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Dirksing v. Blue Chip Architectural Products11/7/1994
"2. To establish an intentional tort of an employer, proof beyond that required to prove negligence and beyond that to prove recklessness must be established. Where the employer acts despite his knowledge of some risk, his conduct may be negligence. As the probability increases that particular consequences may follow, then the employer's conduct may be characterized as recklessness. As the probability that the consequences will follow further increases, and the employer knows that injuries to employees are certain or substantially certain to result from the process, procedure or condition and he still proceeds, he is treated by the law as if he had in fact desired to produce the result. However, the mere knowledge and appreciation of a risk--something short of substantial certainty--is not intent. * * *"
The elements of an intentional tort may be proven by circumstantial evidence. Adams v. Aluchem, Inc. (1992), 78 Ohio App.3d 261, 264, 604 N.E.2s254, 255-256. Appellant's evidence, if believed, shows that on the day of the accident, Dirksing was assisting Keith Smith's sons, Mark and Brant, as they worked on two skylights. Dirksing was working with Brant Smith in finishing a nearly completed skylight when Mark Smith asked Dirksing to help move a piece of plywood that Mark Smith had been kneeling on while working on the other skylight. That skylight was only partially covered with glass. Mark Smith, who was the only one wearing a safety belt, turned away from Dirksing as he prepared to move the plywood. When Mark Smith heard Dirksing say something, he turned around to see Dirksing falling backward through the skylight to the floor of the atrium below.
Before the start of skylight installation, Messer had asked Welling to put up planking or safety nets. Welling, to Messer's satisfaction, had replied that employees would be tied off using safety belts and lanyards. Mike Monk was the supervisor in charge on the day of the accident. Although Monk claimed to be familiar with OSHA regulations, he testified that only someone working directly over an opening needed to use a safety belt. Therefore, Mark Smith was the only employee who was tied off. However, OSHA regulations state that anyone working within six feet of an opening should be tied off. In fact, testimony showed that there was no place to which a safety belt could be properly attached. Mark Smith was tied off to the skylight frame, which is improper under OSHA regulations. Further, there was a twenty-one to twenty-four inch guardrail around the skylight which would hit the average person at the knee, and the roof was made of corrugated metal which could be slippery.
Monk had hired Dirksing and provided him with only general safety information. Monk was not up on the roof when the accident occurred, although he had been there earlier that day. Tom Estes, the most experienced employee, had left the roof to work on an equipment problem, leaving behind only Dirksing and Brant Smith, both of whom were inexperienced, and Mark Smith, who had a couple of years' field experience.
Appellant also presented evidence that Welling, BCAP, and BCE have histories of OSHA violations, some of which were for failure to provide guardrails and failure to provide adequate fall protection. Appellant presented the affidavits and depositions of two well-qualified experts who stated that, given BCAP's policies, a fall was only a matter of time. One stated in his affidavit:
"Monk was obviously not familiar with safety belts, life lines, and lanyards. His depositions clearly indicated he did not even now how to put a safety belt on properly and how to use the lanyards. Monk seems to be unaware of the basic requirements for u
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