 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Busch v. Unibilt Industries9/22/2000
den is on the moving party. Dresher v. Burt (1996), 75 Ohio St.3d 380. That burden is to show that no case or controversy exists concerning an issue on which the adverse party's claim depends. Wolf v. McCullough-Hyde Memorial Hosp., Inc. (1990), 67 Ohio App.3d 349. That requires the court to make a factual inquiry. Fabrotta v. Merida Huron Hosp. Sch. Of Nursing (1995), 102 Ohio App.3d 653. Because that inquiry avoids the jury review to which it otherwise is entitled, this court has held that "all doubts must be resolved in favor of the nonmoving party." Hampton v. Trimble (1995), 101 Ohio App.3d 282, 286.
The direct risk of a fall that Busch's assignment presented, coupled with the record of prior, similar falls, the lack of any safety restraints, and the serious injury to Busch that resulted, create doubts concerning the summary judgment relief that Unibilt requested and the basis for it. We conclude that the evidence is in conflict concerning whether Unibilt's manufacturing process made the harm that Busch suffered a substantial certainty. On that basis, we find that the trial court erred when it held that Busch cannot present evidence that satisfies the second prong of the Van Fossen test.
The third prong of Van Fossen requires proof that the employer in fact required the employee to continue to perform the task, having knowledge of the danger it presented. The trial court found no evidence that Unibilt had expressly required Busch to walk across trusses to perform his required tasks. However, it is undisputed that Unibilt was aware that Busch and other employees performed their tasks in that way. Indeed, it is clear that Unibilt acquiesced in the process. This raises an inference that Unibilt required Busch to perform those tasks that is sufficient to defeat Unibilt's motion. Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482.
The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT- APPELLEE ON PLAINTIFFS-APPELLANTS' CLAIMS FOR PUNITIVE DAMAGES AND FOR LOSS OF CONSORTIUM.
Amy Busch's loss of consortium claim is derivative of Stacy Busch's intentional tort claim. Having granted Unibilt's motion for summary judgment on the intentional tort claim, the trial court was required to likewise grant summary judgment for Unibilt on the loss of consortium claim. The holding also eliminated the necessary basis of Stacy Busch's prayer for punitive damages. Our decision sustaining the first assignment of error revives the loss of consortium claim and the prayer for punitive damages.
The second assignment of error is sustained.
Conclusion
Having sustained the assignments of error presented, we will reverse the judgments from which this appeal was taken and remand the case to the trial court for further proceedings.
BROGAN, J. and WOLFF, J., concur.
|