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Bare v. Warren Consolidated Industries9/21/2001
JUDGMENT: Affirmed.
Appellant, Michelle N. Bare, is appealing from the October 2, 2000 judgment entry of the Trumbull County Court of Common Pleas granting the motion for summary judgment of appellee, Warren Consolidated Industries.
Appellant's husband, Naamon D. Bare ("Bare") was employed by appellee. On April 14, 1996, he was assigned the task of performing preventive maintenance on a galvanized line welder, a task which was part of Bare's regular duties. In order to complete the task, Bare was required to position himself in the pass line of the welder. Before beginning the maintenance work, Bare was responsible for "locking out" the hydraulic pump on the welder to ensure that it would not be inadvertently activated. Bare did not follow that procedure on this occasion.
That same morning, two electricians were instructed to change the wheels on the welder. To change the wheels, the hydraulic pump that Bare should have locked out had to be activated. While Bare was still working inside the welder, one of the electricians activated the hydraulic pump. When the pump was activated, two clamps on the welder closed and Bare was pinned between them. He died as a result of his injuries.
Appellant filed a wrongful death action on March 26, 1998. On July 24, 2000, appellee filed a motion for summary judgment. The trial court granted that motion on October 2, 2000.
Appellant has filed a timely appeal and makes the following assignment of error:
"The trial court erred in granting summary judgment for [appellee]."
Generally, an employee is compensated for a work-related injury through the workers' compensation system. Youngbird v. Whirlpool Corp. (1994), 99 Ohio App.3d 740, 744. However, if the employer intentionally inflicted the injury, the employee may choose to seek damages directly from the employer. Id.
An employer has committed an intentional tort against an employee if the following elements can be demonstrated: "(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm 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." Fyffe v. Jeno's Inc. (1991), 59 Ohio St.3d 115, paragraph one of the syllabus. In the instant case, the trial court granted appellee's motion for summary judgment because it concluded that appellant failed to establish the second and third prongs of the Fyffe test.
In her appellate brief, appellant contends that she met the second and third prongs of the Fyffe test. With respect to the second prong, she references the affidavits of Bare's supervisor, Randy Bilkie ("Bilkie") and Douglas Dalrymple ("Dalrymple"), a safety engineer employed by appellee. Bilkie stated that appellee had a lock-out procedure, that employees were given training in that procedure and that the procedure was strictly enforced. Dalyrmple confirmed that training was given in the lock-out procedure. Appellant also relies on the affidavit of Richard Zimmerman ("Zimmerman"), a millwright employed by appellee, who stated that it was evident that the lock-out procedure was frequently violated.
Appellant suggests that this evidence is sufficient to meet the second prong of Fyffe, which requires that employer have knowledge that the employee is subjected at work to a procedure or condition so dangerous that
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