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Dixon v. Gen. Motors Corp.6/13/1994
reference to notice pleading under Civ.R. 8, it is apparent that plaintiff has not plead a workplace intentional tort. While it must be acknowledged that a complaint is to be liberally construed to do substantial justice and merely a "short plain statement" of facts entitling one to relief is all that is required, clearly this third amended complaint lacks a statement of specific facts showing the employer' intent to injure or knowledge that the injury was substantially certain to occur. Mitchell v. Lawson Milk Co., (1988), 40 Ohio St.3d 190, 532 N.E.2d 753. Indeed, in reviewing plaintiff's allegations in light of Lawson Milk, it is apparent that plaintiff cannot succeed. Under Lawson Milk and Civ.R. 8, plaintiff has stated no cause of action in workplace intentional tort against GMC. Lest plaintiff compare this result to the "rigid and arcane rules of code pleading," it should be noted that before the court is a third amended complaint and a defendant who has once been dismissed. Furthermore, plaintiff s initial complaint, in contrast with the second and third amended complaints did give notice of an intentional tort claim.
Even if plaintiff's allegations were somehow stretched to encompass a Blankenship claim, it is apparent on the evidence before the court that the plaintiff could not prevail. While GMC would bear the burden of establishing that no genuine issue of material fact exists on its motion for summary judgment, Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 8 O.O.3d 73, 375 N.E.2d 46. Van Fossen v. Babcock & Wilcox, supra, recognizes the Civ.R. 56(E) requirement that a party set forth specific facts showing a genuine issue for trial in order to avoid summary judgment. Even construed most strongly in favor of plaintiff, the evidence before the court falls far short of the three-pronged test announced in Van Fossen, supra, and modified by Jeno's, supra.
The instant case is strikingly similar to McCreery v. Cent. Foundry Div., Gen. Motors Corp., Defiance County Court of Common Pleas, case No. 30343, cited by GMC as supplemental authority. In neither McCreery, nor the instant case, could plaintiff conceivably prove that GMC knew injury to the employee was substantially certain to occur and required the employee to continue to perform the dangerous task. If distinguishable from McCreery, the instant case even more clearly requires a grant of summary judgment. As in Sizemore v. Dresser industries, Inc., Defiance App. No. 988-55, unreported, 1990 WL 252221, the lack of any prior similar incidents is of great significance in this matter. Indeed nothing appears in the evidence to suggest that the work to be performed by Mr. Dixon could have been expected to be anything other than "routine" and "safe" as characterized by his co-workers.
While certainly tragic, Mr. Dixon's death was not the result of any intentional tort on the part of GMC, as that term has been defined in Ohio law.
Based on all the foregoing, it is apparent that GMC is entitled to judgment as a matter of law, and it is therefore ORDERED, ADJUDGED and DECREED that the plaintiff's claims be dismissed, with prejudice. Costs to plaintiff.
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