      [Cite as Turner v. Dimex, L.L.C., 2019-Ohio-4251.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                              WASHINGTON COUNTY

TIM A. TURNER,                                      :
                                                    :      Case No. 19CA3
      Plaintiff-Appellant,                          :
                                                    :
      vs.                                           :      DECISION AND JUDGMENT
                                                    :      ENTRY
DIMEX, LLC,                                         :
                                                    :
      Defendant-Appellee.                           :

                                        APPEARANCES:

James R. Leach, Parkersburg, West Virginia, for Appellant.

Cari Fusco Evans, Fischer, Evans & Robbins, Ltd., Canton, Ohio, for Appellee.


Smith, P.J.

      {¶1} Tim Turner appeals the February 11, 2019 judgment entry of the

Washington County Court of Common Pleas which granted judgment to his

employer, Dimex, LLC, on his claim for intentional tort. Turner asserts the trial

court erred in granting judgment to Dimex, LLC. Having reviewed the record, we

agree with the trial court’s conclusions that: (1) the forklift backup alarm at issue is

not an “equipment safety guard”; and, (2) there is no evidence that Dimex

deliberately removed the backup alarm. Accordingly, we overrule the sole

assignment of error and affirm the judgment of the trial court.
Washington App. 19CA03                                                                2


                                      FACTS

      {¶2} Dimex “Appellee” is a manufacturing facility in Marietta, Ohio. Tim

Turner “Appellant” was employed by Appellee as a shipping clerk. On December

14, 2015 while at work, Appellant incurred serious injuries requiring multiple

surgeries to his right leg when he was crushed between two forklifts on the plant’s

loading dock.

      {¶3} On November 27, 2017, Appellant filed a complaint against Appellee

alleging permanent personal injuries and associated losses and damages as a result

of Appellee’s deliberate removal of an equipment safety guard on one of its

forklifts. Appellee filed a timely answer, alleging that it was entitled to Workers

Compensation immunity pursuant to R.C. 2745.01. Appellee also alleged

Appellant’s injuries were caused by his own negligence and failure to follow

procedures. As the trial court proceedings unfolded, the parties engaged in written

discovery and depositions.

      {¶4} On December 17, 2018, both Appellant and Appellee filed motions for

summary judgment. The parties also filed responsive pleadings. On February 11,

2019, the trial court filed a Judgment Entry Regarding Motions for Summary

Judgment which granted Appellee’s motion and denied Appellant’s motion.

      {¶5} This timely appeal followed. Where pertinent, additional facts are set

forth below.
Washington App. 19CA03                                                               3


                           ASSIGNMENT OF ERROR

      “I. THE TRIAL COURT ERRED IN GRANTING SUMMARY
      JUDGMENT TO APPELLEE DIMEX, LLC AND DENYING
      SUMMARY JUDGMENT TO APPELLANT TIM TURNER.”

                            STANDARD OF REVIEW

      {¶6} Appellate review of summary judgment decisions is de novo, governed

by the standards of Civ.R. 56. Vacha v. N. Ridgeville, 136 Ohio St.3d 199, 2013-

Ohio-3020, 992 N.E.2d 1126, ¶ 19; Citibank v. Hine, 4th Dist. Ross No.

17CA3624, 2019-Ohio- 464, at ¶ 27. Summary judgment is appropriate if the

party moving for summary judgment establishes that (1) there is no genuine issue

of material fact, (2) reasonable minds can come to but one conclusion, which is

adverse to the party against whom the motion is made and, (3) the moving party is

entitled to judgment as a matter of law. Capital One Bank (USA) N.A. v. Rose, 4th

Dist. Ross No. 18CA3628, 2018-Ohio-2209, at ¶ 23; Civ.R. 56; New Destiny

Treatment Ctr., Inc. v. Wheeler, 129 Ohio St.3d 39, 2011-Ohio-2266, 950 N.E.2d

157, ¶ 24; Chase Home Finance, LLC v. Dunlap, 4th Dist. Ross No. 13CA3409,

2014-Ohio-3484, at ¶ 26.

