[Cite as Rivers v. Otis Elevator, 2013-Ohio-3917.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99365



                            DOROTHY RIVERS, ET AL.
                                                           PLAINTIFFS-APPELLANTS

                                                     vs.

                              OTIS ELEVATOR, ET AL.



                                             JUDGMENT:
                                              AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-747945


        BEFORE: E.T. Gallagher, J., Keough, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 12, 2013
ATTORNEYS FOR APPELLANTS

Bruce D. Taubman
Brian Taubman
Taubman Law
55 Public Square
Suite 1670
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

William H. Falin
Seamus J. McMahon
Moscarino & Treu, L.L.P.
The Hanna Building
1422 Euclid Avenue, Suite 630
Cleveland, Ohio 44115
EILEEN T. GALLAGHER, J.:

       {¶1} Plaintiffs-appellants, Dorothy (“Dorothy”) and Thomas (“Thomas”) Rivers

(collectively referred to as “appellants”), appeal from a summary judgment granted in

favor of defendant-appellee Marymount Hospital (“Marymount”). We find no merit to

the appeal and affirm.

       {¶2} Appellants filed suit to recover damages they sustained when Dorothy tripped

and fell while stepping onto elevator number six (“the elevator”) at Marymount, where

Dorothy was employed as a housekeeper. On the day of the incident, Dorothy came to

work as usual and punched the time clock at 7:00 a.m. to begin her shift. At 9:45 a.m.,

Dorothy pushed a hallway button to call for an elevator to go from the fourth floor to the

first floor cafeteria for her 15 minute break. As Dorothy began to enter the elevator, she

tripped and fell into the elevator and sustained injuries to her hand, knee, and neck.

Dorothy testified at deposition that after she fell, she noticed that the bottom of the

elevator was not level with the floor.

       {¶3} Dorothy pursued a workers’ compensation claim for her injuries.           She

completed and signed an Ohio Bureau of Workers’ Compensation (“BWC”) “First Report

of an Injury, Occupational Disease or Death,” form, acknowledging that she sustained her

injuries while in the course and scope of her employment.           Marymount certified

Dorothy’s workers’ compensation claim to the BWC for administration, and Marymount

paid Dorothy a total of $61,527.42 in workers’ compensation benefits.
       {¶4} In the complaint, appellants alleged that Otis Elevator and Marymount

negligently failed to maintain the elevator in a safe condition. They also alleged that

Dorothy’s receipt of workers’ compensation benefits did not bar her negligence claim

against Marymount because, at the time of her fall, Marymount was acting in a

“dual-capacity” as both employer and non-employer. Thomas sought recovery based on

a derivative claim for the loss of his wife’s “society, comfort, companionship, and

consortium.”

       {¶5} Appellants settled their claims against Otis Elevator for $15,000 and

subsequently amended their complaint to assert an employer intentional tort claim against

Marymount.      Marymount answered the complaint and filed a counterclaim for

subrogation seeking recovery of the full amount of the workers’ compensation benefits it

paid to appellants. Marymount alleged that appellants failed to provide Marymount with

prior notice of their settlement with Otis Elevator.

       {¶6} The trial court granted summary judgment in favor of Marymount on all of

appellants’ claims. It also granted summary judgment in favor of Marymount on its

counterclaim for subrogation. The trial court entered judgment in favor of Marymount in

the amount of $61,527.42. Appellants now appeal and raise five assignments of error.

                                   Standard of Review

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

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

The party moving for summary judgment bears the burden of demonstrating the absence

of a genuine issue of material fact as to the essential element of the case with evidence of
the type listed in Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264

(1996). Once the moving party demonstrates that she is entitled to summary judgment,

the burden shifts to the nonmoving party to produce evidence related to any issue on

which the party bears the burden of production at trial. See Civ.R. 56(E).

       {¶8} Civ.R. 56(C), provides that summary judgment is appropriate when, after

construing the evidence most favorably for the party against whom the motion is made,

reasonable minds can only reach a conclusion that is adverse to the nonmoving party.

Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998).

                                    Dual-capacity Doctrine

       {¶9} In their first assignment of error, appellants argue the trial court erroneously

found the dual-capacity doctrine inapplicable.      They contend that Marymount acted

simultaneously as Dorothy’s employer and as a “non-employer” when it allowed Dorothy

to use a general public elevator.

       {¶10} Under Ohio law, employers who comply with the Workers’ Compensation

Act are granted immunity from civil liability for unintentional employment-related

injuries. In relevant part, R.C. 4123.74 states: “Employers who comply with Section

4123.35 of the Revised Code shall not be liable to respond to damages at common law or

by statute for any injury * * * received or contracted by any employee in the course of or

arising out of his employment.”

       {¶11} However, an employer’s immunity from liability to its employees under the

workers’ compensation scheme may not apply if the employer occupies a second persona

or capacity in relation to the employer. Guy v. Arthur H. Thomas Co., 55 Ohio St.2d
183, 378 N.E.2d 488 (1978). In Guy, the Ohio Supreme Court held that a hospital

employee could maintain a medical malpractice action against the hospital

notwithstanding the immunity from civil liability provided by the workers’ compensation

system. The court reasoned that by providing medical treatment to the employee, the

employer-hospital assumed traditional obligations attendant to a hospital-patient

relationship, which are “unrelated to and independent of those imposed upon it as an

employer.” Id. at syllabus.

       {¶12} The Ohio Supreme Court subsequently refined the dual-capacity doctrine in

Freese v. Consol. Rail Corp., 4 Ohio St.3d 5, 445 N.E.2d 1110 (1983), Bakonyi v. Ralston

Purina Co., 17 Ohio St.3d 154, 478 N.E.2d 241 (1985), and Schump v. Firestone Tire &

Rubber Co., 44 Ohio St.3d 148, 150, 541 N.E.2d 1040 (1989). In Freese, the court held

that the dual-capacity doctrine was unavailable to a police officer who was injured while

riding a motorcycle on city streets during the course and scope of his employment. The

court concluded that the city’s statutory duty to keep its streets clear and free of nuisance

did not “generate obligations to this employee independent of and unrelated to the city’s

obligations as an employer.” Id. at 11.

       {¶13} In Bakonyi, an employee was injured while working in a greenhouse when

liquid fertilizer was sprayed in his eyes. The employer had purchased the liquid fertilizer

for use in its own greenhouse operations as well as for sale to the public. The employee

argued the dual-capacity doctrine should apply because the employer was engaged in the

public sale of the fertilizer. The court rejected the employee’s argument, explaining:

       The [employer] was not a manufacturer of a product for public sale but
       rather was both a consumer and distributor. As such, the two purposes of
       [the employer’s] use of the product had differing obligations attached to
       them. The appellant was injured by the employment use, not the public sale
       use. As we observed in Freese, supra, at 11: “* * * [W]hat must be
       determined is whether the employer stepped out of his role as such, and
       assumed another hat or cloak. If the facts would show the latter, the
       employer has accordingly assumed another capacity and also has assumed
       independent obligations to his employee unrelated to the obligations arising
       out of the employer-employee relationship.” In this case, we find that
       [employer] had not assumed another capacity to the appellant and that the
       employment relationship predominated.

Bakonyi at 157.

       {¶14} In Schump, the employee was injured while operating a truck in the course

of his employment, when one of the truck’s tires, which was manufactured by the

employer, blew out. In determining whether the dual-capacity doctrine applies, the court

in Schump explained:

       The decisive dual-capacity test is not concerned with how separate or
       different the second function of the employer is from the first, but whether
       the second function generates obligations unrelated to those flowing from
       that of the employer. This means that the employer must step outside the
       boundaries of the employer-employee relationship, creating separate and
       distinct duties to the employee; the fact of injury must be incidental to the
       employment relationship.


