guard.

Houdek also argued that inadequate lighting in the aisle he was instructed to work in, requiring

him to work in derogation of his medical restrictions, requiring him to work in close proximity to

sideloaders that were operated at full speed, where operators were not trained to look in the

direction of travel when operating them, and where there were no safety barricades in place was

evidence of ThyssenKrupp's "intent to injure" under R.C. §2745.01(A) and (C). Houdek's

intentional tort claim was never limited to the deliberate intent requirement set forth in R.C.

§2745.01(A) and (B) as ThyssenKrupp states to the Court.

Moreover, Houdek has also argued from the beginning of this case that R.C. §2745.01, as

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crafted by the legislature, contains two separate standards for proving an employer intentional

tort: 1) intent to injure; or 2) acting with the belief that injury was substantially certain (defined

as acting with deliberate intent to cause injury). Section 2745.01(A) provides:

(A) In an action brought against an employer by an employee, or by the dependentsurvivors of a deceased employee, for damages resulting from an intentional tortcommitted by the employer during the course of employment, the employer shallnot be liable unless the plaintiff proves that the employer committed the tortiousact with the intent to injure another or with the beliefthat the injury wassubstantially certain to occur. (Emphasis added.)

This is a point that Appellant apparently does not dispute since it focuses its arguments only on

R.C. §2745.01(A) and (B) and does not address subsection (C).

A fair reading of the statute reveals that the two standards "intent to injure another" and

"substantial certainty/deliberate intent" are set forth in the disjunctive, as denoted by the use of

the word "or." The unequivocal statutory wording chosen by the legislature denotes two separate

legal standards. There can be no other explanation for the use of the disjunctive. As this Court

has reaffirmed on numerous occasions, it is not the province of the Court to re-write a statute, but

rather the Court must enforce the statute as written, giving the common ordinary meaning to each

word utilized by the legislature.

In Davis v. Davis, 115 Ohio St.3d 180, 2007-Ohio-5049, 873 N.E.2d 1305, this Court

addressed the construction and interpretation of a statute:

{¶13} Legislative intent controls our analysis. In State ex rel. Russo v.McDonnell, 110 Ohio St. 3d 144, 151, 2006 Ohio 3459, 852 N.E.2d 145, 149, westated, "'In construing a statute, our paramount concern is legislative intent."' Id.,

quoting State ex rel. Musial v. N Olmsted, 106 Ohio St.3d 459, 2005 Ohio 5521,835 N.E.2d 1243, P23. We further stated that "[i]n order to determine this intent,we must "'read words and phrases in context according to the rules of grammarand common usage.""' Id., quoting State ex rel. Cincinnati Bell Tel. Co. v. Pub.Util. Comm., 105 Ohio St.3d 177, 2005 Ohio 1150, 824 N.E.2d 68, P27, quoting

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State ex rel. Lee v. Karnes, 103 Ohio St.3d 559, 2004 Ohio 5718, 817 N.E.2d 76,P23; see, also, R.C. 1.42.

{114} This court also explained in Sharp v. Union Carbide Corp. (1988), 38 OhioSt.3d 69, 70, 525 N.E.2d 1386, that "[w]here a particular term employed in astatute is not defined, it will be accorded its plain, everyday meaning." Id., citing

State v. Dorso (1983), 4 Ohio St.3d 60, 62, 4 OBR 150, 446 N.E.2d 449; see, also,State v. Reeder (1985), 18 Ohio St.3d 25, 26-27, 18 OBR 21, 479 N.E.2d 280,quoting Mut. Bldg. & Invest. Co. v. Eftos (1949), 152 Ohio St. 369, 40 O.O. 389,89 N.E.2d 648; paragraph one of the syllabus, and also citing Youngstown Club v.

Porterfield (1970), 21 Ohio St.2d 83, 86, 50 Ohio Op.2d 198, 255 N.E.2d 262"The courts however will assume the legislature is using a word in its ordinarymeaning and our task is to accord'* * * its common, ordinary and usuallyaccepted meaning in the connection in which it is used ***."' [Ellipsis sic]).