      {¶7} The moving party has the initial burden of informing the trial court of

the basis for the motion by pointing to summary judgment evidence and

identifying parts of the record that demonstrate the absence of a genuine issue of

material fact on the pertinent claims. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662
Washington App. 19CA03                                                                    4


N.E.2d 264 (1996); Chase Home Finance at ¶ 27; Citibank, supra, at ¶ 28. Once

the moving party meets this initial burden, the non-moving party has the reciprocal

burden under Civ.R. 56(E) to set forth specific facts showing that there is a

genuine issue remaining for trial. Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264.

See also Rose, supra, at ¶ 24.

      {¶8} Pursuant to the above rule, a trial court may not enter summary

judgment if it appears a material fact is genuinely disputed. Ball v. MPW Indus.

Servs., Inc., 2016-Ohio-5744, 60 N.E. 3d 1279, (5th Dist.) at ¶ 29, citing, Vahila v.

Hall, 77 Ohio St.3d 421, 429, 674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75

Ohio St.3d 280, 662 N.E.2d 264 (1996).

                                 LEGAL ANALYSIS

      {¶9} Prior to April 7, 2005, the courts looked to common law to determine

whether an employee established his or her employer committed an intentional

tort. Pursuant to Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108

(1991), when an employer proceeds despite knowledge that injuries are certain or

substantially certain to result, “he is treated by the law as if he had in fact desired

to produce the result.” Under Fyffe, an employee could establish intent based on

substantial certainty by establishing the following: (1) knowledge by the employer

of the existence of a dangerous process, procedure, instrumentality or condition

within its business operation; (2) knowledge by the employer that if the employee
Washington App. 19CA03                                                            5


is subjected by his employment to such dangerous process, procedure,

instrumentality or condition, then harm to the employee will be a substantial

certainty; and (3) that the employer, under such circumstances, and with such

knowledge, did act to require the employee to continue to perform the dangerous

task. See Breitenbach v. Double Z Constr. Co., 2016-Ohio-1272, 63 N.E.3d 498, ¶

28 citing Fyffe; Ball, supra, at ¶ 30.

      {¶10} R.C. 2745.01, effective April 7, 2005, provides in pertinent part:

      (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
Washington App. 19CA03                                                                                            6


        was committed with intent to injure another if an injury or an

        occupational disease or condition occurs as a direct result.

Kaminski v. Metal &Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-

1027, 927 N.E.2d 1066, at ¶¶ 48-50.

        {¶11} In Hoyle v. DTJ Ents., Inc., 143 Ohio St.3d 197, 2015-Ohio-843, 36

N.E.3d 122, at ¶ 11, the Supreme Court of Ohio observed:

         The General Assembly's intent in enacting R.C. 2745.01 was to

        ‘significantly restrict’ recovery for employer intentional torts to

        situations in which the employer ‘acts with specific intent to cause an

        injury.’ Kaminski, supra, at ¶ 56; Stetter v. R.J. Corman Derailment

        Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d

        1092, at ¶ 26. ‘[A]bsent 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.’ Houdek v. ThyssenKrupp Materials

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

        ¶ 25.1

        1. Definition of “equipment safety guard.”



1
  The Kaminski court considered the constitutionality of R.C. 2745.01 and determined it to be constitutional. Id. at
¶ 102.
Washington App. 19CA03                                                                  7


      {¶12} Appellant argues that he is entitled to the presumption of intent to

injure pursuant to R.C. 2745.01(C) because Appellee made a deliberate decision to

leave a forklift in service when it knew that the backup alarm was inoperable and

failed to repair or replace it. The trial court herein found that the forklift backup

alarm is not an “equipment safety guard since it does not shield the operator from

exposure or injury.” The court also found that Appellant is not entitled to the

presumption of intent to injure since he was not the “operator” of the forklift.

      {¶13} Our research has led us to various cases which have considered the

issue of the meaning of “equipment safety guard” within the context of R.C.

