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Cox v. Barsplice Products6/15/2001
1997), 120 Ohio App.3d 11, 20; Foust v. Magnum Restaurants, Inc. (1994), 97 Ohio App.3d 451, 455; Goodin ex rel. Sheroan v. Columbia Gas of Ohio, Inc. (Mar. 13, 2000), Athens App. No. 99 CA 30, unreported, at p.9; Jones v. General Motors Corp. (May 9, 1997), Defiance App. No. 4-96-21, unreported, at p.4.
These cases have found that prior similar incidents should be "considered as one factor of knowledge that an injury is substantially certain to result * * *." Taulbee, 120 Ohio App.3d at 20. Nevertheless, these courts also agree that knowledge of prior injuries is not dispositive of the second element of the intentional tort.
In fact, at least one court held that evidence of prior accidents indicates that such injuries may occur in the future, but does not suggest that the employee's injury was substantially certain to occur. Heard, supra, at p.5. In Heard, the employer was aware of at least eight prior similar incidents where boxes fell off the conveyer belt, injuring employees. The court found that this knowledge was significant to show recklessness, but did not create a genuine issue of material fact that the employer was substantially certain Heard would be injured. Id. Similarly, the one minor prior injury in the present case is not sufficient to create a genuine issue of material fact that Barsplice was substantially certain Cox would be injured.
In addition to prior similar injuries, a court must examine the nature of the dangerous condition in determining whether injury was substantially certain to occur. Taulbee, 120 Ohio App.3d at 21. For example, in our case of Busch v. Unibilt Industries, Inc., we determined the nature of the dangerous condition created a genuine issue of material fact as to whether injury was substantially certain. (Sept. 22, 2000), Montgomery App. No. 18175, unreported. In Busch, the employer required its employees to work eight feet above the factory floor without the benefit of restraints or any other safety devices. This condition, combined with the law of gravity, created a situation where injury to the employees was substantially certain. As a result, we found a genuine issue of material fact existed as to the elements of the intentional tort. Id. at p.4.
Conversely, the supreme court in Pariseau v. Wedge Products, Inc. did not find the nature of the process to be dangerous enough to meet the substantial certainty test. (1988), 36 Ohio St.3d 124. Pariseau involved a punch press comprised of a "ram" that descended onto a part, which had to be removed when the ram ascended. The press operator wore safety restraints intended to automatically pull the operator's hands out of the way when the ram descended. There was substantial testimony that this ram tended to "repeat," meaning that it descended without warning when the operator was removing the finished part from the press. Id. at 130.
On the night of Pariseau's injury, the ram was repeating and several employees testified they were frightened to operate it, particularly without a 2 x 4 inch piece of wood to remove the completed part. One employee refused to continue operating the machine after it began to repeat. Aware the press was repeating, the foreman recruited Pariseau to operate it, gave him instructions and adjusted his safety restraints. The foreman also removed the 2 x 4 from the area and did not advise Pariseau of its purpose. Id. An hour after Pariseau began operating the press, it repeated and his safety restraints failed, allowing the ram to descend onto his right hand. Three of his fingers were amputated. Id. at 124. The court found that the evidence was certainly sufficient to find the employer reckless, but did not create a genuine issue of material fact th
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