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Bee v. Toth Industries11/15/2002
DECISION AND JUDGMENT ENTRY
. This is an appeal from a summary judgment issued by the Lucas County Court of Common Pleas against an employee in an employer intentional tort claim. Because we conclude that the employee submitted sufficient evidence to raise a question of fact concerning substantial certainty of injury, we reverse.
. Appellee, Toth Industries, Inc., is a manufacturer of auto components. Appellant, Edward A. Bee, was a 15-year employee of appellee when, in 1999, he fractured his ankle on the job .
. Appellant is a diabetic with an associated condition known as neuropathy, a lack of feeling or sensation in his feet. Because of this condition, appellant was at increased risk for blisters and infection associated with wearing a cast.
. On January 14, 1999, an orthopedic surgeon set appellant's fractured ankle and applied a short cast. Appellant was ordered off the foot. He remained off work until April 5, 1999. At that time, appellant's physician received a fax from Bob McCullough, appellant's shift supervisor, seeking permission for appellant to return to work. McCullough characterized the work to which appellant would be assigned as "light duty." Specifically, McCullough described appellant's proposed work duties as "data entry work and other desk type work at a computer station. This will require Ed to walk to his working area. At this point he will be able to sit in a chair during his working hours."
. Appellant's physician approved work release under the conditions stated and returned the proposal to McCullough. Appellant then returned to work on April 7. It is undisputed that neither the physician nor appellant ever informed appellee or its agents of appellant's neuropathy or the special risks it posed.
. During his first week back at work, except for an errand outside the plant, appellant was assigned to data entry as indicated in his physician's release. During the second week, appellant was, however, assigned to do "timing checks" on manufacturing machinery on the plant floor. Although appellant was able to conduct these checks while seated, it is undisputed that he was required to walk from machine to machine to perform this work. The exact distance appellant was required to walk is not clear from the record.
. Following two days of machine timing, appellant was fitted for an ankle brace. The fitter found a blister on appellant's heel and advised appellant to immediately contact his physician. Appellant's physician ordered him off the foot for four days, then permitted him to return to work with the instruction that appellant be restricted to a "sit down job only."
. Appellant returned to work on April 20, 1999, but, despite the physician's written restrictions and appellant's own protests, was again assigned to perform timing checks on the shop floor. This assignment continued through April 22.
. Appellant alleges that the walking from these three days on the floor caused a blister on his foot to become severely infected. As a result, appellant's left foot was amputated.
. Appellant then sued appellee, alleging an intentional employer tort. Following discovery, the matter was submitted on cross-motions for summary judgment. On December 17, 2001, the trial court concluded that appellant failed to meet his burden to show "substantial certainty" of harm. The trial court granted summary judgment in favor of appellee and denied appellant's cross-motion. This appeal followed.
. Appellant sets forth the following sole assignment of error:
. "The trial court erred in granting defendant Toth Industries, Inc.'s motion for sum
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