Schump, at 152, quoting Weber v. Armco, Inc., 1983 OK 53, 663 P.2d 1221, 1226-1227

(Okla.1983). In other words, the “dual-capacity doctrine” does not apply where the

employee seeks “to sue his employer for injuries which are predominately work-related,”

id. at 150.

       {¶15} Appellants rely on Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279, 361

N.E.2d 492 (6th Dist.1976), and Simpkins v. Gen. Motors Corp., 3 Ohio App.3d 275, 444

N.E.2d 1064 (2d Dist.1981), in support of their argument. In Mercer, the Sixth District
Court of Appeals held that where a hazard is not necessarily one of employment but is

one common the public in general, there is no causal connection between the employment

and the injury, and the Workmen’s Compensation Law of Ohio is not a bar from

recovering from that employer. Id. at 285-286. In Simpkins, the Second District Court

of Appeals, relying on Mercer, found that the injured employee could not recover under

the dual-capacity doctrine because he was injured by a hoist that was only used by

employees and was not available to the public. Simpkins at 277.

       {¶16} However, the Ohio Supreme Court’s decision in Schump implicitly

overruled Mercer and Simpkins.         The court noted that the facts in Schump were

“strikingly similar” to the facts of Mercer. It nevertheless decided not to adopt the

holding in Mercer, explaining that Mercer “represent[s] a view without support in any

other state aside from California.” Schump at 151. Furthermore, the Ohio Supreme

Court’s decisions in Freese, Bakonyi, and Schump direct us to look at the employer’s role

in relation to the employee rather than just the employee’s status in relation to the public.

       {¶17} Here, Dorothy testified at deposition that she was at Marymount solely for

purposes of work, and she was still “on the clock” at the time of the accident. She

admitted that although the elevator was available to the public, Marymount employees use

the elevator “all the time” as “part of their work.”          There was no evidence that

Marymount assumed any other persona besides that of employer with respect to Dorothy,

nor do appellants identify any other role Marymount played other than that of a

nondescript “non-employer.” Unlike Guy, Marymount did not assume the traditional

role of hospital to treat Dorothy as a patient nor was Dorothy a visitor of the hospital.
The undisputed evidence demonstrates that Dorothy’s injuries resulted from her

“employment use” of the elevator, and her injuries are “predominately work-related.”

Therefore, the dual-capacity doctrine was inapplicable.

       {¶18} The first assignment of error is overruled.

                                 Employer Intentional Tort

       {¶19} In the second assignment of error, appellants argue the trial court erred in

granting summary judgment to Marymount on her employer intentional tort claim when

there was evidence that Marymount deliberately intended to injure her. In the third

assignment of error, Dorothy argues the trial court erred in granting summary judgment to

Marymount where there was evidence that Marymount deliberately removed a safety

guard. We discuss these assigned errors together because they are closely related.

       {¶20} As previously stated, employees are generally limited to the remedy

provided under the Workers’ Compensation Act for injuries sustained in the workplace.

R.C. 4123.74. However, R.C. 2745.01(A) provides a limited exception for employer

intentional torts, and states:

       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.

For the purposes of this statute, the term “‘substantially certain’ means that an employer

acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition,

or death.” R.C. 2745.01(B).
       {¶21} In Stetter v. R.J. Corman Detailment Servs., L.L.C., 125 Ohio St.3d 280,

2010-Ohio-1029, 927 N.E.2d 1092, the Ohio Supreme Court stated that by enacting R.C.

2745.01, particularly 2745.01(B), the Ohio General Assembly 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 ¶ 24. Therefore, absent a deliberate intent to injure an employee, the

employer is not liable for employer intentional tort, and the injured employee’s exclusive

remedy is within the workers’ compensation system. Houdek v. Thyssenkrupp Materials

N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 23-25.

       {¶22} Appellants argue Marymount is liable for an intentional tort because “it

knew or should have known that the elevator was not working properly” and “elected to

continue to operate the elevator instead of shutting it down.” Dorothy submitted an

affidavit in support of her brief in opposition to Marymount’s motion for summary

judgment in which she states: “Marymount knew that the elevator wasn’t operating

properly on the day of her injury but elected to keep it in operation.”