2745.01(C). In Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317,

981 N.E.2d 795, the Supreme Court of Ohio found that free-standing items that

serve as physical barriers between the employee and potential exposure to injury,

such as rubber gloves and sleeves, do not constitute “equipment safety guards.” Id.

at ¶ 30. In Beyer v. Rieter Automotive North American, 134 Ohio St.3d 379, 2012-

Ohio-5627, 982 N.E.2d 708, relying upon the Hewitt decision, the Supreme Court

reversed the decision of the Eighth District Court of Appeals that found that face

masks were equipment safety guards, and consequently entered judgment in favor

of the employer. In Houdek, supra, at ¶ 27, the Supreme Court determined that

safety devices such as orange cones, reflective vests, and retractable gates are not

equipment safety guards. The Supreme Court has also declined to accept cases in
Washington App. 19CA03                                                                8


which appeals courts determined that the following were not equipment safety

guards: a trench box designed to protect workers from a trench collapse; a jib crane

and an observation platform (part of a system of safety devices implemented on a

tire shredder); and a tire bead and bead taper, parts of a wheel assembly unit. See

Barton v. G.E. Baker Construction, 9th Dist. Lorain No. 10CA009929, 2011-Ohio-

5704; Downard v. Rumpke of Ohio, Inc., 12th Dist., 2013-Ohio-4760, 3 N.E.3d

1270; Roberts v. RMB Ents., Inc.,197 Ohio App.3d 435, 2011-Ohio-6223, 967

N.E.2d 1263. (12th Dist.). More recently, the Fifth District Court of Appeals found

that a clevis shackle, separate from a crane and for the purpose of making rigging

equipment more safe, is not an equipment safety guard. See Breitenbach, supra.

      {¶14} The Fifth District Court of Appeals also considered a fact pattern and

arguments similar to Appellant’s in Beary v. Larry Murphy Dump Truck Serv.,

Inc., 2014-Ohio-4333, 20 N.E.3d 359. There the employee brought an intentional

tort action against a trucking company after the employee was struck by a skid

steer on a parking lot. The trucking company was hired to pave a grocery store

parking lot. On the date of the accident, Beary was attaching caution tape on the

parking lot. Beary was struck by another employee who was operating a skid steer

that was equipped with a backup alarm that was not functional at the time. The
Washington App. 19CA03                                                                                               9


operator of the skid steer did not know Beary was behind him. Beary did not know

the skid steer was headed in his direction. 2

         {¶15}The Beary court looked to the Supreme Court’s decision in Hewitt v.

L.E. Myers Co., supra, wherein the Court was asked to determine whether

“equipment safety guard” for purposes of R.C. 2745.01(C) includes only those

devices on a machine that shield an employee from injury by guarding the point of

operation of that machine. Id. The Supreme Court explicitly 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.” Id.

The Court rejected a broader interpretation that would include any generic safety-

related items (emphasis added), as such a broad interpretation “ignores not only the

meaning of the words used but also the General Assembly's intent to restrict

liability for intentional torts.” Id.

         {¶16} The Hewitt Court had previously adopted the rationale found in Fickle

v. Conversion Technologies, Int'l Inc., 6th Dist. Williams No. WM–10–016, 2011-

Ohio-2960. In Fickle, the trial court found that a jog control switch and an
2
  Appellant originally brought suit against his employer “LMDT” for an intentional tort pursuant to R.C. 2745.01.
LMDT moved for summary judgment which the trial court granted on February 17, 2011. Appellant appealed the
trial court's decision. In Beary v. Larry Murphy Dump Truck, Serv. Inc., 5th Dist. Stark No. 2011–CA–00048, 2011-
Ohio-4977, the appellate court affirmed the trial court's ruling. The appellate court found the reasoning in Fickle v.
Conversion Technologies, Int'l Inc., 6th Dist. Williams No. WM–10–016, 2011-Ohio-2960, to be persuasive and
held that the backup alarm is not equipment safety guard pursuant to R.C. 2745.01(C). Appellant appealed the
appellate ruling to the Ohio Supreme Court. The Ohio Supreme Court held this case in abeyance pending its
decision in Hewitt v. L.E. Myers Co., 8th Dist. Cuyahoga No. 96138, 2011-Ohio-5413. After the Ohio Supreme
Court decided the Hewitt case, the Court reversed and remanded this case to the trial court to apply the Hewitt
decision. Beary v. Larry Murphy Dump Truck Serv., Inc., 134 Ohio St.3d 359, 2012-Ohio-5626, 982 N.E.2d 691.
Washington App. 19CA03                                                                    10


emergency stop cable were not equipment safety guards. The court reasoned that

“the jog switch does not shield from accidental contact,” and “the cable does not

guard or prevent” the “catching or entangling” of an operator’s hand.

