[Cite as Rivers v. Otis Elevator, 2013-Ohio-3917.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99365
DOROTHY RIVERS, ET AL. PLAINTIFFS-APPELLANTS
vs.
OTIS ELEVATOR, ET AL.
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-747945
BEFORE: E.T. Gallagher, J., Keough, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 12, 2013 ATTORNEYS FOR APPELLANTS
Bruce D. Taubman Brian Taubman Taubman Law 55 Public Square Suite 1670 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
William H. Falin Seamus J. McMahon Moscarino & Treu, L.L.P. The Hanna Building 1422 Euclid Avenue, Suite 630 Cleveland, Ohio 44115 EILEEN T. GALLAGHER, J.:
{¶1} Plaintiffs-appellants, Dorothy (“Dorothy”) and Thomas (“Thomas”) Rivers
(collectively referred to as “appellants”), appeal from a summary judgment granted in
favor of defendant-appellee Marymount Hospital (“Marymount”). We find no merit to
the appeal and affirm.
{¶2} Appellants filed suit to recover damages they sustained when Dorothy tripped
and fell while stepping onto elevator number six (“the elevator”) at Marymount, where
Dorothy was employed as a housekeeper. On the day of the incident, Dorothy came to
work as usual and punched the time clock at 7:00 a.m. to begin her shift. At 9:45 a.m.,
Dorothy pushed a hallway button to call for an elevator to go from the fourth floor to the
first floor cafeteria for her 15 minute break. As Dorothy began to enter the elevator, she
tripped and fell into the elevator and sustained injuries to her hand, knee, and neck.
Dorothy testified at deposition that after she fell, she noticed that the bottom of the
elevator was not level with the floor.
{¶3} Dorothy pursued a workers’ compensation claim for her injuries. She
completed and signed an Ohio Bureau of Workers’ Compensation (“BWC”) “First Report
of an Injury, Occupational Disease or Death,” form, acknowledging that she sustained her
injuries while in the course and scope of her employment. Marymount certified
Dorothy’s workers’ compensation claim to the BWC for administration, and Marymount
paid Dorothy a total of $61,527.42 in workers’ compensation benefits. {¶4} In the complaint, appellants alleged that Otis Elevator and Marymount
negligently failed to maintain the elevator in a safe condition. They also alleged that
Dorothy’s receipt of workers’ compensation benefits did not bar her negligence claim
against Marymount because, at the time of her fall, Marymount was acting in a
“dual-capacity” as both employer and non-employer. Thomas sought recovery based on
a derivative claim for the loss of his wife’s “society, comfort, companionship, and
consortium.”
{¶5} Appellants settled their claims against Otis Elevator for $15,000 and
subsequently amended their complaint to assert an employer intentional tort claim against
Marymount. Marymount answered the complaint and filed a counterclaim for
subrogation seeking recovery of the full amount of the workers’ compensation benefits it
paid to appellants. Marymount alleged that appellants failed to provide Marymount with
prior notice of their settlement with Otis Elevator.
{¶6} The trial court granted summary judgment in favor of Marymount on all of
appellants’ claims. It also granted summary judgment in favor of Marymount on its
counterclaim for subrogation. The trial court entered judgment in favor of Marymount in
the amount of $61,527.42. Appellants now appeal and raise five assignments of error.
Standard of Review
{¶7} We review an appeal from summary judgment under a de novo standard of
review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).
The party moving for summary judgment bears the burden of demonstrating the absence
of a genuine issue of material fact as to the essential element of the case with evidence of the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264
(1996). Once the moving party demonstrates that she is entitled to summary judgment,
the burden shifts to the nonmoving party to produce evidence related to any issue on
which the party bears the burden of production at trial. See Civ.R. 56(E).
{¶8} Civ.R. 56(C), provides that summary judgment is appropriate when, after
construing the evidence most favorably for the party against whom the motion is made,
reasonable minds can only reach a conclusion that is adverse to the nonmoving party.
Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).
Dual-capacity Doctrine
{¶9} In their first assignment of error, appellants argue the trial court erroneously
found the dual-capacity doctrine inapplicable. They contend that Marymount acted
simultaneously as Dorothy’s employer and as a “non-employer” when it allowed Dorothy
to use a general public elevator.
{¶10} Under Ohio law, employers who comply with the Workers’ Compensation
Act are granted immunity from civil liability for unintentional employment-related
injuries. In relevant part, R.C. 4123.74 states: “Employers who comply with Section
4123.35 of the Revised Code shall not be liable to respond to damages at common law or
by statute for any injury * * * received or contracted by any employee in the course of or
arising out of his employment.”
{¶11} However, an employer’s immunity from liability to its employees under the
workers’ compensation scheme may not apply if the employer occupies a second persona
or capacity in relation to the employer. Guy v. Arthur H. Thomas Co., 55 Ohio St.2d 183, 378 N.E.2d 488 (1978). In Guy, the Ohio Supreme Court held that a hospital
employee could maintain a medical malpractice action against the hospital
notwithstanding the immunity from civil liability provided by the workers’ compensation
system. The court reasoned that by providing medical treatment to the employee, the
employer-hospital assumed traditional obligations attendant to a hospital-patient
relationship, which are “unrelated to and independent of those imposed upon it as an
employer.” Id. at syllabus.
{¶12} The Ohio Supreme Court subsequently refined the dual-capacity doctrine in
Freese v. Consol. Rail Corp., 4 Ohio St.3d 5, 445 N.E.2d 1110 (1983), Bakonyi v. Ralston
Purina Co., 17 Ohio St.3d 154, 478 N.E.2d 241 (1985), and Schump v. Firestone Tire &
Rubber Co., 44 Ohio St.3d 148, 150, 541 N.E.2d 1040 (1989). In Freese, the court held
that the dual-capacity doctrine was unavailable to a police officer who was injured while
riding a motorcycle on city streets during the course and scope of his employment. The
court concluded that the city’s statutory duty to keep its streets clear and free of nuisance
did not “generate obligations to this employee independent of and unrelated to the city’s
obligations as an employer.” Id. at 11.
{¶13} In Bakonyi, an employee was injured while working in a greenhouse when
liquid fertilizer was sprayed in his eyes. The employer had purchased the liquid fertilizer
for use in its own greenhouse operations as well as for sale to the public. The employee
argued the dual-capacity doctrine should apply because the employer was engaged in the
public sale of the fertilizer. The court rejected the employee’s argument, explaining:
The [employer] was not a manufacturer of a product for public sale but rather was both a consumer and distributor. As such, the two purposes of [the employer’s] use of the product had differing obligations attached to them. The appellant was injured by the employment use, not the public sale use. As we observed in Freese, supra, at 11: “* * * [W]hat must be determined is whether the employer stepped out of his role as such, and assumed another hat or cloak. If the facts would show the latter, the employer has accordingly assumed another capacity and also has assumed independent obligations to his employee unrelated to the obligations arising out of the employer-employee relationship.” In this case, we find that [employer] had not assumed another capacity to the appellant and that the employment relationship predominated.
Bakonyi at 157.
{¶14} In Schump, the employee was injured while operating a truck in the course
of his employment, when one of the truck’s tires, which was manufactured by the
employer, blew out. In determining whether the dual-capacity doctrine applies, the court
in Schump explained:
The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first, but whether the second function generates obligations unrelated to those flowing from that of the employer. This means that the employer must step outside the boundaries of the employer-employee relationship, creating separate and distinct duties to the employee; the fact of injury must be incidental to the employment relationship.
Schump, at 152, quoting Weber v. Armco, Inc., 1983 OK 53, 663 P.2d 1221, 1226-1227
(Okla.1983). In other words, the “dual-capacity doctrine” does not apply where the
employee seeks “to sue his employer for injuries which are predominately work-related,”
id. at 150.
