[Cite as Schiemann v. Foti Contracting, L.L.C., 2013-Ohio-269.]




                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98662


                        ROBERT SCHIEMANN, ET AL.
                                                  PLAINTIFFS-APPELLANTS

                                                     vs.

                  FOTI CONTRACTING, L.L.C., ET AL.
                                                  DEFENDANTS-APPELLEES



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                               Cuyahoga County Common Pleas Court
                                      Case No. CV-730877

             BEFORE:           Blackmon, J., Stewart, A.J., and Jones, J.

             RELEASED AND JOURNALIZED:                            January 31, 2013
ATTORNEYS FOR APPELLANTS

Stephen S. Vanek
Jeffrey H. Friedman
Friedman, Domiano & Smith Co.
55 Public Square, Suite 1055
Cleveland, OH 44113

David R. Grant
Plevin & Gallucci Company, L.P.A.
55 Public Square, Suite 2222
Cleveland, OH 44113




ATTORNEYS FOR APPELLEE

Jan L. Roller
Megan D. Stricker
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, E.
Cleveland, OH 44114




PATRICIA ANN BLACKMON, J.:
       {¶1} Appellants Robert Schiemann and Joana Schiemann (“the Schiemanns”)

appeal from the trial court’s granting of summary judgment in favor of appellee Foti

Contracting, L.L.C. (“Foti”).1 They assign the following error for our review:

       The trial court erred when it granted summary judgment in favor of

       Appellee Foti Contracting, L.L.C.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

judgment. The apposite facts follow.

                                           Facts

       {¶3} Robert Schiemann was employed by Foti intermittently since 1993. Foti is

an independent subcontractor of Panzica Construction Company (“Panzica”). Panzica

had hired Foti to provide masonry services at a project located at 1211 St. Clair Avenue in

Cleveland, Ohio. On July 8, 2008, Schiemann was working with the stone masons who

were laying stone on the exterior of a building. His duties included raising the scaffold’s

work platform on which the masons stood to perform their work.              Schiemann was

working 18 feet above the ground, raising the platform from the third to the fourth level

when he lost his balance and fell forward through the approximately three-foot gap

between the front of the scaffold and the face of the building and sustained injuries.

       {¶4} On July 2, 2010, the Schiemanns filed an employer intentional tort lawsuit

against Foti pursuant to R.C. 2745.01(A) and (C).2 They contended that an intentional


       The Schiemanns’ complaint originally also included Panzica Construction,
       1

but the Schiemanns later voluntarily dismissed Panzica from the case without
prejudice.
tort occurred because Foti did not provide Schiemann with a safety harness and the

scaffolding lacked a guardrail in the area facing the building and side rails to prevent

Schiemann from falling.

       {¶5} Foti filed a motion for summary judgment in which it argued that it did not

have the requisite deliberate intent necessary for a successful intentional tort claim. It

argued that it provided intensive safety training to its employees regarding the erection of

scaffolds in the form of written materials and videos.        Foti also conducted weekly

“toolbox safety talks” at which fall prevention was a topic that was covered.

       {¶6} Schiemann also stated in his deposition that he had also participated in

classes conducted by Foti regarding the correct way to erect scaffolding.       Foti also sent

him to a four hour safety seminar on the erection of scaffolding conducted by OSHA.

Schiemann had erected scaffolding “many times” before the accident without using a

safety harness. He stated that he would not have used a harness even if one had been

offered because he felt it was not needed to complete his job safely. He testified that in

his experience in the industry, he did not recall ever seeing an employee of Foti’s or other

contractors wearing a harness when erecting scaffolding. He also admitted that if he

asked for a harness, Foti would have provided one.

       {¶7} The Schiemanns opposed the motion arguing that the intentional tort statute

has two levels of intent: one that requires the employer to have a “deliberate intent” to


       2
           The Schiemanns also alleged a claim for loss of consortium on behalf of
Joana.
injure, and one that only required that the employer have an “intent to injure.” They

argued that the evidence met the lower standard of “intent to injure” because Foti failed to

abide by OSHA’s requirement that fall protection and guardrails be provided to

Schiemann.

       {¶8} In an eight-page opinion, the trial court entered summary judgment in favor

of Foti. The court noted that Schiemann admitted in his deposition that if he desired a

harness, Foti would have provided one for him. The court also found that although “Foti

did not strictly require employees to wear fall protection gear, its actions do not rise to the

level required for recovery under Ohio’s employer intentional tort statute.” The court

also concluded that Foti did not specifically direct Schiemann to perform his job in a

dangerous way.

                             Motion for Summary Judgment

       {¶9} In their sole assigned error, the Schiemanns argue that the trial court erred

by granting summary judgment under the intentional tort statute.

       {¶10} We review an appeal from summary judgment under a de novo standard of

review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio

Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.

Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine issue as to any
material fact exists, (2) the party moving for summary judgment is entitled to judgment as

a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving

party, reasonable minds can reach only one conclusion that is adverse to the nonmoving

party. We conclude the trial court did not err by granting summary judgment as a matter

of law in favor of Foti.

       {¶11} A cause of action for an employer intentional tort is governed by R.C.

