Bishop v. Dayton

1 Ohio App. Unrep. 71

• Court: Ohio Court of Appeals
• Decided: February 5, 1990
• Docket: Case No. 11634
• Status: Published

Opinions

WILSON, J.

The appellee, City of Dayton, operates a municipal garage for the maintenance and repair of Dayton vehicles and equipment. The four principal plaintiffs are garage employees. They aver that they suffered an injury, disease, or condition when they were subjected to high levels of carbon monoxide or dioxide during the course of their employment because of Dayton's failure to provide and properly maintain equipment designed to control carbon gas levels. In their complaint, they have prayed for damages on the legal concept of intentional tort.

The plaintiffs have appealed from the order granting summary judgment in favor of Dayton. There is one assignment of error:

THE TRIAL COURT INCORRECTLY GRANTED APPELLEES' MOTION FOR SUMMARY JUDGMENT, WHEN PURSUANT TO O.R.C. 4121.80, THE APPLICABLE CASE LAW, AND THE FACTS OF THE CASE, GENUINE ISSUES OF FACT EXIST REGARDING THE INTENTIONAL TORT COMMITTED BY THE APPELLEE.

Dayton's summary judgment motion was supported by the depositions of three of the plaintiffs and the affidavit of the Dayton employee who is responsible for the daily operation of the garage. Boiled down, the affidavit in effect states that Dayton did not specifically desire to injure the plaintiffs and that Dayton did not know that an injury to plaintiffs was certain or substantially certain to result from Dayton's acts.

Plaintiffs filed the affidavits of two of the plaintiffs contra the motion. The first affidavit provides:

Daniel T. Bishop, being first duly cautioned, sworn and deposed, does hereby state:

1) That Affiant is an adult over the age of eighteen (18), has personal knowledge of the facts hereinafter set .forth and is competent to testify to same;

2) That Affiant was employed by the City of Dayton in approximately 1970, to work in the garage located in Ottawa Street, Dayton, Ohio;

3) That at the time of Affiants employment the air exchangers in the garage were not operational and remained that way for a number of years;

4) That from the mid 1970's until 1985 the exhaust fans in the roof did not work, and were not repaired by the City of Dayton; 5) That in 1976 the city installed Carbon Monoxide Monitors in the garage, but, starting only a few weeks after their installation the supervisor on duty, or an employee at the direction of the supervisor would unplug the monitor when it went off. This pattern of behavior continued until April 1986 when the monitors were removed from the garage altogether;

6) In 1977, to conserve energy, the City instituted a closed door policy at the garage which required that the doors to the garage remained closed in wintertime despite the operation of motor vehicles in the garage;

7) Because of the lack of ventilation in the garage by inoperable fans, closed doors, the running of vehicles, use of aerosol sprays and other items, Affiant was required to work through the years in an environment polluted with heavy fumes. Affiant has observed others pass out from the fumes;

8) Over the years the preceding conditions were reported to various individuals in City Management including, but not limited to Foreman Doug Snell, Bob Hudson, Bob Hildebrand and Superintendents Bill Back, Jim Dinneen and Bob Grigsby;

9) Despite these notifications the monitor continued to be deactivated, the fans remained frozen until 1985 and the air exchanges remained insufficient to remove the fumes;

FURTHER AFFIANT SAYETH NAUGHT.

The second affidavit is identical to the first except for the name of the affiants and the year each began working for the city.

"In order to establish an intentional tort, a plaintiff must show proof beyond that required to establish negligence and beyond that required to establish recklessness. When the employer acts despite the knowledge of some risk, the employer's conduct may be negligent.

When the risk is great and the probability increases that certain consequences may follow, the employer's conduct may be reckless. As the probability that certain consequences will follow further increases and the employer knows that injury to-employees is certain, or substantially certain, to result from his act, and he still proceeds, he is treated by the law as if he had in fact desired to produce the result Mere knowledge and appreciation of a risk, however, falls short of substantial certainty and does not by itself establish intent." Mitchell v. Lawson Milk Co. (1988), 40 Ohio St. 3d 190.

The Mitchell case and other recent intentional tort cases have made it easier for employers to successfully file motions to dismiss for failing to state a claim and motions for summary judgment.

Mitchell v. Lawson held that a Civ. R. 12(BX6) motion by an employer in an intentional tort case will be sustained unless the complaint alleges facts that the employer "(1) specifically desired to injure the employee; or (2) knew that an injury to an employee was certain or substantially certain to result from the employer's act and, déspite this knowledge, still proceeded. (Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489; Pariseau v. Wedge Products, Inc. (1988), 36 Ohio St. 3d 124, 522 N.E. 2d 511; and Kunkler v. Goodyear Tire and Rubber Co. (1988). 36 Ohio St. 3d 135, 522 N.E. 2d 477, construed.)"

Van Fossen v. Babcock reaffirmed the summary judgment requirement that the moving party has the burden of establishing that the material facts are not in dispute, and that no genuine issue of fact exists.

This case also held that "in an action by an employee against his employer alleging intentional tort, upon motion for summary judgment by the defendant employer, the plaintiff employee must set forth specific facts which show that there is a genuine issue of whether the employer had committed an intentional tort against his employee."

The evidentiary materials filed in the summary judgment proceeding in this case indicate that negligence and recklessness on the part of Dayton are facts which are in dispute. However, in view of recent case law, these disputed facts are not material.

We agree with the trial court that the plaintiffs have failed to show the requisite intent for the existence of an intentional tort; Le. that harm to the employee will be a substantial certainty and not just a high risk.

We arrive at the same conclusion by applying Ohio's intentional tort claims act, R.C. 4121.80. This section became effective August 22, 1986.

Subsection (GXD of this section provides:

"as used in this section:

(1) 'Intentional tort' is an act committed with intent to injure another or committed with the belief that the injury is substantially certain to occur.

Deliberate removal by the employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance is evidence, the presumption of which may rebutted, of an act committed with intent to injure another if injury or occupational disease or condition occurs as a direct result.

'Substantially certain' means that an employer acts with deliberate intent to cause an employee to suffer injury, disease, condition, or death."

In our view the facts set forth in the two affidavits do not establish the statutory rebuttable presumption set forth above.

We affirm.

BROGAN, J., and GRADY, J., concur.