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Pettit v. Clarion Technologies8/26/2005
to the employee will be a substantial certainty; and (3) that the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task. Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d 482, 484, 1998 Ohio 408 (quoting Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus).
{ } "To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk -- something short of substantial certainty -- is not intent." Fyffe, supra, at paragraph two of the syllabus.
{ } When considering whether an employer's conduct is sufficiently egregious to constitute an intentional tort, courts must refrain from construing the term "intentional tort" too broadly. Goodin, supra, at 215. As stated by the Supreme Court of Ohio in Van Fossen v. Babcock & Wilcox (1988), 36 Ohio St.3d 100, 116, "* * * the dividing line between negligent or reckless conduct on the one hand and intentional wrong on the other must be drawn with caution, so that the statutory frame work of the [Workers' Compensation] Act is not circumvented simply because a known risk later blossoms into reality. * * *'" Id. (citation omitted).
{ } The court in Van Fossen went on to state:
{ } "If 'intentional wrong' is interpreted too broadly, this single exception would swallow up the entire 'exclusivity' provision of the Act, since virtually all employee accidents, injuries, and sicknesses are a result of the employer or a co-employee intentionally acting to do whatever it is that may or may not lead to eventual injury or disease. Thus in setting an appropriate standard by which to measure an "intentional wrong," we are careful to keep an eye fixed on the obvious: the system of workers' compensation confronts head-on the unpleasant, even harsh, reality -- but a reality nevertheless -- that industry knowingly exposes workers to the risks of injury and disease." Id. (citation omitted).
{ } In support of their motion for summary judgment, Clarion submitted the affidavit of James Anderson, a process engineer and co-worker of Pettits. Anderson testified that "typically" at Clarion, a forklift and basket combination was used to work on equipment or areas in the plant that a ladder could not reach. On April 26, 2001, Anderson testified that he saw Pettit sitting on the end of the robotic arm on press No. 8. Anderson told Pettit to get down and use the basket but, Anderson testified, Pettit ignored him. Clarion also submitted the affidavit of Richard V. Walle, a certified safety consultant. Walle testified that for approximately ten years he has been teaching companies how to keep employees from being injured. In 2004, he visited the Clarion factory and viewed the area where Pettit was injured. Specifically, he entered a basket attached to a forklift and was lifted to the area where Pettit performed his repairs on April 26, 2001. Walle testified that from his position in the basket, he could easily reach the control box and vacuum lines of the robotic arm, th
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