2745.01, enacted in 2005, which provides:

       (A) In an action brought against an employer by an employee * * * for
       damages resulting from an intentional tort committed by the employer
       during the course of employment, the employer shall not be liable
       unless the plaintiff proves that the employer committed the tortious act
       with the intent to injure another or with the belief that the injury was
       substantially certain to occur.

       (B) As used in this section, “substantially certain” means that an
       employer acts with deliberate intent to cause an employee to suffer an
       injury, a disease, a condition, or death.

       (C) Deliberate removal by an employer of an equipment safety guard

       or deliberate misrepresentation of a toxic or hazardous substance

       creates    a    rebuttable    presumption      that   the    removal     or

       misrepresentation was committed with intent to injure another if an

       injury or an occupational disease or condition occurs as a direct result.

       {¶12} The Ohio Supreme Court in Stetter v. R.J. Corman Detailment Servs.,

L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, N.E.2d 1092, stated that the Ohio General

Assembly, in enacting R.C. 2745.01, as expressed particularly in subsection (B), meant to

“significantly curtail an employee’s access to common-law damages” and “permit
recovery for employer intentional torts only when an employer acts with specific intent to

cause injury.” Id. at 284. (Emphasis in original.)

       {¶13} Schiemann relies on this court’s opinions in Houdek v. ThyssenKrupp

Materials, 8th Dist. No. 95399, 2011-Ohio-1694, and Hewitt v. The L.E. Myers Co., 8th

Dist. No. 96138, 2011-Ohio-2960, in arguing summary judgment was improperly granted.

 However, both cases have been recently reversed by the Ohio Supreme Court.

       {¶14} In Houdek, this court concluded that the new intentional tort statute created

two types of intent: “intent to injure” and “deliberate intent to injure.” We held that the

employer could be found liable for an employee’s injuries under the “intent to injure”

standard, if it “objectively believed the injury [to the employee] was substantially certain

to occur,” even if there was a lack of proof of deliberate intent to injure. Houdek at ¶

46.   We concluded that the legislature committed a “scrivener’s error” by defining

“substantially certain” in section (B) to mean “deliberate intent” because the terms are not

synonymous and are in “a state of harmonic dissonance.” Id. at ¶ 42.

       {¶15} The Ohio Supreme Court disagreed and reversed our decision. Houdek v.

Thyssen Krupp Materials, Slip Opinion No. 2012-Ohio-5685. The Ohio Supreme Court

held that the statute requires one intent: that the employer have a deliberate intent to

injure the employer. The court explained as follows:

       [I]n Stetter, we observed that “R.C. 2745.01 embodies the General
       Assembly’s intent to significantly curtail an employee’s access to
       common-law damages for what we will call a ‘substantially certain’
       employer intentional tort.” Stetter at ¶ 27.
      It is therefore manifest that R.C. 2745.01(B) is not the result of a
      scrivener’s error. As we stated in both Kaminski and Stetter, the
      General Assembly intended to limit claims for employer intentional
      torts to situations in which an employer acts with the “specific intent”
      to cause an injury to another. Kaminski at ¶ 26; See also 6 Larson’s
      Workers’ Compensation Law, Section 103.03, 103-7 to 103-8 (2001)
      (explaining that an employer’s “knowingly permitting a hazardous
      work condition to exists [and] knowingly ordering employees to
      perform an extremely dangerous job * * * falls short of the kind of
      actual intention to injure that robs the injury of accidental character.”
      (footnotes omitted).

      In accord with this authority, absent a deliberate intent to injure

      another, an employer is not liable for a claim alleging an employer

      intentional tort, and the injured employee’s exclusive remedy is within

      the workers’ compensation system.        Id. at ¶ 23-25.

      {¶16} The court further explained that R.C. 2745.01 appears to harmonize the

intentional tort law of Ohio with that of the majority of jurisdictions and quoting 6

Larson’s Workers’ Compensation Law Section 103.03 (2008) stated:

      [T]he common-law liability of the employer cannot, under the almost
      unanimous rule, be stretched to include accidental injuries caused by
      gross, wanton, wilful, deliberate, intentional, reckless, culpable, or
      malicious negligence, breach of statute, or other misconduct of the
      employer short of a conscious and deliberate intent directed to the
      purpose of inflicting injury. Houdek at ¶ 23.

      {¶17} Thus, it appears under current Ohio law, that without showing evidence of a

history of animosity or ill-will between the employer and employee that would support

evidence of a subjective intent by the employer to injure the employee, an intentional tort

claim will not lie. The evidence does not support such a conclusion. Foti held weekly

safety talks and conducted classes on the erection of scaffolding and provided written
materials and videos to employees on fall safety. Foti also sent Schiemann to a four hour

OSHA safety seminar regarding fall hazards. These actions show Foti was proactive

about the employee’s safety in erecting scaffolding and that it wanted to prevent injuries

from occurring.

       {¶18} Although the safety harnesses were removed from the construction site a

day before the accident, Schiemann admitted that if he had asked for a harness, Foti

would have provided him with one. Moreover, Schiemann admitted that even if the

harnesses were on the construction site, he would not have worn one because he had

never worn one before when erecting scaffolding and, in fact, did not believe one was

necessary to complete his job safely.

