Francis E. Sweeney, Sr., J.
In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, this court first recognized an intentional tort exception to the workers’ compensation exclusivity doctrine by allowing employees to bring an intentional tort lawsuit against their employers. We later defined the term “intentional tort” in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. Adopting 1 Restatement of the Law 2d, Torts (1965), Section 8A and Prosser & Keeton, Law of Torts (5 Ed.1984) 36, Section 8, we stated that an intentional tort is “an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.”2 Jones at paragraph one of the syllabus.
In subsequent decisions, we focused on what proof is necessary to establish intent on the part of an employer. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, we held that the proof required to establish an intentional tort must be beyond that required to prove negligence or recklessness. Id. at paragraph six of the syllabus. We set forth a three-part test an employee must satisfy in order to prevail against his or her employer for an intentional tort. Id. at paragraph five of the syllabus. This test was modified in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, where we held that the employee must prove “(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.” Id. at paragraph one [485]*485of the syllabus.3 At issue in this case is the third prong of the Fyffe test, and whether the entry of summary judgment was proper.
Civ.R. 56(C) provides for the granting of summary judgment when “(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In deciding whether there exists a genuine issue of fact, the evidence must be viewed in the nonmovant’s favor. Civ.R. 56(C). Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1127.
In the context of an intentional tort allegedly committed by an employer, we have previously held that to overcome a motion for summary judgment, an employee alleging an intentional tort must set forth specific facts to raise a genuine issue of fact that the employer committed an intentional tort. Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraph seven of the syllabus. Proof of the three elements of an employer intentional tort may be made by direct or circumstantial evidence. Adams v. Aluchem, Inc. (1992), 78 Ohio App.3d 261, 264, 604 N.E.2d 254, 256. With these principles in mind, we now must determine whether summary judgment was appropriate.
In granting summary judgment, the trial court relied upon the deposition testimony of Killen Station rescue squad member Gary Nibert and former plant manager Fred Southworth. Both men testified that the Killen Station rescue squad was composed of volunteers and that the decision to perform a rescue was a voluntary one. Additionally, Nibert testified that members of the Killen Station squad were not expected to do anything they chose not to do. Based upon this evidence, the court held that the rescue by the decedent was purely voluntary and there was no showing of an intentional tort.
DP & L likewise emphasizes that the evidence shows that the Killen Station rescue team is purely autonomous, in that it operates without management influence and interference. Since there was no evidence presented to show [486]*486anything other than a voluntary rescue attempt made by the decedent, DP & L argues, summary judgment was proper. We disagree. Although the rescue team is autonomous in certain respects and membership on the squad is voluntary, we cannot say as a matter of law that the decision to make the rescue attempt in this case was strictly voluntary, without any direction by management. Even though there was evidence presented regarding the voluntary nature of the rescue attempt, we find that there was also evidence presented to the contrary.
Since DP & L created the Killen Station rescue team, management at DP & L has been involved in many facets of the squad’s operation. For instance, training of the rescue squad is paid for by DP & L and is considered to be part of the employee’s job. Training is conducted on DP & L premises during work hours, and members continue to receive their pay during training sessions. Management also has the ultimate authority to approve or reject training sessions. Additionally, management personnel at DP & L also order and pay for all rescue squad equipment and DP & L owns and operates an ambulance, which the rescue squad uses. Furthermore, DP & L policy requires that all rescue squad drills be coordinated through the station manager and shift supervisor. Thus, this evidence refutes DP & L’s assertion that the rescue team operates independently of management.
We find that genuine issues of material fact exist under the third prong of Fyffe, which DP & L concedes is the focus of this appeal. Under the third prong of this test, the employer, with knowledge of a dangerous condition and of a substantial certainty of harm, must have required the employee to perform a dangerous task. We find that appellant has presented sufficient evidence to generate a triable issue whether the employer had this knowledge yet required the decedent to perform the vertical rescue.
There was evidence that the elevator inside the smokestack had malfunctioned previously, yet the rescue team had never been trained on how to respond to this type of emergency. There was further evidence that DP & L was aware that the rescue team had minimal training in vertical rescues.
Free access — add to your briefcase to read the full text and ask questions with AI
Francis E. Sweeney, Sr., J.
In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, 23 O.O.3d 504, 433 N.E.2d 572, this court first recognized an intentional tort exception to the workers’ compensation exclusivity doctrine by allowing employees to bring an intentional tort lawsuit against their employers. We later defined the term “intentional tort” in Jones v. VIP Dev. Co. (1984), 15 Ohio St.3d 90, 15 OBR 246, 472 N.E.2d 1046. Adopting 1 Restatement of the Law 2d, Torts (1965), Section 8A and Prosser & Keeton, Law of Torts (5 Ed.1984) 36, Section 8, we stated that an intentional tort is “an act committed with the intent to injure another, or committed with the belief that such injury is substantially certain to occur.”2 Jones at paragraph one of the syllabus.
In subsequent decisions, we focused on what proof is necessary to establish intent on the part of an employer. In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, we held that the proof required to establish an intentional tort must be beyond that required to prove negligence or recklessness. Id. at paragraph six of the syllabus. We set forth a three-part test an employee must satisfy in order to prevail against his or her employer for an intentional tort. Id. at paragraph five of the syllabus. This test was modified in Fyffe v. Jeno’s, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, where we held that the employee must prove “(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task.” Id. at paragraph one [485]*485of the syllabus.3 At issue in this case is the third prong of the Fyffe test, and whether the entry of summary judgment was proper.
