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Busch v. Unibilt Industries9/22/2000
Rendered on the 22nd day of September, 2000.
Plaintiffs, Stacy and Amy Busch, appeal from a summary judgment rendered in favor of Defendant, Unibilt Industries, Inc. ("Unibilt"), on the Plaintiffs' intentional tort claims.
Unibilt is in the business of producing and selling manufactured homes. Instead of being constructed on a building site, from the ground up, Unibilt's homes are constructed in a factory, using an assembly line process.
Stacy Busch was employed by Unibilt in its factory as a "rough plumber." His job was to install plumbing and vents through the walls of manufactured homes and into the attic space. This required him to work at a height of about eight feet above the factory floor. Busch typically reached those locations by walking across exposed trusses of uncompleted floors.
Unibilt installed a steel safety cable running above the units on which Busch and others worked. However, Unibilt had not provided safety harnesses that workers could attach to the cable to save them from a fall. At best, Busch and other workers could only grasp the cable by hand to prevent a fall that might occur as they traversed the trusses of a roof.
On May 21, 1997, Busch was walking across a series of trusses when he stepped on a truss that was inadequately nailed and which gave way. Busch was unable to grasp the safety cable and fell toward the floor. He suffered a severe injury to his groin area when he landed on and shattered a two-by-four board installed for a railing.
Busch commenced this action, alleging claims for relief for intentional tort and negligence. He sought compensatory and punitive damages. His spouse, Amy Busch, sought damages for loss of consortium.
Unibilt moved for summary judgment on the plaintiffs' claims for relief. The trial court analyzed the issues and the evidence presented, applying the three-prong test for intentional tort claims of Van Fossen v. Babcock-Wilcox Co. (1988), 36 Ohio St.3d 100. The court granted Unibilt's motion, holding that reasonable minds could not conclude that any of the three prongs were satisfied by the evidence presented. The court's holding on the intentional tort claim compelled it to also grant summary judgment on the derivative loss of consortium claim.
Plaintiffs Stacy and Amy Busch filed a timely notice of appeal. They present two assignments of error.
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT-APPELLEE ON PLAINTIFFS- APPELLANTS' CLAIM FOR EMPLOYER INTENTIONAL INJURY.
Employer intentional tort claims must be analyzed within the broader context of Ohio's workers compensation system, which bars actions brought by employees for injuries arising from negligent or reckless acts or omissions on an employer's part. In those latter events, the injured employee must look to the workers compensation fund for his losses. However, because the workers compensation system was not established to compensate for intentional torts on the employer's part, intentional tort claims are not barred. Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982), 69 Ohio St.2d 608.
In order to establish "intent" for the purpose of proving that an intentional tort was committed by an employer against his employee, the employee must demonstrate three things: "(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the empl
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