      {¶17} On appeal, the Fickle court observed that, “[i]n the absence of clear

legislative intent to the contrary, words and phrases in a statute shall be read in

context and construed according to their plain, ordinary meaning.” Kunkler v.

Goodyear Tire & Rubber Co., 36 Ohio St.3d 135, 137, 522 N.E.2d 477 (1988).

The plain, ordinary, or generally accepted meaning of an undefined statutory term

is invariably ascertained by resort to common dictionary definitions. See, e.g.,

Davis v. Davis, 115 Ohio St.3d 180, 873 N.E.2d 1305, 2007–Ohio–5049, ¶ 17–18:

(internal citations omitted.). Similarly, this court has recognized that “ ‘ “[i]t is a

cardinal rule of statutory construction that where the terms of a statute are clear

and unambiguous, the statute should be applied without interpretation.” ’ ” Wray

v. Gahm Properties, Ltd., 2018-Ohio-50, 103 N.E.3d 1482, (4th Dist.), at ¶ 10,

quoting, Wilson v. Lawrence, 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d

1242, ¶ 11.

      {¶18} The Fickle court then went on to construe the undefined statutory

terms according to their generally accepted meaning:

       “Guard” is defined as “a protective or safety device; specif: a device for

protecting a machine part or the operator of a machine.” Merriam–Webster's
Washington App. 19CA03                                                            11


Collegiate Dictionary, supra, at 516. “Safety” means “the condition of being safe

from undergoing or causing hurt, injury, or loss.” Id. at 1027. And “equipment” is

defined as “the implements used in an operation or activity: APPARATUS.” Id. at

392. In turn, “device” is “a piece of equipment or a mechanism designed to serve a

special purpose or perform a special function.” Id. at 316. “Protect” means “to

cover or shield from exposure, injury, or destruction: GUARD.” Id. at 935. “Safe”

is defined as “free from harm or risk” and “secure from threat of danger, harm, or

loss.” Id. at 1027. Fickle at ¶ 38.

        {¶19} Based on the foregoing, the Fickle court arrived at the following

definition of ‘equipment safety guard’: “... as used in R.C. 2745.01(C), an

‘equipment safety guard’ would be commonly understood to mean a device that is

designed to shield the operator from exposure to or injury by a dangerous aspect of

the equipment.” In Beary, applying the reasoning contained in Fickle, the

appellate court found that the skid steer’s backup alarm was not an equipment

safety guard for purposes of R.C. 2945.01(C). The court reasoned as follows at

¶ 17:

        The backup alarm does not shield the operator or bystander from

        exposure or injury by a dangerous aspect of the skid steer and serves

        only to alert or warn of the skid steer's approach. An operator or

        bystander is not shielded from injury by the mere existence of the
Washington App. 19CA03                                                             12


      backup alarm. While the backup alarm may alert a bystander before

      he enters the zone of danger, it does not keep the bystander away from

      this zone of danger and does nothing to stop the skid steer from

      operating when an individual gets close to the machine. As noted by

      the trial court, if a bystander were directly behind the skid steer while

      it was backing up, the alarm would merely keep beeping while the

      skid steer ran over the bystander. While the backup alarm may make

      the skid steer safer, it does not shield the operator or a bystander from

      exposure to or injury by a dangerous aspect of the skid steer. As

      noted by the court in Fickle, the standard which the Ohio Supreme

      Court adopted in Hewitt, an equipment safety guard is more than a

      device that alerts of a condition or makes a machine safer. 6th Dist.

      Williams No. WM–10–16, 2011-Ohio-2960, 2011 WL 2436750.