{¶15} Furthermore, in State v. Lowe, 112 Ohio St.3d 507, 2007 Ohio 606, 861N.E.2d 512, P15, we affirmed that "a court may not add words to an unambiguousstatute, but must apply the statute as written." Id., citing Portage Cty. Bd of

Commrs. v. Akron, 109 Ohio St.3d 106, 2006 Ohio 954, 846 N.E.2d 478; see,also, Columbus-Suburban Coach Lines, Inc. v. Public Utilities Comm. (1969), 20Ohio St.2d 125, 127, 49 Ohio Op. 2d 445, 254 N.E.2d 8 "it is the duty of thiscourt to give effect to the words used, not to delete words used or to insert wordsnot used"). And as this court stated in Iddings v. Jefferson Cry. School Dist. Bd. of

Edn. (1951), 155 Ohio St. 287, 290, 44 Ohio Op. 294, 98 N.E.2d 827, "[t]oconstrue or interpret what is already plain is not interpretation but legislation,which is not the function of the courts." See, also, Barth v. Barth, 113 Ohio St.3d

27, 2007 Ohio 973, 862 N.E.2d 496, P 10; Lake Hosp. Sys., Inc. v. Ohio Ins.

Guar. Assn. (1994), 69 Ohio St. 3d 521, 524, 1994 Ohio 330, 634 N.E.2d 611;

and Thompson Elec., Inc. v. Bank One, Akron, N.A. (1988), 37 Ohio St.3d 259,

264, 525 N.E.2d 761.

Because the legislature's use of the disjunctive word "or" is plain, it requires no interpretation or

further construction. A plaintiff in an employer intentional tort claim must prove either that the

employer acted with "intent to injure another" or committed the tortious act with the belief that

the injury was "substantially certain to occur" (defined by R.C. §2745.01(B) as acting with

deliberate intent). The statute does not require proof of both - either will suffice. Shown

graphically, the statute requires:

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Intent to InjureOR

Employer Committed TortiousAct With Belief Injury Was"Substantially Certain" to Occur

I"Substantially Certain" means DeliberateIntent to Cause Injury or Death

Subsections (B) and (C) in the statute go on to further clarify "intent to injure"

(subsection (C)) and "substantially certain" (subsection (B)). Subsection (B) provides:

(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.

Subsection (C), which provides clarification of the types of actions undertaken by an employer

that are evidence of "intent to injure another":

(C) Deliberate removal by an employer of an equipment safety guard or deliberatemisrepresentation of a toxic or hazardous substance creates a rebuttablepresumption that the removal or misrepresentation was committed with intent to

iniure another if an injury or an occupational disease or condition occurs as adirect result. (Emphasis added.)

By it's own terms, subsection (C) applies to the statute's "intent to injure another" standard, not

substantial certainty/deliberate intent standard. It is equally clear that subsection (C) only

requires that the employer's removal of an equipment safety guard be deliberate or

misrepresentation of a toxic or hazardous substance be deliberate. To read subsection (C) as

requiring the employer's intent in removing the safety guard be to deliberately cause harm would

eliminate the distinction created by the legislature's express use of the disjunctive "or." As the

Eighth District Court of Appeals stated in Hewitt v. L.E. Meyers Co., 2011-Ohio-5413, 2011

-12-

Ohio App. LEXIS 4433, FN6, discretionary appeal not allowed, 131 Ohio St.3d 1456, 2012-

Ohio-648, 961 N.E.2d 1135:

In footnote 2, the Fickle' court noted that "R.C. 2745.01(C) does not require proofthat the employer removed an equipment safety guard with the intent to injure inorder for the presumption to arise. The whole point of division (C) is to presumethe injurious intent required under divisions (A) and (B). It would be quiteanomalous to interpret R.C. 2745.01(C) as requiring proof that the employer actedwith the intent to injure in order [to] create a presumption that the employer actedwith the intent to injure. Such an interpretation would render division (C) a

nullity."

