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Busch v. Unibilt Industries9/22/2000
ion, Order and Entry, p. 9).
The record is not lacking in evidence of injuries resulting from prior falls similar to Busch's. Another employee, Roy J. Burger, a drywall hanger, fell ten feet to the floor while walking across a roof truss and was injured. Randy William Loper, an assembler, fell through drywall and struck a truss. Loper also testified that falls were not uncommon. Jason Fritz stated that he had fallen through ceilings numerous times while insulating roofs and laying subflooring. Stacy Busch testified that another employee fell to the floor approximately one year before he did. Gregory Lee Whitt, a quality control manager, testified that a worker had fallen through drywall from a height of more than eight feet, injuring another worker who was working at ground level. This evidence demonstrates that falls similar to the fall that injured Stacy Busch have repeatedly occurred, and that persons were harmed as a result.
Whether any harm was a substantial certainty in the context of Van Fossen depends on the probability of its occurrence. An event is certain if it is inevitable; that is, given to and marked by complete assurance and conviction. In human affairs, only death satisfies that test. Thus, and for these purposes, the harm involved must have been a "substantial certainty." When used as an adjective, substantial means that which is specified to a large degree or in the main. Webster's Third New International Dictionary (1986).
So long as the Earth rotates on its axis, the law of gravity is certain. While the law of gravity prevails, it is also certain that an unsupported object will fall until its travel is interrupted by some object or surface below. When the falling object is a human being, harm resulting from the fall is a substantial certainty, depending on (1) the height from which the fall takes place and (2) the hazard presented by the surface or objects below.
Where an employer has removed a safety device that might have prevented an injury, courts may consider that fact in determining motions for summary judgment on employee intentional tort claims. Fyffe v. Jeno's, Inc., supra. Here, the evidence doesn't show that Unibilt removed a safety device, but instead that it failed to install or complete one. Unibilt disputes that the device could have prevented Busch's fall and the harm resulting from it. However, for purposes of Civ.R. 56, we must construe that evidence most strongly in favor of Busch.
Notwithstanding the relatively few falls that took place in relation to the exposure to the risk of falls that Unibilt's manufacturing process created, we cannot find that Plaintiff Busch failed to bear the burden of proof on the "substantially certain" prong that Civ.R. 56 imposes.
Other courts have held that the harm resulting from a fall is a substantial certainty because of the very nature of the causes which produce a fall, the lack of prior experience notwithstanding. Emminger v. Motion Savers, Inc. (1990), 60 Ohio App.3d 14; Dirksing v. Blue Chip Architectural Products, Inc. (1994), 100 Ohio App.3d 213; Reese v. Euclid Cleaning Contractors, Inc. (1995), 103 Ohio App.3d 141. As in those cases, Busch was assigned by his employer to a task which put him at a direct risk of harm from falling from an elevated height, a risk that was lessened only slightly by the use of safety restraints. The nature of the risk was such that the resulting harm was one which reasonable minds could conclude was a substantial certainty, not just a matter of high risk.
The burden imposed on plaintiffs to prove that any harm was a substantial certainty is itself a substantial burden. However, in motions for summary judgment the bur
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