Civ.R. 56(C) provides for the granting of summary judgment when “(1) [n]o genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.” Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274. In deciding whether there exists a genuine issue of fact, the evidence must be viewed in the nonmovant’s favor. Civ.R. 56(C). Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the party opposing the motion. Turner v. Turner (1993), 67 Ohio St.3d 337, 341, 617 N.E.2d 1123, 1127.
In the context of an intentional tort allegedly committed by an employer, we have previously held that to overcome a motion for summary judgment, an employee alleging an intentional tort must set forth specific facts to raise a genuine issue of fact that the employer committed an intentional tort. Van Fossen, 36 Ohio St.3d 100, 522 N.E.2d 489, at paragraph seven of the syllabus. Proof of the three elements of an employer intentional tort may be made by direct or circumstantial evidence. Adams v. Aluchem, Inc. (1992), 78 Ohio App.3d 261, 264, 604 N.E.2d 254, 256. With these principles in mind, we now must determine whether summary judgment was appropriate.
In granting summary judgment, the trial court relied upon the deposition testimony of Killen Station rescue squad member Gary Nibert and former plant manager Fred Southworth. Both men testified that the Killen Station rescue squad was composed of volunteers and that the decision to perform a rescue was a voluntary one. Additionally, Nibert testified that members of the Killen Station squad were not expected to do anything they chose not to do. Based upon this evidence, the court held that the rescue by the decedent was purely voluntary and there was no showing of an intentional tort.
DP & L likewise emphasizes that the evidence shows that the Killen Station rescue team is purely autonomous, in that it operates without management influence and interference. Since there was no evidence presented to show [486]*486anything other than a voluntary rescue attempt made by the decedent, DP & L argues, summary judgment was proper. We disagree. Although the rescue team is autonomous in certain respects and membership on the squad is voluntary, we cannot say as a matter of law that the decision to make the rescue attempt in this case was strictly voluntary, without any direction by management. Even though there was evidence presented regarding the voluntary nature of the rescue attempt, we find that there was also evidence presented to the contrary.
Since DP & L created the Killen Station rescue team, management at DP & L has been involved in many facets of the squad’s operation. For instance, training of the rescue squad is paid for by DP & L and is considered to be part of the employee’s job. Training is conducted on DP & L premises during work hours, and members continue to receive their pay during training sessions. Management also has the ultimate authority to approve or reject training sessions. Additionally, management personnel at DP & L also order and pay for all rescue squad equipment and DP & L owns and operates an ambulance, which the rescue squad uses. Furthermore, DP & L policy requires that all rescue squad drills be coordinated through the station manager and shift supervisor. Thus, this evidence refutes DP & L’s assertion that the rescue team operates independently of management.
We find that genuine issues of material fact exist under the third prong of Fyffe, which DP & L concedes is the focus of this appeal. Under the third prong of this test, the employer, with knowledge of a dangerous condition and of a substantial certainty of harm, must have required the employee to perform a dangerous task. We find that appellant has presented sufficient evidence to generate a triable issue whether the employer had this knowledge yet required the decedent to perform the vertical rescue.
There was evidence that the elevator inside the smokestack had malfunctioned previously, yet the rescue team had never been trained on how to respond to this type of emergency. There was further evidence that DP & L was aware that the rescue team had minimal training in vertical rescues. In fact, rescue team members received no training at platform levels inside the stack or at any level over one hundred feet. Nor had the squad ever attempted a vertical rescue before. In a letter to DP & L management dated two years before his accident, the decedent had, at one time, resigned from the rescue squad, protesting that the squad’s training was inadequate. Even though DP & L had been advised that additional training was necessary, there is evidence that DP & L did not authorize any additional vertical training. Given these circumstances, we find that reasonable minds could conclude that DP & L was aware of a dangerous condition that created a substantial certainty of harm.
[487]*487Additionally, sufficient evidence was presented to create an issue of fact whether DP & L required the decedent to perform the rescue. DP & L contends that this requirement is not satisfied because DP & L never ordered the decedent to climb up the ladder to rescue the stranded men. However, under the third element of Fyffe, DP & L did not have to expressly order the decedent to make the rescue. Instead, to overcome a motion for summary judgment, an opposing party can satisfy this requirement by presenting evidence that raises an inference that the employer, through its actions and policies, required the decedent to engage in that dangerous task. Here, former plant manager Fred Southworth testified that DP & L expected the rescue squad to respond to an emergency, and to do so in a safe manner. Thus, when DP & L sounded the alarm and summoned its own rescue squad into action, reasonable minds could differ as to whether DP & L required the squad to make the rescue.
We are unwilling to conclude that, as a matter of law, the decedent, in attempting the rescue, did so purely as a volunteer. Obviously, DP & L formed the rescue squad primarily for its own benefit, to provide on-site personnel to respond to plant emergencies. DP & L paid for the squad’s training and equipment, and arranged for members to train on company time. Under these circumstances, and based upon the evidence presented, we hold that questions of fact remain as to whether DP & L did act to require the decedent to make the rescue attempt in question. Since sufficient evidence was presented to overcome DP & L’s motion for summary judgment, we find that the trial court erred in granting summary judgment for DP & L.
Accordingly, the judgment of the court of appeals is reversed, and this cause is remanded to the trial court for further proceedings consistent with this decision.
Judgment reversed and cause remanded.
Douglas, Resnick and Pfeifer, JJ., concur.
Moyer, C.J., Cook and Lundberg Stratton, JJ., dissent.