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Holtz v. Schutt Pattern Works Co.8/2/1993
HARPER, Judge.
This case involves an intentional tort claim filed by plaintiff-appellant, Robert Holtz, against his former employer, defendant-appellee Schutt Pattern Works Company ("Schutt"). In his complaint, Holtz alleged that he was injured while operating an "Oliver" jointer wood-stripping machine ("jointer") on May 18, 1989 at the Schutt plant located at 1390 East 170th Street, Cleveland, Ohio. Holtz now appeals from the granting of summary judgment in favor of Schutt by the Court of Common Pleas of Cuyahoga County. A careful review of the record compels reversal.
"12. Affiant further says that Defendant through Paul Liukart was substantially certain injury was going to occur to his operator's including Plaintiff herein, because of the very same reason described above that without safety guards the blades break and also the wood kicks back causing harm to the operator.
"* * *
"14. Affiant says that Defendant knew with substantial certainty that such injury would occur but in order to save the expense for the safety guards and especially because the safety guards slowed down the production process, the Defendant intentionally refused to provide said guards."
The affidavit of Paul Liukart provides the following additional information. Liukart trained Holtz in the use of the jointer which did not have a safety guard for the previous eight years. Liukart, however, informed Holtz that a guard was indeed available if he chose to use one. In addition, he "advised [Holtz] of the potential harm that could occur if he was not careful with the machines." Nevertheless, Holtz was injured while operating the machine on May 18, 1989. No other employees were ever injured while using the jointer prior to this occasion.
After the accident, Liukart unsuccessfully attempted to contact Holtz throughout the next six weeks. In late June, Holtz appeared at the plant and informed Liukart that he could return to work on July 4, 1989. After Holtz missed several work days in December, Liukart informed Holtz on December 27, 1989 that he was terminated because of his "unreliability and lack of ability as a pattern maker."
OSHA conducted an inspection at Schutt's plant on September 5, 1989. The relevant results of the inspection provide that "at the time of the amputation injury the machine in question, an Oliver jointer, was being operated without a guard to prevent an entry into the danger area." A citation was thereafter issued to Schutt on September 12, 1989.
For his first assignment of error, appellant contends that:
"Where plaintiff-appellant put forth sufficient evidence that the defendant-appellee committed an intentional tort under R.C. Section 4121.80, it is error for the trial court to grant defendant Schutt Pattern Works Company's motion for summary judgment.
"A. First Issue Presented
"Whether defendant-appellee's acts and omissions constituted such intent to injure plaintiff-appellant in violation of R.C. Section 4121.80.
"B. Second Issue Presented
"Whether defendant-appellee's admission that said Oliver Jointer Wood-Stripping Machine was equipped with an attached guard in place and that at the time of plaintiff-appellant's injury such guard was not present and where defendant-appellee told plaintiff-appellant that a 'guard was available if he desired to use it,' is prima facie evidence that defendant-appellee acted in violation of R.C. Section 4120.80.
"C. Third Issue Presented
"Whether the trial court erred in granting defendant-appellee's motion for summary judgment when
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