{¶15} Appellants rely on Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279, 361
N.E.2d 492 (6th Dist.1976), and Simpkins v. Gen. Motors Corp., 3 Ohio App.3d 275, 444
N.E.2d 1064 (2d Dist.1981), in support of their argument. In Mercer, the Sixth District Court of Appeals held that where a hazard is not necessarily one of employment but is
one common the public in general, there is no causal connection between the employment
and the injury, and the Workmen’s Compensation Law of Ohio is not a bar from
recovering from that employer. Id. at 285-286. In Simpkins, the Second District Court
of Appeals, relying on Mercer, found that the injured employee could not recover under
the dual-capacity doctrine because he was injured by a hoist that was only used by
employees and was not available to the public. Simpkins at 277.
{¶16} However, the Ohio Supreme Court’s decision in Schump implicitly
overruled Mercer and Simpkins. The court noted that the facts in Schump were
“strikingly similar” to the facts of Mercer. It nevertheless decided not to adopt the
holding in Mercer, explaining that Mercer “represent[s] a view without support in any
other state aside from California.” Schump at 151. Furthermore, the Ohio Supreme
Court’s decisions in Freese, Bakonyi, and Schump direct us to look at the employer’s role
in relation to the employee rather than just the employee’s status in relation to the public.
{¶17} Here, Dorothy testified at deposition that she was at Marymount solely for
purposes of work, and she was still “on the clock” at the time of the accident. She
admitted that although the elevator was available to the public, Marymount employees use
the elevator “all the time” as “part of their work.” There was no evidence that
Marymount assumed any other persona besides that of employer with respect to Dorothy,
nor do appellants identify any other role Marymount played other than that of a
nondescript “non-employer.” Unlike Guy, Marymount did not assume the traditional
role of hospital to treat Dorothy as a patient nor was Dorothy a visitor of the hospital. The undisputed evidence demonstrates that Dorothy’s injuries resulted from her
“employment use” of the elevator, and her injuries are “predominately work-related.”
Therefore, the dual-capacity doctrine was inapplicable.
{¶18} The first assignment of error is overruled.
Employer Intentional Tort
{¶19} In the second assignment of error, appellants argue the trial court erred in
granting summary judgment to Marymount on her employer intentional tort claim when
there was evidence that Marymount deliberately intended to injure her. In the third
assignment of error, Dorothy argues the trial court erred in granting summary judgment to
Marymount where there was evidence that Marymount deliberately removed a safety
guard. We discuss these assigned errors together because they are closely related.
{¶20} As previously stated, employees are generally limited to the remedy
provided under the Workers’ Compensation Act for injuries sustained in the workplace.
R.C. 4123.74. However, R.C. 2745.01(A) provides a limited exception for employer
intentional torts, and states:
In an action brought against an employer by an employee * * * for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
For the purposes of this statute, the term “‘substantially certain’ means that an employer
acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition,
or death.” R.C. 2745.01(B). {¶21} In Stetter v. R.J. Corman Detailment Servs., L.L.C., 125 Ohio St.3d 280,
2010-Ohio-1029, 927 N.E.2d 1092, the Ohio Supreme Court stated that by enacting R.C.
2745.01, particularly 2745.01(B), the Ohio General Assembly meant to “significantly
curtail an employee’s access to common-law damages” and “permit recovery for
employer intentional torts only when an employer acts with specific intent to cause
injury.” Id. at ¶ 24. Therefore, absent a deliberate intent to injure an employee, the
employer is not liable for employer intentional tort, and the injured employee’s exclusive
remedy is within the workers’ compensation system. Houdek v. Thyssenkrupp Materials
N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 23-25.
{¶22} Appellants argue Marymount is liable for an intentional tort because “it
knew or should have known that the elevator was not working properly” and “elected to
continue to operate the elevator instead of shutting it down.” Dorothy submitted an
affidavit in support of her brief in opposition to Marymount’s motion for summary
judgment in which she states: “Marymount knew that the elevator wasn’t operating
properly on the day of her injury but elected to keep it in operation.”
