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Bare v. Warren Consolidated Industries9/21/2001
harm to the employee will be a substantial certainty. We disagree.
Initially, we would note that the affidavits of Bilkie and Dalrymple are evidence that Bare was trained in the proper safety techniques appropriate for his job . Appellant has offered no evidence that, if Bare had followed the procedures set forth by appellee, there would have been a substantial certainty of him being injured while cleaning the welder.
While Zimmerman's affidavit suggests that safety procedures were violated by employees, there is no evidence that any other employee of appellee had been injured while cleaning the welder, or that, if Bare had locked out the welder, he would have been injured. Nor is there any evidence that appellee discouraged Bare from following the recommended safety procedures.
The general rule is that "an employer is not liable for the injuries the employee suffered on an intentional tort theory where the employee voluntarily deviates from his employer's instructions or established operating procedure." Neal v. McGill Septic Tank Co. (Dec. 4, 1998), Trumbull App. No. 98-T-0022, unreported, 1998 WL 964505, at 2. Intentional tort cases, involving workplace accidents, where courts have held that the plaintiff mustered enough evidence to avoid summary judgment are readily distinguished from the case sub judice.
In Fyffe, 59 Ohio St.3d at 120, the plaintiff was injured while cleaning a moving conveyor belt. He stated that he had been trained to clean the conveyor belt with the belt running. Id. Further, a Plexiglas safety guard had been removed to expedite the cleaning. Id. The implication of the plaintiff's statements in Fyffe was that he was engaged in a dangerous practice that involved skirting safety measures and that this practice was sanctioned by his supervisor.
Similarly, in Courtad v. Whirlpool Corp. (1989), 48 Ohio App.3d 200, 203, the plaintiff's supervisor had been informed by five different people that the press which the plaintiff was operating was malfunctioning. The plaintiff further testified that, in spite of the fact that the press was malfunctioning, he was instructed to continue operating the press until he met his quota. Id.
Here, there was no evidence presented to suggest that appellee was aware of a dangerous condition, other than the danger encountered whenever an employee works with any type of heavy machinery. There is no suggestion that the welder was in any way defective. Nor is there any suggestion that appellee attempted to circumvent appropriate safety procedures or encouraged its employees to do so. While Zimmerman's affidavit suggests that appellee may have been aware of lock-out violations, appellee had trained Bare on the appropriate safety procedures and provided him with the means to execute those procedures. No evidence was presented suggesting that any representative of appellee encouraged Bare to work on the welder without first locking out the hydraulic pump. Therefore, we agree with the trial court that appellant failed to meet the second prong of the Fyffe test.
The third prong of the Fyffe test requires that the employer have knowledge of the dangerous condition, but nevertheless insist on the employee performing the task. Appellant asserts that this prong of the test was met by the simple fact that Bare was instructed to perform preventative maintenance on the welder. This assertion is utterly without merit.
There is nothing in the record to suggest that Bare, his supervisor, or any representative of appellee viewed performing preventative maintenance on the welder as an inherently dangerous task. Appellant has not identified any defects in the welder that led to Bare's
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