Consistent with this interpretation, in order for the presumption to arise under subsection (C), the

plaintiff need only show that the employer acted deliberately in removing an equipment safety

guard or deliberately misrepresented a hazardous or toxic substance.

ThyssenKrupp frames its proposition of law to state that "R.C. §2745.01(A) or (B) is

limited to those situations where an employer acts with specific intent to injure the employee."

Revised Code §2745.01 does not utilize the term "specific intent." As set forth above, what the

statute requires is proof that the employer acted with "intent to injure another" or that the

employer committed the tortious act "with the belief that the injury was substantially certain to

occur" (defined as acting with deliberate intent to cause injury). Houdek submits that a more

accurate proposition of law would be:

An intentional tort claim under R.C. 2745.01(A) is limited to those situationswhere an employer acts with either "intent to injure another" as set forth insubsection (C) or where the employer commits the tortious act "with the beliefthat the injury was substantially certain to occur" as set forth in subsection (B).

Insofar as the statute is clear in its requirements, subsection (C) cannot be ignored. Any other

1 Fickle v. Conversion Technologies Intl., Inc., 2011-Ohio-2960, 2011 Ohio App. LEXIS

2485 (6te Dist. 2011).

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interpretation either adds or deletes words from the statute and results in legislation rather than

interpretation. Davis, supra.

B. The Definition of "Substantially Certain."

It is clear that the Eighth District Court of Appeals was troubled by the legislature's

reformulated definition of "substantial certainty." In the area of employer intentional tort law, the

phrase "substantial certainty" had become a term of art, defined and refined over many years and

through numerous legal opinions. With the passage of R.C. §2745.01(B), the legislature

redefined "substantial certainty" as applied to employer intentional torts to mean that the

employer "acted with deliberate intent to cause an employee to suffer an injury, disease, a

condition, or death." The Eighth District apparently struggled with trying to reconcile the prior

definition of "substantial certainty," which concerned itself with the level of probability of harm

as opposed to the new definition which goes directly to the employer's mental state. It is

probable that the two cannot, as the Houdek Court stated, be reconciled. For whatever reason, the

Eighth District's decision did not follow what Houdek was arguing. Houdek was not advocating

for the application of subsection (B) and the "substantial certainty" analysis to this case. Instead,

Houdek focused his arguments, as he is doing here, on the application of subsection (C) to this

case.

As set forth above, a court cannot ignore or fail to give meaning to the plain wording of a

statute. The Houdek Court found the legislature's wording in R.C. §2745.01(A) and (B) to be

incapable of hannonization and assigned that "harmonic dissonance" to a scrivener's error. With

all due respect to the Eighth District, Houdek submits that such an approach is unnecessary.

This Court upheld the constitutionality of R.C. §2745.01 in Kaminski v. Metal and Wire

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Co., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066 and Stetter v. R.J Corman

Derailment Services, LLC, 125 Ohio St.3d 280, 2010-Ohio-1029, 927N.E.2d 1092.

ThyssenKrupp references this Court's discussion in Kaminski relative to "substantial certainty"

and the intent of the statute. In Kaminski, this Court quoted the Columbiana Court of Appeals

when it stated:

{¶54} `Intent to injure' is clear and, therefore, is not defined in the statute.`Substantially certain,' however, is not as clear. Therefore, the legislatureprovided a definition. R.C. 2745.01(B) defines `substantially certain' as acting`with deliberate intent to cause an employee to suffer an injury, a disease, acondition, or death.'

{¶55} When we consider the definition of `substantial certain,' it becomesapparent that an employee does not have two ways to prove an intentional tortclaim as R.C. 2745.01(A) suggests. The employee's two options or proofbecome: ( 1) the employer acted with intent to injure or (2) the employer actedwith deliberate intent to injure.

This Court went on to state:

{¶56} As an initial matter, we agree with the court of appeals that the GeneralAssembly's intent in enacting R.C. 2745.01, as expressed particularly in2745.01(B), is to permit recovery only when an employer acts with specific intentto cause an injury, subject to sections LC) and (D). (Emphasis added.)

