 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Vermett v. Fred Christen & Sons Co.8/25/2000
the risks involved, and still not be liable for an intentional tort:
"There are many acts within the business or manufacturing process which involve the existence of dangers, where management fails to take corrective action, institute safety measures, or properly warn the employees of the risks involved. Such conduct may be characterized as gross negligence or wantonness on the part of the employer. However, in view of the overall purposes of our Workers' Compensation Act, such conduct should not be classified as an 'intentional tort' and therefore an exception, under Blankenship or Jones, to the exclusivity of the Act." Van Fossen, 36 Ohio St.3d at 117.
Accordingly, to withstand a motion for summary judgment, the injured employee must set forth specific facts that raise a genuine issue of material fact as to each element of the Fyffe three-prong test. See Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d at paragraph seven of the syllabus.
The trial court held that a genuine issue of material fact existed with respect to the first element of the Fyffe three-prong test, i.e., whether FC&S;had knowledge of a dangerous condition. However, the trial court found that appellants failed to establish a genuine issue of material fact as to the second or third prongs, i.e., whether FC&S;knew that harm to appellant was a substantial certainty if appellant was subjected by his employment to such dangerous process, procedure, instrumentality or condition, and whether FC&S;required appellant to continue to perform the dangerous task.
On appeal, appellants argue that the trial court erred in finding that there were no genuine issues of material fact as to the second or third elements of the Fyffe standard. Specifically, appellants argue that, under the totality of the evidence presented and after viewing all the evidence in favor of appellants, a reasonable juror could find that FC&S;knew that injury to appellant was a substantial certainty, and that FC&S;required appellant to perform a dangerous task despite such knowledge.
Appellants rely on a number of factors which they consider establish an employer intentional tort, such as:
(1) appellant had only been employed by FC&S;for two and one-half months at the time of his injury;
(2) he had never worked a press brake before the day of the accident;
(3) appellant was instructed to operate the press without adequate training (15-20 minutes, rather than the three days recommended by Wysong, or the week's worth of training provided other FC&S;employees);
(4) appellant did not recall being told not to put his hand into the point of operation;
(5) appellant's supervisor never told appellant what to do if a piece became stuck in the pinch point or die area;
(6) appellant understood that when a piece became stuck in the die area, the only way to remove it would be to reach into the pinch point or die area;
(7) there was no safeguarding to prevent an operator from placing his or her hands in the die area because a foot switch was used, rather than a dual palm control;
(8) Wysong "encouraged" its customers to obtain separate point of operation guarding, including dual palm buttons, to safeguard against injury, although no such safeguarding was demonstrated to FC&S;during training;
(9) Linemaster's chief engineer, Alfred R. DiBonaventura, testified that use of the Linemaster foot switch without point of operation safeguarding created a situation where harm to an employee was a substantial certainty;
(10) a Division of Safety & Hygiene Safety Cons
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Ohio Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|