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Keller v. Northwest Conduit Corporation9/26/2000
to line and 7,600 volts line to ground such as this is substantially certain to be electrocuted.
Stickdorn testified that he was unaware of the possibility of arcing occurring in the present case. However, Stickdorn did testify that he knew when working near an overhead power line, there is a possibility that if a track hoe gets too close to the power line, electricity can "arc over" even though the hoe doesn't make contact with the line.
Appellee argues that Stickdorn "had no intention to hurt them, or reason to believe that an accident was substantially certain to occur. The arcing of the electricity through the concrete dust was both unfortunate and unanticipated." (Emphasis sic.) This statement may be true. However, we are required to construe the evidence most strongly in favor of appellant. Therefore, after combining Stickdorn's knowledge of the possibility of high voltage arcing, with Paulus' statements that: (1) "everyone in the construction industry knows" about the hazards of jackhammering within a few inches of live high voltage electrical components of a transformer; and (2) a worker required to jackhammer within a few inches of such components "is substantially certain to be electrocuted," we find that sufficient evidence was presented to create a question of fact whether appellee, through Stickdorn, had knowledge that if appellant was subjected to jackhammering within the transformer, the harm that occurred to appellant was a substantial certainty. Additionally, evidence was presented supporting the third prong of Fyffe that appellee required appellant to perform the dangerous task.
Accordingly, we find that appellant presented sufficient evidence satisfying each of the three prongs of the Fyffe test. Therefore, we find that the trial court erred in sustaining appellee's motion for summary judgment. Appellant's assignment of error is sustained, the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.
Judgment reversed; cause remanded.
KENNEDY, J., concurs.
LAZARUS, J., dissents.
LAZARUS, J., dissenting.
Being unable to agree with the majority, I respectfully dissent.
Construing all reasonable inferences in a light most favorable to the non-moving party, I believe appellant failed to meet his burden of establishing a genuine issue of material fact on the first or second elements of the Fyffe test. Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115. In order to establish intent on the part of an employer, the employee must prove knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation, and knowledge that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition within its business operation, then harm to the employee will be a substantial certainty. The proof required to establish an intentional tort must be beyond that required to prove negligence or recklessness. Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 484, citing Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, paragraph six of the syllabus. The plaintiff must prove by a preponderance of the evidence that the employer had actual knowledge of the exact dangers which ultimately caused injury. Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172. Evidence that the employer knew, to a substantial certainty, that harm would result often must be demonstrated through circumstantial evidence and inferences drawn from the evidence. Emminger v. Motion Savers, I
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