Implicit in the language employed by this Court in the Kaminski decision is the acknowledgment

that R.C. §2745.01 contains two standards, not merely one. Later in the Kaminski decision, this

Court stated:

{¶103 } Because R.C. 2745.01 is constitutional, the standards [plural] contained

in the statute govern employer intentional-tort actions, and the statutory

standards [again, plural] apply rather than the common-law standards of Fyffe. *

* * (Emphasis added.)

From the above quote, two things are readily apparent - 1) that the Fyffe standard (including the

Fyffe definition of "substantial certainty") no longer applies to employer intentional tort actions

-15-

and is supplanted by the statutory definition;Z and, 2) the statute contains two separate and

distinct standards: "intent to injure another" and "substantial certainty/deliberate intent." That

this Court chose to use the words "specific intent" does not alter the fact that the Court did so

while at the same time recognizing that the statute contains more than one specific level of intent.

While ThyssenKrupp cites many of the same portions of the Kaminski and Stetter

opinions in its brief, it ignores the distinctions that this Court recognized: that section (A) is

subject to sections (B), (C) and (D); and, that there are two separate ways to prove intent.

ThyssenKrupp would gloss over these distinctions in favor of a result where there was only one

standard of proof for an employer intentional tort - deliberate intent. In order to give the statute

the interpretation ThyssenKrupp urges, the wording of the statute would have to be modified as

follows:

(A) In an action brought against an employer by an employee, or by the dependentsurvivors of a deceased employee, for damages resulting from an intentional tortcommitted by the employer during the course of employment, the employer shallnot be liable unless the plaintiff proves that the employer committed the tortiousact ' with the belief that the injury was

substantially certain to occur.

(B) As used in this section, "substantially certain" means that an employer actswith <ADD> SPECIFIC, deliberate intent to cause an employee to suffer aninjury, a disease, a condition, or death.

2 In Stetter, the Court stated "It was the General Assembly's intent in enacting R.C.2745.01, as expressed particularly in 2745.01(B), to permit recovery for employer intentional

torts only when the employer acts with specific intent to cause an injury."(Emphasis in original.)

Stetter, supra at ¶26. This Court was likewise clear in Stetter that "R.C. §2745.01 does not

eliminate the common-law cause of action for an employer intentional tort." Stetter, supra at ¶28.

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ditect resulr

(D) This section does not apply to claims arising during the course of employmentinvolving discrimination, civil rights, retaliation, harassment in violation ofChapter 4112. of the Revised Code, intentional infliction of emotional distress notcompensable under Chapters 4121. and 4123. of the Revised Code, contract,

promissory estoppel, or defamation.

Unfortunately for ThyssenKrupp, such a position is untenable based upon the very clear, precise

and unambiguous wording of R.C. §2745.01. To reach that conclusion would require judicial

activism to re-write the clear statutory language drafted by the legislature.

ThyssenKrupp argues that allowing the Court of Appeals decision to stand would open

the "flood gates of intentional tort litigation." But a closer look at courts that have overruled the

employers' motions for summary judgment under R.C. §2745.01 reveals careful and thoughtful

application of the statute. These courts have also recognized that the statute contains two

separate and distinct standards and/or found that the statutory presumption of "intent to injure"

under subsection (C) had been met based upon the factual evidence. Jose Diaz v. Superior

Environmental Solutions, Inc., Lorain C.P. No. 09CV160223 (Feb. 16, 2011)("These two prongs

must mean something different. Otherwise one of these prongs would be unnecessary." Question

of fact created by employer's failure to provide fall protection equipment.) Dudley v. Powers &

Sons, LLC, Sixth Dist. App. No. WM-10-015, 2011 WL 1590252, 2011-Ohio-1975. (Finding

that dual palm actuators on a press were safety guards and their removal raised a question of fact

that precluded summary judgment.) McKinney v. CSP of Ohio LLC, Sixth Dist. App. No. WD-

10-270, 2011 WL 2535606, 2011-Ohio-3116. (Appellant established a rebuttable presumption

that the removal was committed with intent to injure where the employer instructed the operator

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to continue running an improperly programmed press after being notified of a problem with the

press's programmed safety features.) Wilson v. Martin Pallet, Stark Cty. C.P. No. 2006-CV-

2779 (Aug. 24, 2010). (Intentional disabling of an interlock safety device, which was the

proximate cause of the injury, resulted in a rebuttable presumption of the employer's intent to

injure). Berardelli v. Foster Wheeler, S.D., Ohio No. 2:09-CV-946, 2010 U.S. Dist.

