Hunter v. Cole Tool & Die Co.

2023 Ohio 2131, 219 N.E.3d 993

• Court: Ohio Court of Appeals
• Decided: June 27, 2023
• Docket: 2022 CA 0059
• Status: Published

Opinion

[Cite as Hunter v. Cole Tool & Die Co., 2023-Ohio-2131.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

ROGER HUNTER : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellant : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : COLE TOOL & DIE COMPANY, ET AL. : Case No. 2022 CA 0059 : Defendants-Appellees : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2021 CV 0223

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 27, 2023

APPEARANCES:

For Plaintiff-Appellant For Defendants-Appellees

KEVIN J. BOISSONEAULT WILLIAM R. CREEDON JONATHAN M. ASHTON MATTHEW D. GURBACH 1450 Arrowhead Drive 100 South Third Street Maumee, OH 43537 Columbus, OH 43215

JENNIFER R. HARMON 3 North Main Street Suite 708 Mansfield, OH 44902 King, J.

{¶ 1} Plaintiff-Appellant, Roger Hunter, appeals the July 29, 2022 order of the

Court of Common Pleas of Richland County, Ohio, granting summary judgment to

Defendants-Appellees, Cole Tool & Die Company and Cole Tooling & Stamping. We

affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Hunter worked for appellees as a transfer operator on an 800-ton Verson

press used to stamp metal blanks into parts. The large press is operated by five

employees stationed around the press; four employees, one at each station, place and

remove metal parts and one employee operates the press controls. Once the employees

place the metal blanks in the machine, they step back behind a vertical "light curtain" and

the control operator proceeds. The light curtain sends down a continuous beam of light.

Here there is no dispute between the parties that it acts as a safety guard, designed to

kill electrical power to the press if any part of the beam is broken by an employee. If an

employee walks through it, the press would immediately stop. After the blanks are

stamped, the employees return and transfer the parts to the next station to be stamped

again. Occasionally, the press creates imperfections on the metal parts known as burrs

which need to be removed by hand.

{¶ 3} On August 5, 2014, Hunter was standing at the rear of the machine with the

control operator in the front. The press was producing too many burrs, so maintenance

was called. The press could not be fixed and continued to produce burrs. After Hunter

transferred a stamped part from station one to station two, he reached into station two

with his right hand to remove a burr when the press was activated, sucked his arm in, and

crushed his hand. It appeared to do this despite the installation of the light curtain. {¶ 4} Based on his work-related injuries, Hunter requested and received workers'

compensation benefits from the state of Ohio.

{¶ 5} On August 4, 2016, Hunter filed a complaint against appellees claiming an

employer intentional tort. Hunter voluntarily dismissed his complaint without prejudice on

January 4, 2018.

{¶ 6} On January 3, 2019, Hunter refiled his intentional tort complaint against

appellees. The parties filed a stipulated notice of voluntary dismissal without prejudice

on April 19, 2021.

{¶ 7} On May 10, 2021, Hunter refiled his intentional tort complaint against

appellees. On June 1, 2022, appellees filed a motion for summary judgment, arguing

there was no evidence that they specifically and/or deliberately intended to harm Hunter.

By order filed July 29, 2022, the trial court agreed and granted the motion.1

{¶ 8} Hunter filed an appeal with the following assignment of error:

I

{¶ 9} "THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

JUDGMENT IN FAVOR OF COLE TOOL & DIE CO."

{¶ 10} In his sole assignment of error, Hunter claims the trial court erred in granting

summary judgment to appellees. We disagree.

{¶ 11} Summary judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Regarding summary judgment, the Supreme Court stated the following in State

ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):

1Two John Doe defendants were also included in the judgment, but as noted by the trial court, were never identified nor served in the case. Civ.R. 56(C) provides that before summary judgment may be

granted, it must be determined that (1) no genuine issue as to any material

fact remains to be litigated, (2) the moving party is entitled to judgment as

a matter of law, and (3) it appears from the evidence that reasonable minds

can come to but one conclusion, and viewing such evidence most strongly

in favor of the nonmoving party, that conclusion is adverse to the party

against whom the motion for summary judgment is made. State ex. rel.

Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379,

citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d

466, 472, 364 N.E.2d 267, 274.

{¶ 12} As an appellate court reviewing summary judgment motions, we must stand

in place of the trial court and review summary judgments on the same standard and

evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506

N.E.2d 212 (1987).

{¶ 13} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No.

15CA56, 2015-Ohio-4444, ¶ 13:

It is well established the party seeking summary judgment bears the

burden of demonstrating that no issues of material fact exist for trial.

Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The standard for granting summary judgment is

delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293: " * * * a party seeking summary judgment, on the ground that the nonmoving party cannot

prove its case, bears the initial burden of informing the trial court of the basis

for the motion, and identifying those portions of the record that demonstrate

the absence of a genuine issue of material fact on the essential element(s)

of the nonmoving party's claims. The moving party cannot discharge its

initial burden under Civ.R. 56 simply by making a conclusory assertion the

nonmoving party has no evidence to prove its case. Rather, the moving

party must be able to specifically point to some evidence of the type listed

in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has

no evidence to support the nonmoving party's claims. If the moving party

fails to satisfy its initial burden, the motion for summary judgment must be

denied. However, if the moving party has satisfied its initial burden, the

nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to

set forth specific facts showing there is a genuine issue for trial and, if the

nonmovant does not so respond, summary judgment, if appropriate, shall

be entered against the nonmoving party." The record on summary

judgment must be viewed in the light most favorable to the opposing party.

Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150.

{¶ 14} Hunter argues that his employer is liable for his injury under R.C.

2745.01(A) and (C).

{¶ 15} Section (A) creates liability only when "the employer committed the tortious

act with the intent to injure another or with the belief that the injury was substantially

certain to occur." Although this version of the statute is written in the disjunctive, a plaintiff can prevail only if "the employer acted with the intent to cause injury." Kaminski v. Metal

& Wire Products Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 55.

Section (C) creates a rebuttable presumption that the removal of an "equipment safety

guard" was "committed with intent to injure another." For the reasons explained below,

both of Hunter's claims fail.

{¶ 16} This court has examined the history of intentional tort law in Ohio and

analyzed R.C. 2745.01, Ohio's intentional tort law. Ball v. MPW Industrial Services, Inc.,

2016-Ohio-5744, 60 N.E.3d 1279, ¶ 30-32 (5th Dist.); Breitenbach v. Double Z

Construction Co., 2016-Ohio-1272, 63 N.E.3d 498, ¶27-35 (5th Dist.). In Ball, this court

held that subsequent to the legislative change, either part of Section (A) requires a plaintiff

to demonstrate that the employer acted with specific intent to injure. Id. at ¶ 34. This

court also established that the questioned conduct must be beyond negligence,

recklessness, and wantonness. Id.

{¶ 17} Hunter cites to a Sixth District case, Cantu v. Irondale Industrial Contractors,

Inc., 6th Dist. Fulton No. F-11-018, 2012-Ohio-6057, to sustain his argument that his

employer had the requisite intent under R.C. 2745.01(A). But the Ball court already

examined the Cantu case and noted the following at ¶ 36:

In Cantu, the court distinguished between motive and intent, stating

that the word "intent" is used to "denote that the actor desires to cause the

consequences of his act, or that he believes that the consequences are

substantially certain to occur or result from it." The Cantu court further

stated that "[w]hen the legislature redefined 'substantially certain' to mean

'deliberate intent,' the only thing added to this equivalency was the adjective 'deliberate,' meaning 'to carefully consider * * * characterized by awareness

of the consequences.' " (Citations omitted.)

{¶ 18} Ultimately, the Ball court specifically declined to follow Cantu, and held

"R.C. 2745.01 requires the employee to show the employer had a deliberate intent to

injure, not that an injury was substantially certain to occur." Ball at ¶ 38. The Sixth District

recently revisited its decision in Cantu and also declined to follow it. King v. Buildtech

Ltd. Construction Development, 6th Dist. Lucas No. L-22-1088, 2023-Ohio-1092, ¶ 47.

{¶ 19} Moreover, five months prior to Ball, the Breitenbach court held: "Simply

stated, R.C. § 2745.01 requires specific or deliberate intent to cause injury in order to

recover on an employer intentional tort claim. R.C. § 2745.01(C) establishes a rebuttable

presumption that the employer intended to injure the worker if the employer deliberately

removes a safety guard." (Citation omitted.) Breitenbach at ¶ 35.

{¶ 20} Consistent with the Supreme Court's and this court's precedent, Hunter

must establish under section (A) that the employer acted with intent to injure. The trial

court had before it the deposition testimony of Hunter with twenty-one exhibits and the

deposition testimony of Aaron Snyder, a maintenance technician for appellees, with one

exhibit consisting of pictures of the press. In his summary judgment brief, Hunter cited to

the depositions of a W. Shepherd and a C. Ritchie, but neither deposition is listed on the

docket as being filed; the trial court did not cite to either in its order.