       {¶23} Dorothy later contradicted her affidavit testimony at deposition when she

testified she did not know of any prior problems with the elevator and that no one ever

told her of any problems before the injury occurred. If an unexplained conflict exists

between a nonmoving party’s affidavit and deposition testimony, a trial court must

disregard the conflicting statements in the party’s affidavit when deciding a motion for

summary judgment.       Zitron v. Sweep-A-Lot, 10th Dist. Franklin No. 09AP-1110,

2010-Ohio-2733, ¶ 27.       A nonmoving party cannot avoid summary judgment by
submitting an uncorroborated and self-serving affidavit that contradicts the party’s

deposition testimony. Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d

47, ¶ 47. See also Davis v. Cleveland, 8th Dist. Cuyahoga No. 83665, 2004-Ohio-6621,

¶ 23. Therefore, Dorothy’s affidavit testimony fails to create a genuine issue of material

fact as to Marymount’s knowledge and intent with respect to the elevator’s operation.

       {¶24} Furthermore, Leonard Quinn (“Quinn”), who worked in Marymount’s

maintenance department, testified that complaints about the elevators come through the

maintenance department. According to Quinn, no one reported any problems with the

elevator, and he was not aware of any problems with the elevator the day Dorothy fell.

Although there had been a problem with one of the elevators a day or two before the

incident, Quinn testified that Otis Elevator repaired it, and personnel in the maintenance

department believed the elevators were working properly on the morning Dorothy was

injured.

       {¶25} Appellants also argue that Marymount’s refusal to shut down the elevator

amounted to a deliberate removal of a safety guard. Although R.C. 2945.01 requires

specific or deliberate intent to cause injury in order to recover on an employer intentional

tort claim, R.C. 2745.01(C) establishes a rebuttable presumption that the employer

intended to injure the worker if the employer deliberately removes a safety guard.

Houdek, 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 12.

       {¶26} In Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, 981

N.E.2d 795, the Ohio Supreme Court clarified the meaning of an “equipment safety

guard,” and defined it as “a device designed to shield the operator from exposure to or
injury by a dangerous aspect of the equipment.” Id. at syllabus. The court rejected any

more expansive interpretation that might include “any generic safety-related item” or

something besides a safety guard attached to machinery. Id. at ¶ 22, 24. Indeed, the

Ohio Supreme 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.” Decisions when to

shut down a public elevator do not fall within the limited definition of an “equipment

safety guard.” Therefore, there is no presumption that Marymount intended to injure

Dorothy.

      {¶27} Despite appellants’ statements to the contrary, there is no evidence that

Marymount made a deliberate decision to keep the elevator in operation knowing that it

was dangerous. Therefore, there is no evidence that Marymount intentionally harmed

Dorothy.

      {¶28} The second and third assignments of error are overruled.

                                   Loss of Consortium

      {¶29} In the fourth assignment of error, appellants argue the trial court erred in

dismissing Thomas’s loss of consortium claim.        A loss of consortium claim is a

derivative cause of action dependent upon the viability of the primary cause of action.

Tourlakis v. Beverage Distribs., 8th Dist. Cuyahoga No. 81222, 2002-Ohio-7252, citing

Lynn v. Allied Corp., 41 Ohio App.3d 392, 402, 536 N.E.2d 25 (8th Dist.1987). Since

Dorothy failed to prove any of her claims against Marymount, Thomas’s loss of

consortium claim must also fail.
       {¶30} The fourth assignment of error is overruled.

                                       Subrogation

       {¶31} In the fifth assignment of error, appellants argue the trial court erred in

granting judgment in favor of Marymount on its counterclaim for subrogation against

Dorothy in the amount of $61,527.42. They contend the judgment should have been

limited to the $15,000 it received from Otis Elevator.