LEXIS 102151 (Sept. 17, 2010) (Removal of scaffolding by employer constitutes removal of an

equipment safety guard.)

There is no question that the legislature intended to restrict the common law employer

intentional tort. Nevertheless, the wording of the statute makes it clear that there is now more

than one way in which to prove an employer intentional tort. The Court of Appeals was also

concerned about the Ohio Workers' Compensation Fund being forced to assume the risk for

employers whose employees are injured while following the employer's specific directives. The

Court was troubled by a policy that would "spread the risk of such employer conduct to all of

Ohio's employers, those for whom worker safety is a paramount concern and those for whim it is

not." The Ohio Bureau of Workers' Compensation is a party to this case and is seeking to

recover state funds it has paid on account of Houdek's injury. The responsibility for such

conduct (and use of state funds) in cases such as this should be ultimately be bome by the

employer.

This case was decided on motions for summary judgment. Houdek argued from the

outset that the deliberate removal of a safety guard (such as ThyssenKrupp's safety cones) along

with numerous other actions taken by ThyssenKrupp was more than sufficient evidence for a jury

to find or infer of intent to injure. The trial court granted summary judgment simply stating that

-18-

"plaintiff cannot show the requisite intent on the part of Defendant ThyssenKrupp." The

appellate court reversed the trial court making the specific finding that there were genuine issues

of material fact regarding the supervisory directives to both Houdek and the sideloader operator

as well as the sideloader operator's warning to the warehouse manager prior to this incident, that

prevented summary judgment. Even if the reasoning behind the Court of Appeals decision is

viewed as flawed in some respects, the fact remains that the evidence in this case was sufficient

to have overcome a motion for summary judgment under R.C. §2745.01, and the Court of

Appeals decision reaching that outcome should be affirmed.

Appellant's Proposition of Law No. II:A plaintiff may not establish an employer's specific intent to injure an employeeunder R.C. §2745.01(B) by proof of what a reasonable employer may believe.

ThyssenKrupp again inserts the word "specific" into its proposition of law. The word

"specific" is not contained anywhere within R.C. §2745.01. ThyssenKrupp takes issue with the

Court of Appeals decision wherein the Court held that an employer's "belief' that an injury was

substantially certain to occur under subsection (A) must be determined by an objective standard.

ThyssenKrupp argues that the employer's intent must be proven by a subjective determination.

Obviously, the Appellate Court was concerned that it was too easy for an employer to claim after

the fact that it "didn't intend to injure the employee" or claim ignorance of the hazardous

condition and thereby absolve itself of liability. Proving the state of mind of an individual is one

feat, knowing the mind of a corporation made up of numerous individuals, something else

entirely.

Absent a confession, knowing with absolute certainty the mind or the intent of a person

(or corporation) is a practical impossibility. Therefore, the law settles for proof of subjective

-19-

intent through actions and inactions - reviewed by the trier of fact in order to determine what the

employer's belief was to have been.3 "Intent" in the context of an employer intentional tort case

may only be proven through circumstantial evidence. Such evidence is most often the only

means of divining the "intent"of a person, let alone that of a corporation. State v. Huffman, 131

Ohio St. 37, 1 N.E.2d 313 (1936) ("The intent of an accused person dwells in his mind. Not

being ascertainable by the exercise of any or all of the senses, it can never be proved by the direct

testimony of a third person, and it need not be. It must be gathered from the surrounding facts

and circumstances under proper instructions from the court.") It is the case that many criminal

prosecutions are based upon circumstantial evidence and many criminal convictions are obtained

upon the basis of circumstantial evidence. There is compelling reason to hold an injured

employee to an even higher standard by requiring proof of the employer's subjective intent.