{¶ 21} By order filed July 29, 2022, the trial court granted appellees' motion for

summary judgment, concluding: Construing the evidence most strongly in favor of Plaintiff, the Court

finds that reasonable minds can come to but one conclusion and that

conclusion is adverse to Plaintiff on his claim that the Defendants committed

any tortious act with the intent to injure the Plaintiff, that the Defendants

committed an act with the deliberate intent that the Plaintiff be injured, or

that the Defendants deliberately removed any safety guard on the Verson

Press.

{¶ 22} In reaching this conclusion, the trial court found Hunter did not present any

evidence that 1) the light curtain was malfunctioning; 2) there were any issues with the

light curtain on the day of the incident; 3) there was truly an issue with the condition of

the light curtain or that appellees were aware of any issues with the placement of the light

curtain; 4) appellees were aware of the burr issue or the supervisor instructed the workers

to reach in and remove the burrs; 5) appellees had any intent to cause harm to him or

any of its employees; 6) appellees pushed employees to work and produce faster than

what was safe; 7) appellees disabled safety devices or encouraged employees to bypass,

work around, or disable safety devices; 8) the safety devices present were malfunctioning

or poorly maintained; and 9) there were any injuries prior to his injury that would have

alerted appellees to any safety issues.

{¶ 23} We concur with the trial court's analysis that there is an absence of evidence

that would permit Hunter to resist summary judgment in favor of his employer. To the

contrary, reasonable minds could only conclude that summary judgment was appropriate

in favor of the employer. {¶ 24} Hunter's claim under section (C) likewise fails. During the summary

judgment stage, Hunter argued appellees instructed him to work on the press "despite

knowing that the safety guard [light curtain] was inoperative." Plaintiff's June 29, 2022

Memorandum in Opposition at 1. Appellees "had actual knowledge of the defect of the

safety guard" and still ordered employees to work on the press. Id. at 1-2. Appellees

knew the light curtain "was defective and effectively had been removed and nevertheless

continued to order" the employees to use the press. Id. at 2.

{¶ 25} In his appellate brief, Hunter argues it somewhat differently. He claims

appellees knew the light curtain ("equipment safety guard") did not function properly

because "it did not always work and needed maintenance" and its positioning enabled

employees to work inside the light curtain. Appellant's Brief at 1. Hunter argues the light

curtain "was both malfunctioning and misplaced" and therefore appellees were "gambling

with its employees' limbs." Id. at 2. Contrary to this assertion, there was evidence in the

record that the light curtain was functioning before and after the incident.

{¶ 26} Maintenance technician Snyder testified following the incident, the area was

"quarantined and locked down * * * to make sure nothing got disturbed." Snyder depo. at

15.2 Immediately following the incident, Snyder tested the light curtain and it was

functioning properly. Id. at 21-31, 41. Snyder opined Hunter's injury occurred when he

was standing in between "the safe zone of the light curtains and the front of the press."

Id. at 37. Snyder was not present when the incident occurred; he did not witness it. Id.

at 14, 41. Snyder testified to the following (Id. at 42-43):

2We note the Snyder deposition transcript is devoid of page numbers; we have tried our best to cite to the correct page. Q. Are you aware of any individuals indicating that the machine

would cycle even though people were in the light curtains prior to this

incident?

A. Yes.

Q. Tell me about that.

A. When people would complain about the light curtains being where

they were at, they would say well, look. I can get this close and you can still

hit it.

Q. Who would complain about that?

A. The operator. Well, the operators would do it as a - - well, it's kind

of hearsay. The operators would just do it and not complain about it, but

laugh about it.

Q. But they would tell you that they could get in between the light

curtain - -

A. They could fit between the light curtain.

Q. And the - -

A. And the ram.

Q. And the ram prior to this incident involving Roger Hunter?

A. On all presses.

Q. On all presses, including the press that Roger Hunter was injured

on, correct?

A. Correct. {¶ 27} Snyder stated he told the employees they needed to be outside the light

curtain while the press was running. Id. at 43. He did not think a new light curtain was

needed; but he did not think it was safe for an employee to get in between the light curtain

and the press, "[t]hat's why I instructed people not to go and play that game." Id. at 43-

44. Snyder also told his boss, Bill Shepherd. Id. at 55. There is no evidence in the record

to indicate if Shepherd was management or if Shepherd notified management. Snyder

was upset about the operators getting in between the light curtain and the press

"[b]ecause they were doing something that they could get hurt with and they knew it and

it was a game to them." Id. It was just his thought that it was a game to them. Id. Snyder

did not testify that the light curtain was improperly positioned or that it had been moved

or disabled prior to the incident.