{¶23} Dorothy later contradicted her affidavit testimony at deposition when she
testified she did not know of any prior problems with the elevator and that no one ever
told her of any problems before the injury occurred. If an unexplained conflict exists
between a nonmoving party’s affidavit and deposition testimony, a trial court must
disregard the conflicting statements in the party’s affidavit when deciding a motion for
summary judgment. Zitron v. Sweep-A-Lot, 10th Dist. Franklin No. 09AP-1110,
2010-Ohio-2733, ¶ 27. A nonmoving party cannot avoid summary judgment by submitting an uncorroborated and self-serving affidavit that contradicts the party’s
deposition testimony. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d
47, ¶ 47. See also Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621,
¶ 23. Therefore, Dorothy’s affidavit testimony fails to create a genuine issue of material
fact as to Marymount’s knowledge and intent with respect to the elevator’s operation.
{¶24} Furthermore, Leonard Quinn (“Quinn”), who worked in Marymount’s
maintenance department, testified that complaints about the elevators come through the
maintenance department. According to Quinn, no one reported any problems with the
elevator, and he was not aware of any problems with the elevator the day Dorothy fell.
Although there had been a problem with one of the elevators a day or two before the
incident, Quinn testified that Otis Elevator repaired it, and personnel in the maintenance
department believed the elevators were working properly on the morning Dorothy was
injured.
{¶25} Appellants also argue that Marymount’s refusal to shut down the elevator
amounted to a deliberate removal of a safety guard. Although R.C. 2945.01 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.
Houdek, 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 12.
{¶26} In Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981
N.E.2d 795, the Ohio Supreme Court clarified the meaning of an “equipment safety
guard,” and defined it as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” Id. at syllabus. The court rejected any
more expansive interpretation that might include “any generic safety-related item” or
something besides a safety guard attached to machinery. Id. at ¶ 22, 24. Indeed, the
Ohio Supreme Court explained: “To construe ‘equipment safety guard’ to include any
generic safety-related item ignores not only the meaning of the words used but also the
General Assembly’s intent to restrict liability for intentional torts.” Decisions when to
shut down a public elevator do not fall within the limited definition of an “equipment
safety guard.” Therefore, there is no presumption that Marymount intended to injure
Dorothy.
{¶27} Despite appellants’ statements to the contrary, there is no evidence that
Marymount made a deliberate decision to keep the elevator in operation knowing that it
was dangerous. Therefore, there is no evidence that Marymount intentionally harmed
{¶28} The second and third assignments of error are overruled.
Loss of Consortium
{¶29} In the fourth assignment of error, appellants argue the trial court erred in
dismissing Thomas’s loss of consortium claim. A loss of consortium claim is a
derivative cause of action dependent upon the viability of the primary cause of action.
Tourlakis v. Beverage Distribs., 8th Dist. Cuyahoga No. 81222, 2002-Ohio-7252, citing
Lynn v. Allied Corp., 41 Ohio App.3d 392, 402, 536 N.E.2d 25 (8th Dist.1987). Since
Dorothy failed to prove any of her claims against Marymount, Thomas’s loss of
consortium claim must also fail. {¶30} The fourth assignment of error is overruled.
Subrogation
{¶31} In the fifth assignment of error, appellants argue the trial court erred in
granting judgment in favor of Marymount on its counterclaim for subrogation against
Dorothy in the amount of $61,527.42. They contend the judgment should have been
limited to the $15,000 it received from Otis Elevator.