As regarding "intent," courts have held that `It is a fundamental principle that a person is

presumed to intend the natural, reasonable and probable consequences of his voluntary acts.' "

State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302, (1990) quoting State v. Johnson, 56

Ohio St.2d 35, 39, 10 0:O.3d 78, 80-81, 381 N.E.2d 637, 640 (1978). If the voluntary act

exhibits an intent to injure, then a jury may reasonably make such a finding. A person is

"presumed to intend the natural, reasonable and probable consequences of his voluntary acts."

State v. Johnson (1978), 5 Ohio St.2d 35, 39. State v. Dixon, (May 13, 2004), Eighth Dist. App.

No. 82951, 2004 WL 1067527 ("Test for whether a defendant acted knowingly is a subiective

one, but it is decided on objective criteria; however, if a given result is probable, a person will be

' At best, "belief' only applies to the specific intent of substantial certainty/deliberateintent standard in R.C. §2745.01(A) and (B). The employer's "belief' is irrelevant under the`intent to injure' standard or subsection (C).

-20-

held to have acted knowingly to achieve it because one is charged by the law with knowledge of

the reasonable and probable consequences of his own acts.")(Emphasis added.) When the issue

in dispute is the employer's intent, it is necessary to rely upon circumstantial evidence because

intent cannot be proved by a third person's direct testimony, but must be gathered from the

surrounding facts and circumstances. State v. Lott (1990), 51 Ohio St.3d 160, 168. So it has

become in employer intentional tort cases.

The legislature has with subsection (C) adopted a unique test where "intent" may be

inferred from certain deliberate conduct of the employer. As required by the statute, the conduct,

actions and/or inactions of the employer must directly result in the injury, but intent to injure may

be proven (inferred) from the conduct, which need not be directed at the specific employee that is

ultimately injured. In contrast, deliberate intent is found where the employer's subjective state of

mind exhibits a direct purpose in causing harm. There is no question but that, as written, the

statute's subsection (C) retains an "inferred intent" component, arising from the actions of the

employer. R.C. §2745.01 (C).

The Court of Appeals, in its opinion, adopted a`reasonable employer' test that admittedly

failed to address the subjective intent or mind set of the specific employer - something R.C.

§2745.01 requires. Houdek agrees that a "reasonable employer" test runs counter to the statute.

At the same time, a court cannot grant summary judgment to an employer based merely upon self

serving assertions that the employer did not intend to injure the employee or that it was unaware

of the hazardous condition that resulted in injury. Weighing of this type of evidence necessitates

a trier of fact. In this case, Houdek put forth sufficient factual evidence and testimony to show

evidence of ThyssenKrupp's intent to injure him, evidence from which a jury could objectively

-21-

find subjective intent to injure by ThyssenKrupp. The decision of the court of appeals should be

affirmed.

Appellant's Proposition of Law No. III:There are no genuine issues of fact and Houdek cannot establish thatThyssenKrupp had specific intent to cause Houdek's injury.

ThyssenKrupp's last proposition of law is that Houdek cannot establish that it had the

specific intent to cause him injury. Irrespective of the reasoning of the Court of Appeals in

arriving at its conclusion, the Appellate Court reached the correct result. Again, this case was

improperly disposed of in the Trial Court on a motion for summary judgment. The Trial Court

held that Houdek could not show the "requisite intent" but was silent as to what the "requisite

intent" would have been. In order to prove an employer intentional tort, the employee must either

prove 1) intent to injure, or 2) that the employer committed the tortious act with the belief that

the injury was substantially certain to occur (acting with deliberate intent). In this case, Houdek

produced sufficient evidence to overcome summary judgment. The court of appeals, reviewing

the Civ.R. 56 evidence before it stated "[i]f the facts and circumstances of this case do not

present genuine issues of material facts as to the existence of an employer intentional tort, then

none shall." Houdek, at ¶38.

