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Gibson v. Drainage Products11/18/2002
JUDGMENT: Judgment reversed and cause remanded.
. Plaintiff-Appellant, Susan R. Gibson, individually and as administratrix of the Estate of Mike E. Gibson, and also as parent, natural guardian and next friend of Kayla and Samantha Gibson (collectively, "plaintiff"), has appealed the judgment of the Paulding County Common Pleas Court directing a verdict in favor of Defendant-Appellee, Drainage Products, Inc ("defendant"), on the grounds that plaintiff failed to prove the second prong of the three-prong test for intentional workplace tort claims announced by the Ohio Supreme Court in Fyffe v. Jeno's, Inc. On March 2, 2001, this Court affirmed the entry of directed verdict on the grounds that defendant had failed to satisfy the third prong of the test. Upon further review, the Ohio Supreme Court found, contrary to our prior decision, that plaintiff had satisfied the third prong of the test and remanded the matter to this Court for consideration of plaintiff's remaining assignments of error, including whether sufficient evidence was presented to survive directed verdict with regard to the first two prongs of the Fyffe test.
. Reviewing the first two prongs of the Fyffe test, we find that there is sufficient evidence upon which a rational trier of fact could conclude that the defendant knew that the manufacturing line was dangerous and that harm was substantially certain to occur if defendant failed to comply with the "lockout--tagout" procedure when conducting repairs of the manufacturing line. In the remaining assignments of error, plaintiff contends that the trial court erred in permitting testimony regarding Susan Gibson's cohabitation with another man after her husband's death and in allowing the defendant to question her expert concerning the application of OSHA standards. We find that plaintiff waived any error regarding the cohabitation evidence by eliciting the evidence upon direct examination of Susan Gibson. Furthermore, given the material discussed in plaintiff's examination of its expert witness, we find that defense counsel was entitled to cross-examine the witness and impeach him as to his knowledge and application of OSHA regulations. Accordingly, consistent with the Ohio Supreme Court's pronouncement and our determinations herein, we must reverse the judgment of the trial court.
. This case arose from a February 21, 1996 incident, which led to the death of Mike Gibson during the course of his employment with defendant. The defendant is a company that manufactures plastic corrugated drainage pipe and employed Mike Gibson on a full-time basis from March 1994 until his death. As part of defendant's manufacturing process, plastic chips are fed by a conveyor into an "extruder" that heats the plastic until it becomes malleable, at approximately 500 degrees Fahrenheit. The plastic is then pushed through a "screen changer" that removes impurities and then through two pipes that force the molten plastic into a die that molds it into a tube shape. At certain intervals the piping is wrapped with heating coils, which are intended to keep the plastic at a consistent temperature as it passes through the machine. The manufacturing line is approximately sixty feet long.
. On February 21, 1996, defendant's employee, Tim Jewell, who was working as an "operator" of a portion of the manufacturing line, noticed that molten plastic appeared to be seeping from around the screen changer. Various employees conferred about the issue and began efforts to repair the problem.
. Mike Gibson was a "mixer" and did not work directly on the line; he worked in a different but nearby area of the plant. However, testimony in the record indicated that employees w
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