Consequently, the Beary court concluded that the employee failed to

establish a rebuttable presumption of employer intent by the showing of

deliberate removal of an equipment safety guard, pursuant to R.C.

2745.01(C).

      {¶20} Appellant also urges us to consider that 2745.01 does not limit

the protection for intentional tort to only “operators”. Appellant asserts that,

in this regard, the Hewitt and Houdek decisions have created confusion.
Washington App. 19CA03                                                            13


Appellant points out that the Hewitt decision, based on its particular facts,

limited the protection of an equipment safety guard to an operator, while in

Houdek, the Court considered the claim of an employee, not operator, who

was struck by a sideloader operated by another employee. Ultimately, the

Houdek decision turned on the issue of whether or not the employer’s

actions were deliberate. Appellant asserts that the Supreme Court’s failure

to clarify whether the definition of “equipment safety guard” is limited to

only operators of equipment has contributed to a split of opinion within the

appellate districts. Citing Pixley v. Pro-Pak Industries, Inc., 142 Ohio St.3d

293, 2014-Ohio-5460, 28 N.E,2d 1249. Appellant concludes that as an

initial matter, we should find that Appellant, as a non-operator, should be

afforded the protections of RC. 2745.01, and notwithstanding, Appellant as

“operator” of Dimex’s loading dock, should be afforded the protection of the

statute.

       {¶21} In Pixley, the Supreme Court reversed the appellate court’s

decision on the narrow finding that the Plaintiff could not establish a

deliberate intent claim, failing to take the opportunity to address whether the

definition of “equipment safety guard” is limited only to operators of

equipment. In the decision, Justice Pfeiffer dissented, writing that the

“protections for workers contained in R.C. 2745.01(C) are in no way limited
Washington App. 19CA03                                                            14


to the operator of a piece of machinery.” While we agree that these cases

demonstrate the language of the statute in this regard remains unsettled, we

find this issue to be moot in light of our finding in agreement with the trial

court’s decision.

      {¶22} For the reasons which follow, we find, as did the trial court, that

the reasoning set forth in Beary is persuasive and equally applicable to the

facts presented in Appellant’s case. We find that the forklift backup alarm is

not an “equipment safety guard” since it does not shield the operator, or

really any other person, from exposure or injury. See Beary, supra, at ¶ 17.

      {¶23} In this case, Daren Bolen, the plant manager at Dimex, testified

as to the layout of the shipping docks. The loading dock floor was a large

area at Dimex containing six docks. There was an area of floor space and

warehouse area. There was a shipping office about 30 feet away from the

shipping dock. Large trucks pulled up to the docks to be loaded to the

warehouse area.

      {¶24} Bolen testified that Dimex employees loaded several trucks

each day. He testified there should not be anybody on the loading docks

where the forklifts are loading and unloading. He acknowledged

Appellant’s job required him to be on the shipping docks frequently. Plant
Washington App. 19CA03                                                              15


manager Bolen also testified Forklift 21, the equipment operated by Sam

Smith at the time of Appellant’s injury, was purchased new in 2013.

      {¶25} Appellant testified he was originally employed by Dimex in 2012.

Prior to working at Dimex, Appellant worked for another company, Ames. At

Ames, Appellant began as a forklift operator and warehouse supervisor. He

became certified in the operation of forklifts.

      {¶26} At Dimex, Appellant began as a warehouse employee, operating

forklifts. His training consisted of watching a video which instructed on the

operation of forklifts. At the time of Appellant’s injury in 2015, he worked as a

shipping clerk, checking paperwork and operating the forklifts only occasionally.

      {¶27} Appellant testified on the accident date, he had assigned Sam

Smith to unload material from an Old Dominion truck. Appellant and Smith

walked onto the dock where the truck was located. Smith was operating an

open-rear forklift. Smith was able to turn and look out the back of the open-

rear forklift, which did not have mirrors. After a brief conversation,

Appellant went to his office for a few minutes.