The Appellate Court observed:

{¶31 } By contrast, Houdek and the side-loading forklift operator acted inaccordance with a series of direct orders that resulted in Houdek's catastrophicworkplace injuries. Krupp's direct order placed Houdek in harm's way with nochance to avoid the oncoming sideloader. Perhaps, a twenty-year-old with thespeed, agility, and strength of a Force Recon Marine, Army Ranger, Navy Seal, orOlympic gymnast could have effected an escape from the oncoming sideloader.Houdek, however, as a middle-aged man whose mobility was limited by his priorphysical injury and by being directed by Krupp to work a scissors-lift, could not.

-22-

{¶32} The fingerprints of Krupps' specific directives were all over Houdek'sworkplace injuries. Whereas in Kaminski, the workplace injuries resulted in theabsence of any specific directives of [the] employer.

Id.

This Court stated in Byrd v. Faber, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47,

{¶11 } As the United States Supreme Court has observed, the Federal Rules ofCivil Procedure are "designed'to secure the just, speedy and inexpensivedetermination of every action.' Fed. Rule Civ. Proc. 1***. Rule 56 must beconstrued with due regard not only for the rights of persons asserting claims anddefenses that are adequately based in fact to have those claims and defenses triedto a jury, but also for the rights of persons opposing such claims and defenses todemonstrate in the manner provided by the Rule, prior to trial, that the claims anddefenses have no factual basis." Celotex Corp. v. Catrett (1986), 477 U.S. 317,

327, 106 S.Ct. 2548, 91 L.Ed.2d 265.

{¶12 Before ruling on a motion for summary judgment, the trial court's obligationis to read the evidence most favorably for the nonmoving party to see if there is a"genuine issue of material fact" to be resolved. Only if there is none does the courtthen decide whether the movant deserves judgment as a matter of law. Thematerial issues of each case are identified by substantive law. As the United StatesSupreme Court has explained, "[o]nly disputes over facts that might affect theoutcome of the suit under the governing law will properly preclude the entry ofsummary judgment." Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 248,

106 S.Ct. 2505, 91 L.Ed.2d 202.

"[O]n summary judgment the inferences to be drawn from the underlying facts contained in such

materials [depositions, affidavits and exhibits] must be viewed in the light most favorable to the

party opposing the motion." Williams v. First United Church of Christ, 37 Ohio St.2d 150, 152,

309 N.E.2d 124 (1974),citing United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d

176 (1962).

It is not the province of the trial court to either weigh the evidence before it or to accept

the moving party's interpretation of that evidence in toto. Lennon v. Neil, 139 Ohio App.3d 437,

-23-

442, 744 N.E.2d 228 (11`h Dist. 2000). Instead, the credibility of witnesses and evidence is a

matter to be left for the jury to decide. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984); see also, Perez v. Scripps-Howard Broadcasting Co., 35 Ohio St.3d

215, 218, 520 N.E.2d 198 (1988)(questions of credibility must be resolved in the nonmoving

party's favor); Allore v. Flower Hosp. 121 Ohio App.3d 229, 234, 699 N.E.2d 560 (6'h Dist.

1997) ([N]either the weight of the evidence nor the credibility of the witnesses is for the court's

determination in ruling on a motion for summary judgment.) At the trial court level, Houdek put

forth sufficient evidence to overcome summary judgment.

ThyssenKrupp would lay blame for Houdek's injury on George Krajacic, the operator of

the sideloader when it states that "Mr. Krajacic acknowledges that he forgot about Houdek's

presence in the aisle." See, Appellant's Brief at 17. ThyssenKrupp ignores that its management,

specifically warehouse manager Joe Matras, was warned by Krajacic days before this incident of

precisely this danger and mode of injury. It is the rare case where there is evidence of prior

warning and knowledge of management of the exact danger that ultimately befell the employee.

