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Vermett v. Fred Christen & Sons Co.8/25/2000
defendant Wysong & Miles Company.
"3. The trial court erred in granting partial summary judgment to defendant Linemaster Switch Corporation.
"4. The trial court erred in denying plaintiff's motion for reconsideration of first opinion and judgment entry.
"5. The trial court erred in denying plaintiff's motion for reconsideration of second opinion and judgment entry.
"6. The trial court erred in denying plaintiff's motion for reconsideration of third opinion and judgment entry."
This court notes at the outset that in reviewing a motion for summary judgment, we must apply the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 129. Summary judgment will be granted when there remains no genuine issue of material fact and, when construing the evidence most strongly in favor of the non-moving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. Civ.R. 56(C).
A. APPELLANT'S CLAIMS AGAINST FC&S;BR>
The Ohio Workers' Compensation Act provides that a participating employer shall not be liable to respond in damages at common law or by statute for death, injuries or occupational disease of its employees. Section 35, Article II, Ohio Constitution. This immunity does not apply when an employer intentional tort has occurred within the context of the employer/employee relationship. Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608, syllabus.
To establish an employment intentional tort, an employee must prove by clear and convincing evidence that the employer deliberately committed all of the elements of an employment intentional tort. R.C. 2745.01(B). An employment intentional tort "means an act committed by an employer in which the employer deliberately and intentionally injures * an employee." R.C. 2745.01(D)(1). Accordingly, the focus in Blankenship and its progeny is on the proof required to establish intent for the purpose of showing that an employer committed an intentional tort against its employee. See, e.g., Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 109. In Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus, the Ohio Supreme Court established the following three elements necessary to prove the existence of an employer's intentional tort: "(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."
In setting forth the proof required to establish intent, the Fyffe court held that "mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent." Id. at paragraph two of the syllabus. Rather, it must be shown that the probability of certain consequences is such that the "employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds * ." Id. Only in these circumstances, will intent be inferred from the employer's knowledge of all the facts and circumstances which create the risk. Emminger v. Motion Savers, Inc. (1990), 60 Ohio App.3d 14, 16.
An employer can fail to take corrective action, institute safety measures, or properly warn the employees of
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