{¶ 28} In Hewitt v. L.E. Myers Co., 134 Ohio St. 3d 199, 2012-Ohio-5317, 981

N.E.2d 795, the Supreme Court addressed what "deliberate removal" under section (C)

means. The Supreme Court rejected that it encompasses situations where the employer

disables, bypasses, or fails to train employees on the guard. Id. at ¶ 29. Instead, the

Supreme Court held there must be a "deliberate decision to lift, push aside, take off, or

otherwise eliminate that guard from the machine." Id. at ¶ 30. Thus, Hunter must

demonstrate there was a deliberate decision to physically remove the light curtain.

{¶ 29} Instead, Hunter's testimony supports the conclusion that summary

judgment was proper here. Hunter was aware that OSHA did not cite appellees for any

violations regarding the position of the light curtain on the press. November 21, 2017

Hunter depo. at 67. Hunter did not have any information that the light curtain was placed

in an improper location. Id. Right after the incident, Hunter claimed he was blocking the

beam from the light curtain, and Dave Harmon, the president of the company, claimed Hunter was inside the beam between the light curtain and the press. Id. at 114-115.

During his deposition, when asked why did the injury occur, Hunter responded, "I have

no idea." Id. at 142. When asked if he could "remember with that press or any other,

ever being able to get behind the light curtain between the light curtain and the press and

have it operate," Hunter stated, "I have no knowledge." Id.

{¶ 30} Hunter gave written statements seven and ten months after the incident and

indicated "[e]ven though my body broke the beam of the light curtain, the press cycled

and the top die came down on my right hand." Defendant's Deposition Exhibits 8 and 9.

Over three years after the incident, although Hunter had previously claimed he was turned

sideways to break the beam, he now asserts he was actually between the light curtain

and the press because of Harmon's statement. It is this statement that Hunter relies on

to assert appellees deliberately and intentionally injured him: "management knew that the

beams, the light curtains were too far away from the dies, you could be inside of it and

they chose to do nothing about it." November 14, 2017 Hunter depo. at 128-129.

{¶ 31} Hunter had alleged that the light curtain malfunctioned or the light curtain

was placed in a way that he was able to be between the light curtain and the press.

Hunter does not know how the incident occurred. He has not presented any evidence

that the light curtain malfunctioned other than his inconsistent guesswork. Nor has Hunter

demonstrated that the safety guard was physically removed, nor does he claim the light

curtain was intentionally disabled. In fact, he never alleged appellees removed any

guards on the press. This testimony, by itself or in conjunction with Synder's testimony,

is insufficient to demonstrate that the employer deliberately and physically removed the

light curtain. Accordingly, summary judgement in favor of the employer was appropriate. {¶ 32} Hunter also appears to argue that when an employer knows employees are

bypassing the equipment safety guard, that knowledge constitutes a deliberate removal.

We disagree.

{¶ 33} Hunter testified management was reckless because his supervisor knew

Hunter could be in between the light curtain and the press and did nothing about it.

November 14, 2017 Hunter depo. at 92, 96. Hunter acknowledged when an employee is

outside the light curtain and steps forward toward the press, the press stops; if an

employee goes further toward the press and is now completely in front of the light beam,

the press could not operate again because "you have to recycle it." Id. at 99. He never

told anybody that the light curtain was "too far back" from the press. Id. at 127.

{¶ 34} Hunter also opined appellees intentionally intended to injure him because

"management knew that the beams, the light curtains were too far away from the dies,

you could be inside of it and they chose to do nothing about it." Id. at 128-129. By

management, Hunter meant Harmon. November 21, 2017 Hunter depo. at 113. Hunter

did not testify to any animosity or problems with management. November 14, 2017

Hunter depo. at 129. Hunter agreed no one at work ever threatened him, expressed

hostility toward him, or had any reason to hurt him. November 21, 2017 Hunter depo. at

105.

{¶ 35} Irrespective of whether Harmon knew about employees bypassing the

safety guard, Hewitt makes it clear this knowledge, combined with a failure to act, does

not fall within in the scope of section (C), i.e., the employer deliberately intended to

remove an equipment safety guard. Likewise, he has failed to produce sufficient evidence

that his employer deliberately intended to injure him. Thus, Hunter has not met his reciprocal burden to set forth specific facts showing there is a genuine issue for trial on

his intentional tort claim under R.C. 2745.01.

{¶ 36} Upon review, we find the trial court did not err in granting summary judgment

to appellees.

{¶ 37} The sole assignment of error is denied.

{¶ 38} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By King, J.

Gwin, P.J. and

Hoffman, J. concur.