This is such a case. Despite Krajacic specifically requesting permission to move his picks from

occupied aisles to other times when employees would not be working in those aisles,

ThyssenKrupp denied his request and ordered that he pull the orders anyway. Matras told

Krajacic that employees would "get out of his way" although this was in reality an impossibility.

ThyssenKrupp knew that the sideloaders took up the entire aisles and that once they entered the

aisle, anyone in the aisle would be trapped. ThyssenKrupp directed the sideloader operators to

operate them at full speed, and Krajacic, following ThyssenKrupp's directives, testified that he

did so in order to keep up with incoming orders.

-24-

Although ThyssenKrupp had orange warning cones in its possession, it did not utilize

them (or any other type of warning device or barricade) to prevent sideloader operators from

entering the aisles where employees were working. There was nothing in the ThyssenKrupp

warehouse to remind a sideloader operator over the course of his or her shift about an aisle where

a pedestrian employee was working.

ThyssenKrupp also knew the dimensions of the aisles meant that there would be no

means of escape for an employee trapped in an aisle by a sideloader. ThyssenKrupp was aware

that Houdek had previously sustained a back injury and that he was working under light duty

restrictions. ThyssenKrupp knew that Houdek's back injury would affect his mobility.

ThyssenKrupp knew the lighting in Aisle A was dimmer than in other aisles and would make it

harder to see a pedestrian employee working in the aisle. Houdek was assigned to perform an

inventory re-tagging task that had him stationed in one aisle for a number of hours. Tbis was a

highly unusual circumstance and out of the normal work practice at ThyssenKrupp where

pedestrian employees would be in the aisle for short periods of time to pull product. In many

cases, the hand pulls were performed by the sideloader operators themselves. Hence, in those

cases the only pedestrians/employees in the aisle were the operators and there was no sideloader

being operated. Having an employee, such as Houdek, working in an open aisle and in close

proximity to the sideloaders for an extended period of time was an extremely dangerous

circumstance.

Conclusion

This incident, and Houdek's injury, was the result of much more than "an employee's

forgetfulness." It was the culmination of a number of specific and deliberate actions, inactions

-25-

and directives by ThyssenKrupp. It was the direct result of removing an equipment safety guard

by not utilizing warning cones ThyssenKrupp had in its possession. Taking into consideration

ThyssenKrupp's actions, inactions and specific directives, the trier of fact could find that

ThyssenKrupp acted either with "intent to injure" or "with the belief that the injury was

substantially certain to occur (that is, deliberate intent)." As such, the trial court erred in granting

ThyssenKrupp's motion for summary judgment, and the decision of the Eighth District Court of

Appeals should be affirmed.

'n -S. 'Y/anek (0959150)David R. Grant (0065436)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. stenhenvanekn_.fdslaw.com

davidarant@,fdslaw.comi'e ffrekfriedman(kfdslaw.com

Counselfor Appellee Bruce Houdek

Joseph A. Condeni (0030275)Stacey Walley (0082723)SMITHAND CONDENI LLP600 E. Granger Road, Second FloorCleveland, Ohio 44131t. 216.771.1760 f. 216.771.3387e. Joe e smith-condeni.com

Counsel for Appellee Bruce Houdek

CERTIFICATE OF SERVICE

A copy of the foregoing was served via regular U.S. Mail this 20"day of April, 2012

upon:

Gregory G. Guice, Esq.Clifford Masch, Esq.Reminger Co., LPA1400 Midland Bldg.101 Prospect Avenue, WestCleveland, Ohio 44115

Counselfor Appellee ThyssenKruppMaterials NA, Inc.

Benjamin C. Sasse, Esq.Tucker Ellis, LLP925 Euclid Avenue, Suite 1150Cleveland, Ohio 44115-1141

Counsel,for Amicus Curiae OhioAssociation of Civil Trial Attorneys

Natalie Tackett-Eby, Esq.Lee M. Smith, Esq.Lee M. Smith & Assoc., Co., L.P.A.929 Harrison AvenueSuite 300Columbus, Ohio 43215

Counselfor Ohio Bureauof Workers Compensation

orne^ fof App^l e] 'e BrucHoudek