       {¶32} R.C. 4123.931 provides a self-insured employer, who pays workers’

compensation benefits to an injured employee, a statutory right of subrogation against any

third party who is or may be liable to the claimant for damages sustained during the

employee’s course and scope of employment. R.C. 4123.931(G), requires that a claimant

provide prior notice to a statutory subrogee of all third parties against whom the claimant

has or may have a right to recover. The statute further provides that “[n]o settlement,

compromise, judgment, award, or other recovery in any action or claim by a claimant

shall be final unless the claimant provides the statutory subrogee * * * with prior notice

and a reasonable opportunity to assert its subrogation rights.” Most importantly, the

statute states:

       If a statutory subrogee * * * [is] not given notice, or if a settlement or
       compromise excludes any amount paid by the statutory subrogee, the third
       party and the claimant shall be jointly and severally liable to pay the
       statutory subrogee the full amount of the subrogation interest.

Thus, although the employer’s right to subrogated recovery is generally limited to the “net

amount” of the employee’s recovery from the third party, R.C. 4123.931 expressly

provides that the employee and third party are jointly and severally liable to the employer
for the “full amount” of the employer’s “subrogated interest,” if the employee settles her

claim against the third party

without providing prior notice to the employer. Bur. of Workers’ Comp. v. Williams, 180

Ohio App.3d 239, 2008-Ohio-6685, 905 N.E.2d 201, ¶ 13-16 (10th Dist.).

       {¶33} It is undisputed that, (1) Marymount is a self-insured employer; (2)

Marymount paid $61,527.42 to Dorothy for her work-related injuries; (3)            Dorothy

settled her claims against Otis Elevator, a third party; and (4) Dorothy failed to provide

Marymount with the statutorily required notice of that settlement.            Nevertheless,

appellants contend Marymount was not entitled to recover the $61,527.42 because it is

not a “statutory subrogee,” and, in any event, Marymount is barred from recovery by the

doctrine of unclean hands.

       {¶34} Appellants assert that Marymount is not a “statutory subrogee” but rather a

“third party” based on its alleged “dual-capacity” or “intentional tort” liability. However,

as previously discussed, Marymount has no liability to Dorothy under either the

“dual-capacity” doctrine or the employer intentional tort statute.      Furthermore, R.C.

4123.93 defines “statutory subrogee” as, inter alia, “a self-insured employer.” Because it

is undisputed that Marymount is a self-insured employer that paid Dorothy workers’

compensation benefits for her work-related injury, Marymount is a “statutory subrogee”

entitled to prior notice of Dorothy’s settlement with Otis Elevator.

       {¶35} Appellants also argue that Marymount is barred from recovering its

subrogation interest by the doctrine of unclean hands. However, the clean hands doctrine

is a defense against claims in equity. Emery Woods Acquisition, L.L.C. v. Stanley, 8th
Dist. Cuyahoga No. 93706, 2010-Ohio-3421, ¶ 26. The doctrine does not apply where a

party is not attempting to invoke the equitable powers of the court. Jamestown Village

Condominium Owners Assn. v. Market Media Research, Inc., 96 Ohio App.3d 678, 688,

645 N.E.2d 1265 (8th Dist.1994). Marymount’s claim for recovery is based on its

statutory right to subrogation. It is not an equitable claim. Therefore, the doctrine of

unclean hands is inapplicable to the facts of this case.

       {¶36} Marymount is entitled to recover the full amount of the $61,527.42 it paid to

Dorothy. R.C. 4123.931(G) unequivocally states that, if the statutory subrogee is not

given prior notice of a settlement with a third party, “the third party and the claimant [are]

jointly and severally liable to pay the statutory subrogee the full amount of the

subrogation interest.” (Emphasis added.) Appellants assert that Marymount’s recovery

of the entire $61,527.42 is unconscionable and “shocks the conscience.” However, as

the court stated in Williams, if appellants wished to avoid liability for all or part of

[Marymount’s] subrogation interest, they could have done so by following the procedures

set forth in R.C. 4123.931. Williams at ¶ 16.

       {¶37} The fifth assignment of error is overruled.

       {¶38} Judgment affirmed.

       It is ordered that Marymount 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 the common pleas 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.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
