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Hill v. J.S. MacLean Company2/1/2001
APPEAL from the Franklin County Court of Common Pleas.
Gregory R. Hill, plaintiff-appellant, suffered injuries to his wrist and hand while using a saw in the course of his employment with The J.S. MacLean Company ("MacLean"), defendant-appellee. Hill commenced an action against his employer, MacLean, for damages for an intentional tort claiming that they exposed him to a risk of injury with knowledge that it was substantially certain that harm to an employee would occur.
MacLean answered appellant's complaint admitting that injuries were suffered by appellant, but denying that an intentional tort occurred. Various affirmative defenses were asserted, of which the one most pertinent to this appeal is that appellant's claims are barred by workers' compensation immunity.
After substantial discovery, appellee served a motion for summary judgment supported by affidavits, depositions and answers to interrogatories. Appellant resisted the motion and submitted similar documents in support of his contention that there is a genuine issue of fact to be decided by a jury.
The trial court ultimately granted appellee's motion for summary judgment and rendered final judgment for appellee.
Hill appeals, asserting the following assignment of error: The trial court erred in granting Defendant The J.S. MacLean Company's summary judgment.
The Ohio Supreme Court has set forth a three-prong test to determine if an employer had the requisite intent needed for an intentional tort. The three parts to this test are:
* (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within his business operation; (2) knowledge by the employer that if employees are required by virtue of their employment to be subjective to such dangerous process, procedure, instrumentality or condition, then harm to them would be a substantial certainty, and not just a high risk; (3) that the employer, under such circumstances, and with such knowledge, did act to so require the employee to continue performing his employment tasks. [Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, at 116. ]
To survive a motion for summary judgment, appellant must set forth specific facts that show a genuine issue of material fact exists as to each prong of the Van Fossen test. McConville v. Jackson Comfort Sys., Inc. (1994), 95 Ohio App.3d 297, 303.
The prongs of the Van Fossen test focus on the knowledge of the employer. The plaintiff who claims that the employer has committed an intentional tort carries the burden of proving the employer's knowledge. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172. To prove that an employer had the requisite knowledge, the plaintiff must show more than negligence or recklessness.
To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. Where the risk is great and the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk-something short of substantial certainty-is not intent. [Van Fossen, supra, at 117.]
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