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Volter v. C. Schmidt Co.5/8/1991
rt in this case. viewing the inferences to be drawn from the record in a light most favorable to Volter, see Civ.R. 56; Williams v. First United Church, supra, we cannot conclude, as a matter of law, that Schmidt's act of tying the hand restraints to the top of the machine, or its omission when it failed to equip the machine with safety restraints, constituted an intentional tort. The record does not show that Volter's settlement with Schmidt included any stipulation by either party that the employer's acts or omissions were intentional, and the pleading directed to Schmidt cannot be considered binding with regard to Volter's action against Cincinnati, Inc. See Civ.R. 8(A). Further, althougsthe expert testimony contained in the deposition of Gerald Rennell falls within Evid.R. 702, which provides for expert testimony if scientific, technical or other special knowledge will assist a trier of fact to understand the evidence or to determine a fact in issue, Rennell's expertise does not extend so far as to be conclusive upon a trier of fact in determining the ultimate issue of whether Cincinnati, Inc. committed an intentional tort. See Evid.R. 702, and Staff Note; Civ.R. 56(C). Cf. Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881, paragraph three of the syllabus.
In light of the foregoing, we hold that there exists a genuine question of material fact as to whether the failure to equip the press brake with safety devices and the violation of OSHA and ANSI standards by Schmidt constituted an intervening act which completely superseded the effect of the alleged defect present in the press brake at the time it left the manufacturer's hands. This question of fact, in addition to the question concerning the existence of a design defect, precluded summary judgment and, accordingly, we reverse the judgment of the trial court and remand this cause for further proceedings in accordance with this decision and the law.
Judgment reversed and cause remanded.
SHANNON, P.J., KLUSMEIER and HILDEBRANDT, JJ., concur.
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