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Dirksing v. Blue Chip Architectural Products11/7/1994
sing safety belts and lanyards as fall protection; all of this in spite of the company being cited for failure to use safety belts properly as fall protection. The specific failures to even know of the most basic requirementsmakes it clear that the argument made by Blue Chip Architectual Products, Inc. that safety belts are only required when an employee is somehow `working directly over the hole' is a ludicrous and unbelievable contention. In more than 20 years of safety and health experience in the construction industry, I have never heard anyone take this position and it is difficult to give it any credence at all.
"* * *
" he mode of doing business, as exhibited by Blue Chip Architectual Products, Inc., i.e. in delegating their safety compliance to Raymond `Mike' Monk, who does not exhibit the necessary understanding of the OSHA regulations applicable to skylights, creates a substantial certainty that the continued corporate safety policy of requiring safety belt and lanyard use only when working directly over the skylight opening will result in harm or death to employees.
"* * *
"Additionally, I have reviewed the certified copy of the OSHA violation histories for Welling & Co.; Blue Chip Architectual Products, Inc. and Blue Chip Erectors. A corporation that has been cited for past OSHA fall protection violations * * *, yet continues to fail to comply with OSHA fall protection regulations, creates a substantial certainty to cause harm to an employee of said corporation."
The trial court did not even mention the expert opinions in its decision. Appellees argue that the expert opinions do not preclude summary judgment. However, these arguments are simply attacks on the experts' credibility.
Appellees also argue that evidence of prior OSHA violations is not relevant to the issue of whether an employer committed an intentional tort. Appellees rely upon Ganobcik v. Industrial First, Inc. (1991), 72 Ohio App.3d 619, 595 N.E.2d 951, in which the executor of the estate of an employee who fell while working on a construction site sued the employer for intentional tort. The case went to trial and the jury returned a verdict in favor of the employer. On appeal, the executor argued that the trial court erred in excluding evidence that the employer had been cited several times by OSHA for failing to provide fall protection. The Eighth District Court of Appeals held that the trial court did not abuse its discretion since "the five proffered citations were not shown to have factual similarity to this matter, and therefore were not demonstrated to have probative value." Id. at 629, 595 N.E.2d at 958.
We do not find Ganobcik to be persuasive, and we decline to follow it. We can find no other case citing it for the proposition that previous OSHA citations are not relevant. Our view is that the concerns expressed by the Ganobcik court go more toward the weight of the evidence than its relevance. Appellant presentesevidence tending to show that Welling, BCAP, and BCE were all alter egos of Keith Smith. Therefore, this court finds that evidence of prior OSHA citations is relevant to the issue of Dirksing's employer's knowledge.
Additionally, appellees place great reliance on the fact that Keith Smith's sons were also on the root However, Mark Smith was tied off and Brant Smith was assigned to work on a skylight that was already filled with glass. Dirksing was assigned to help, and he was the only employee likely to be moving about the root Construing the circumstantial evidence most strongly in appellant's favor, we conclude that reasonable minds could differ as to whether Dirksing's employer knew that an injury was sub
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