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Keller v. Northwest Conduit Corporation9/26/2000
any one prong renders immaterial any disputes of fact with respect to the other prongs. Timmons v. Marketing Services by Vectra, Inc. (Nov. 18, 1999), Franklin App. No. 99AP-272, unreported, discretionary appeal not allowed (2000), 88 Ohio St.3d 1435. Mere knowledge and appreciation of a risk does not show intent on the part of the employer. Cross v. Hydracrete Pumping Co., Inc. (1999), 133 Ohio App.3d 501, 507. It is also important to note that "in the arena of intentional tort, it is an 'actual knowledge' standard. What a reasonable person should have known is not sufficient." Burkey v. Teledyne Farris Engineering (June 30, 2000), Tuscarawas App. No. 1999AP030015, unreported.
Concerning the first prong of the Fyffe test, appellant presented an affidavit from Robert Paulus, a professional engineer with a Bachelor of Science degree in electrical engineering. Paulus stated that the transformer appellant and Miller were working on handled 13,200 volts of electricity, and that the national electric code provides that access to an enclosure containing voltage over 600 volts should be permitted only for "qualified persons." When asked if there were things in the transformer appellant and Miller were trying to "stay away from," appellant answered: "Yeah, everything." Appellant agreed with the statement that before they began to jackhammer, Stickdorn, appellant's foreman on the date of the accident, told them "to be careful."
In his deposition, Stickdorn agreed with the question that "it your understanding that inside these transformers there's the potential at least to be shocked or electrocuted." He also agreed with the statement "that jackhammering around electrical components can be a dangerous practice." He also stated that he knew that the transformer had high-voltage electricity inside of it. Additionally, Stickdorn, appellant, and Miller were aware that the electricity to the transformer had not been turned off and that the transformer was active. In fact, Stickdorn asked for the electricity to be shut off from the transformer because " here's potential danger any time you're working around stuff." After construing this evidence in appellant's favor, we find that appellant presented sufficient evidence to show that an issue of fact exists concerning whether appellee, through Stickdorn, had knowledge of the existence of a dangerous process, procedure, instrumentality or condition within the transformer.
Concerning the second prong of the Fyffe test, Paulus stated in his affidavit that he was familiar with 13,200 volt to 480 volt wire power transformers such as the one involved in the present case. Paulus also stated that it "is common knowledge of all contractors that installations such as this provide a 'maintenance window' when power can be shut down so that work such as jackhammering can be done without risk of electrocution." Paulus also stated that:
Electricity arcs at the rate of 1000 volts to the inch. Based upon an arithmetic formula, there were 7600 volts of electricity to ground in the transformer primary compartment in question. This means that electricity would arc 7.6 inches from the transformer primary bushing and no grounded object should have been nearer than that distance so long as the transformer was powered.
*
It is my opinion that everyone in the construction industry knows that if a worker is required by his employment to operate a jackhammer within a few inches of a live bushing or lightning arrestor of a transformer, which is the case here, * harm will be a substantial certainty. In other words, a worker who is required to jackhammer within a few inches of a live part of a transformer operating at 13,200 volts line
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