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Dirksing v. Blue Chip Architectural Products11/7/1994
KOEHLER, Judge.
Plaintiff-appellant, William P. Dirksing, administrator of the estate of John L. Dirksing ("Dirksing"), deceased, appeals a decision of the Butler County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Blue Chip Architectural Products, Inc. ("BCAP"); Blue Chip Erectors, Inc. ("BCE"); Welling and Co. ("Welling") and its successor WCI/Waltek ("Waltek")(fn1); Frank Messer and Sons Construction Co. ("Messer"); and Keith G. Smith.
Dirksing, appellant's decedent, was a college student working during the summer as a "helper" for BCAP on the Champion Paper Knightsbridge construction project. On May 18, 1990, Dirksing died after falling through a skylight. He was not wearing a safety belt and there were no safety nets under the skylight.
Messer was the general contractor on the Knightsbridge project. Messer subcontracted with Welling for the installation of the skylights. Welling, in turn, contracted with BCAP to do the labor. BCAP and BCE do the actual field work for projects in which Welling is involved. Keith Smith is an officer and/or shareholder in Welling, BCAP and BCE.
Appellant, Dirksing's father, filed a wrongful death action against BCAP, BCE, Welling, and Messer, alleging causes of action for intentional tort and negligence. Subsequently, appellant sought leave to file an amended complaint naming Keith Smith as an additional defendant and adding claims that (1) BCAP could be held liable for negligence because the Ohio Bureau of Workers' Compensation had paid no compensation for Dirksing's death and therefore BCAP was not entitled to immunity under the workers' compensation statutes; (2) Welling, BCE, and Keith Smith could be held liable on an "alter ego" theory for BCAP's negligence; and (3) Welling, BCE, and Keith Smith could be held liable for their own negligence. The trial court never specifically granted appellant leave to file the amended complaint. However, it did address the issues raised in the amended complaint on motions for summary judgment. The trial court granted summarsjudgment in favor of all defendants on all issues raised by appellant. This appeal followed.
Appellant presents seven assignments of error for review. We will address the issues raised by appellant by subject matter and therefore will address the assignments of error out of order.
In his first assignment of error, appellant states that the trial court erred in granting summary judgment in favor of BCAP, BCE, Welling, and Keith Smith on the issue of intentional tort. Appellant argues that reasonable minds could differ as to whether Dirksing's employer knew that injury was substantially certain to occur. We find this assignment of error to be well taken.
The standard for proving an intentional tort is set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraphs one and two of the syllabus, which states:
"1. * * * n order to establish `intent' for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must 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. * * *
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