      {¶28} Appellant had left the office and was on his way to get a soda in

the breakroom when he remembered he had forgotten some items that would

be in Smith’s way as he worked. Appellant was aware that Smith was in the

Old Dominion truck on his forklift. Appellant turned around and came back
Washington App. 19CA03                                                            16


across the dock to look for someone to move the items. John Hinton was

coming out of the plant, so Appellant motioned Hinton to pull over and

instructed Hinton to move the items.

      {¶29} When Appellant stopped, he was between Smith’s loading dock

and the next one, but not directly at the back of the Old Dominion truck.

Appellant’s back was turned to Smith and he was facing Hinton. Suddenly,

Hinton started yelling and screaming that Sam Smith was coming back

towards him. Appellant testified that he heard neither a horn nor a backup

alarm. Unfortunately, when Smith backed out of the truck with his forklift

he pinned Appellant against Hinton’s forklift. Appellant had only enough

time to move out of the way except for his right leg.

      {¶30} Sam Smith, a full-time forklift operator at the time of the

accident, acknowledged the shipping floor could be “tight quarters” at times.

There were no designated lanes for pedestrians or off-limits marks for

forklifts designated on the shipping floor. He testified typically, if a person

was loading or unloading, he or she is more focused on the load. Smith

testified on the accident date, he was assigned to Forklift 21. Smith did a

pre-shift inspection and reported that the backup alarm needed service.

Sometimes the alarm functioned and sometimes it did not.
Washington App. 19CA03                                                             17


      {¶31} Smith did not dispute that on the specific dates of December 1,

2, 3, 7, 8, 11, and 14, the pre-service checklist he prepared indicated that the

backup alarm needed service. Smith testified it was not his job to perform

service on the forklift. Smith denied discussing the pre-inspection report of

his forklift with the safety coordinator, Melissa Jarvis. However, he did tell

someone in maintenance about a safety issue with the backup alarm. Smith

also made other employees aware. No one ever told him to take the forklift

out of service.

      {¶32} Smith testified prior to backing out of the truck, he looked over

his right shoulder but not his left. He testified he did not use his horn

because he did not see Appellant. Appellant was in Smith’s blind spot.

After the accident, Smith was sent for a drug test and then sent home. He

returned to work for his next shift and resumed duties with Forklift 21.

Smith checked the backup alarm and, on this date, it was functioning.

      {¶33} John Hinton’s testimony added little to the facts. Hinton

testified he was also employed by Dimex as a forklift operator. He testified

he did not recall the incident, but he does not dispute Appellant’s testimony

that he started yelling just before the incident.

      {¶34} Bolen testified he participated in safety meetings and training,

but was not involved in investigating the incident. Bolen agreed that the
Washington App. 19CA03                                                          18


records produced indicated that as far back as December 1, 2015, the

forklift’s backup alarm had been reported as needing service. Based on the

records, he acknowledged that the forklift was not taken out of service for

repair of the backup alarm. Bolen testified the operator determines whether

there should be removal for service but the maintenance supervisor has the

ultimate responsibility for making that determination.

      {¶35} Bolen testified the backup alarm is listed as a safety device on

the maintenance checklist. Bolen understood company policy to be that only

certain things would remove a forklift from service, and a backup alarm was

not one of them. After the accident, the company received an OSHA

citation but it did not relate to the backup alarm. Rather, OSHA cited Dimex

for not having pedestrian aisles and passageways in the shipping area

appropriately marked.

      {¶36} As stated above, we find the reasoning set forth in Beary

equally applicable here. In this case, the backup alarm did not shield Smith

or Appellant from exposure or injury by a dangerous aspect of the forklift

and served only to alert or warn of the forklift’s approach. While the backup

alarm may have alerted Appellant while he was in the zone of danger, it

would not have served to actually keep him away from the zone of danger

nor stop the forklift from running simply because Appellant was nearby.
Washington App. 19CA03                                                                   19


As noted by the Beary and Fickle courts, the standard which the Supreme

Court of Ohio adopted in Hewitt is that an equipment safety guard is more

than a device that alerts of a condition. Thus, we find the trial court did not

err when it found that the forklift backup alarm is not an “equipment safety

guard” since it did not shield the operator from exposure or injury.