       {¶19} Additionally, no one had ever fallen or been injured on Foti’s job sites while

performing the task that Schiemann was performing before his fall. Foti crew members

testified that raising the platforms is more dangerous if it is done while wearing a safety

harness because the harness gets in the way causing tripping hazards. In fact, Foti

personnel believed it was safer to not wear a safety harness while performing the task in

question. Therefore, based on these facts, we cannot say Foti had the deliberate intent to

injure Schiemann.

       {¶20} Schiemann also relies on our case in Hewitt to contend that the trial court

erred by granting summary judgment on his claim pursuant to R.C. 2745.01(C).

Subsection (C) concerns the removal of safety guards. Schiemann argues that the safety

harness and guardrail constitute “safety guards” under the statute.
       {¶21} Hewitt was also recently reversed by the Ohio Supreme Court. Hewitt v.

L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317. The Ohio Supreme Court in Hewitt

held that:

       As used in R.C. 2745.01(C), “equipment safety guard” means a device

       designed to shield the operator from exposure to or injury by a

       dangerous aspect of the equipment, and the “deliberate removal” of an

       equipment safety guard occurs when an employer makes a deliberate

       decision to lift, push aside, take off, or otherwise eliminate that guard.

       {¶22} The Hewitt Court concluded that the employer was not liable for failing to

provide rubber gloves to an employee working on electrical lines. In construing the

statute, the court defined “safety guard” by using the plain meaning of the words. In

doing so, the court concluded that “safety guard” did not include all devices designed to

prevent injury, but includes only devices on equipment designed to shield the operator

from exposure or injury by the equipment. The court explained:

       To construe “equipment safety guard” to include any generic
       safety-related item ignores not only the meaning of the words used but
       also the General Assembly’s intent to restrict liability for intentional
       torts. As the Ninth District observed in Barton v. G.E. Baker Constr.,
       2011-Ohio-5704, ¶ 11, “[f]rom these common dictionary definitions, it
       becomes apparent that not all workplace safety devices are ‘equipment
       safety guards’ as that term is used in Section 2745.01(C).

       A broad interpretation of the phrase does not comport with the
       General Assembly’s efforts to restrict liability for intentional tort by
       authorizing recovery “only when an employer acts with specific
       intent.” Stetter v. R.J. Corman Derailment Servs., LLC, 125 Ohio St. 3d
       280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 26; Kaminski v. Metal & Wire
       Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 56.
      As we explained in Kaminski, the statutory restriction of
      intentional-tort liability “is supported by the history of employer
      intentional-tort litigation in Ohio and by a comparison of the current
      statute to previous statutory attempts.” Id. ¶ 57. It is not our role to
      second-guess the policy matters set by the General Assembly. Stetter at
      ¶ 35. Consequently, we refrain from expanding the scope of the
      rebuttable presumption of intent in R.C. 2745.01(C).

      Free-standing items that serve as physical barriers between the
      employee and potential exposure to injury, such as rubber gloves and
      sleeves, are not “an equipment safety guard” for purposes of R.C.
      2745.01(C). Instead, rubber gloves and sleeves are personal protective
      items that the employee controls. We adopt the definition in Fickle and
      hold that as used in R.C. 2745.01(C), “equipment safety guard” means
      “a device that is designed to shield the operator from exposure to or
      injury by a dangerous aspect of the equipment.” Fickle, ¶ 43. Id. at ¶
      24 and 25.

      {¶23} Our reading of Hewitt leads us to conclude that the Schiemanns’ case is not

a subsection (C) case. In fact, Schiemann admitted if he requested a harness, one would

have been provided and that he would not have worn a safety harness even if provided.

The harness is more akin to the rubber gloves in Hewitt in that it was under the

employee’s control whether to use one or not.

      {¶24} The fact that the scaffolding failed to have a midlevel guardrail on the area

facing the building and did not have side rails also does not create a subsection (C) case.

There is no evidence that the scaffolding ever had a guardrail or side rails that were

removed by Foti. Moreover, the Ohio Supreme Court has held that the violation of an

OSHA regulation does not in itself create an intentional tort. Hernandez v. Martin

Chevrolet, Inc., 72 Ohio St.3d 302, 303, 1995-Ohio-200, 649 N.E.2d 1215.                In

Hernandez, the Supreme Court held, “Congress did not intend OSHA to affect the duties
of employers owed to those injured during the course of their employment.” Thus, any

OSHA violations do not factor into the determination of whether Foti acted with

deliberate intent to harm Schiemann. Id.; see also Hristovski v. The Bard Mfg. Co., 6th

Dist. No. WM-03-022, 2004-Ohio-3984, ¶ 13.         Accordingly, based on the recent case

law handed down from the Ohio Supreme Court, the Schiemanns’ sole assigned error is

without merit and is overruled.

      {¶25}    Judgment affirmed.

      It is ordered that appellees recover from appellants costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MELODY J. STEWART, A.J., and
LARRY A. JONES, SR., J., CONCUR