{¶32} R.C. 4123.931 provides a self-insured employer, who pays workers’
compensation benefits to an injured employee, a statutory right of subrogation against any
third party who is or may be liable to the claimant for damages sustained during the
employee’s course and scope of employment. R.C. 4123.931(G), requires that a claimant
provide prior notice to a statutory subrogee of all third parties against whom the claimant
has or may have a right to recover. The statute further provides that “[n]o settlement,
compromise, judgment, award, or other recovery in any action or claim by a claimant
shall be final unless the claimant provides the statutory subrogee * * * with prior notice
and a reasonable opportunity to assert its subrogation rights.” Most importantly, the
statute states:
If a statutory subrogee * * * [is] not given notice, or if a settlement or compromise excludes any amount paid by the statutory subrogee, the third party and the claimant shall be jointly and severally liable to pay the statutory subrogee the full amount of the subrogation interest.
Thus, although the employer’s right to subrogated recovery is generally limited to the “net
amount” of the employee’s recovery from the third party, R.C. 4123.931 expressly
provides that the employee and third party are jointly and severally liable to the employer for the “full amount” of the employer’s “subrogated interest,” if the employee settles her
claim against the third party
without providing prior notice to the employer. Bur. of Workers’ Comp. v. Williams, 180
Ohio App.3d 239, 2008-Ohio-6685, 905 N.E.2d 201, ¶ 13-16 (10th Dist.).
{¶33} It is undisputed that, (1) Marymount is a self-insured employer; (2)
Marymount paid $61,527.42 to Dorothy for her work-related injuries; (3) Dorothy
settled her claims against Otis Elevator, a third party; and (4) Dorothy failed to provide
Marymount with the statutorily required notice of that settlement. Nevertheless,
appellants contend Marymount was not entitled to recover the $61,527.42 because it is
not a “statutory subrogee,” and, in any event, Marymount is barred from recovery by the
doctrine of unclean hands.
{¶34} Appellants assert that Marymount is not a “statutory subrogee” but rather a
“third party” based on its alleged “dual-capacity” or “intentional tort” liability. However,
as previously discussed, Marymount has no liability to Dorothy under either the
“dual-capacity” doctrine or the employer intentional tort statute. Furthermore, R.C.
4123.93 defines “statutory subrogee” as, inter alia, “a self-insured employer.” Because it
is undisputed that Marymount is a self-insured employer that paid Dorothy workers’
compensation benefits for her work-related injury, Marymount is a “statutory subrogee”
entitled to prior notice of Dorothy’s settlement with Otis Elevator.
{¶35} Appellants also argue that Marymount is barred from recovering its
subrogation interest by the doctrine of unclean hands. However, the clean hands doctrine
is a defense against claims in equity. Emery Woods Acquisition, L.L.C. v. Stanley, 8th Dist. Cuyahoga No. 93706, 2010-Ohio-3421, ¶ 26. The doctrine does not apply where a
party is not attempting to invoke the equitable powers of the court. Jamestown Village
Condominium Owners Assn. v. Market Media Research, Inc., 96 Ohio App.3d 678, 688,
645 N.E.2d 1265 (8th Dist.1994). Marymount’s claim for recovery is based on its
statutory right to subrogation. It is not an equitable claim. Therefore, the doctrine of
unclean hands is inapplicable to the facts of this case.
{¶36} Marymount is entitled to recover the full amount of the $61,527.42 it paid to
Dorothy. R.C. 4123.931(G) unequivocally states that, if the statutory subrogee is not
given prior notice of a settlement with a third party, “the third party and the claimant [are]
jointly and severally liable to pay the statutory subrogee the full amount of the
subrogation interest.” (Emphasis added.) Appellants assert that Marymount’s recovery
of the entire $61,527.42 is unconscionable and “shocks the conscience.” However, as
the court stated in Williams, if appellants wished to avoid liability for all or part of
[Marymount’s] subrogation interest, they could have done so by following the procedures
set forth in R.C. 4123.931. Williams at ¶ 16.
{¶37} The fifth assignment of error is overruled.
{¶38} Judgment affirmed.
It is ordered that Marymount recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and PATRICIA ANN BLACKMON, J., CONCUR