      2. Employer intent.

      {¶37} The trial court herein also found there was no evidence that Dimex

deliberately removed the backup alarm by not requiring the forklift to be taken out

of service, based on Smith’s notations on the daily pre-service checklist. There is a

rebuttable presumption of employer intent upon a showing of the “deliberate

removal * * * of an equipment safety guard * * * if an injury * * * occurs as a

direct result.” R.C. 2745.01(C). An intent argument was also raised in Beary and

the court again looked to Hewitt, wherein the Supreme Court held that in order to

receive the benefit of the rebuttable presumption that an employer acted with

deliberate intent to cause the plaintiff's injury, a plaintiff must establish that the

employer “makes a deliberate decision to lift, push aside, take off, or otherwise

eliminate that guard.” Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-

5317, 981 N.E.2d 795. In Hewitt, the Supreme Court stated that removal may

encompass more than “physically removing a guard from equipment and making it

unavailable, such as bypassing or disabling the guard.” Id.
Washington App. 19CA03                                                                20


       {¶38} The Beary court also noted the Supreme Court’s decision in Houdek

v. ThyssenKrupp Materials, N.A., Inc., supra, that, in the absence of deliberate

removal, a plaintiff must establish that the employer acted with specific intent to

injure him. See also Breitenbach, supra, at ¶ 33. In Houdek, the Court rejected the

argument that the intent inquiry was an objective one satisfied by an employer's

mere knowledge of a hazardous condition, as such would be covered by workers'

compensation. See Broyles v. Kasper Machine Co., 6th Cir. No. 12–3464, 2013

WL 827713 (March 7, 2013). Even if an employer places an employee in a

potentially dangerous situation, there must also be evidence that either

management or the supervisor deliberately intended to injure the employee for

R.C. 2745.01(C) to apply. Houdek, 134 Ohio St.3d 491, 2012-Ohio-5685, 983

N.E.2d 1253. Simply stated, R.C. § 2745.01 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. Breitenbach, supra,

at ¶ 35.

       {¶39} In Beary, the trial court found that assuming the backup alarm was an

equipment safety guard, there was no evidence of deliberate removal of the

apparatus. The injured worker testified that because the foreman knew the backup
Washington App. 19CA03                                                              21


alarm was not functional, therefore Beary was placed at risk. Beary asserted that

the evidence that the backup alarm was disconnected and did not work for three to

six months was enough to establish the rebuttable presumption of intent. As

specifically stated in Houdek, the Ohio Supreme Court rejected the argument that

the intent inquiry was an objective one satisfied by an employer's mere knowledge

of a hazardous condition. Accordingly, the appellate court found that evidence that

the alarm was disconnected and did not work was not enough to establish the

rebuttable presumption without evidence of deliberate intent.

      {¶40} Furthermore, the appellate court found that even if they had found that

the backup alarm is an equipment safety guard, there was no evidence the

employer deliberately removed it. Beary also testified that he didn't “think [the

foreman’s] intentions were to deliberately intend to injure me per se.” And Beary

testified that he was not aware of any evidence that suggested before the day of the

accident the foreman planned for him to be injured. The appellate court also

concluded that after reviewing the evidence, there was no indication that the

employer made a deliberate decision to “lift, push aside, take off, or otherwise

eliminate the backup alarm.”

      {¶41} In Appellant’s case, the trial court found there was no evidence that

Dimex deliberately removed the backup alarm by not requiring the forklift to be

taken out of service when the operator noted that it was not working on routine
Washington App. 19CA03                                                               22


daily inspection reports. Based on the above case law, which provides that the

intent inquiry is not satisfied by an employer’s mere knowledge of a hazardous

condition, we find the undisputed evidence that the forklift’s backup alarm had not

been functioning several days prior to Appellant’s injury and including the injury

date, does not suffice to establish the rebuttable presumption without deliberate

intent.

          {¶42} Finally, similar to the reasoning we have applied from Beary, this

record is simply devoid of any evidence that Dimex or its representatives intended

to injure Appellant. The trial court observed that there was no evidence “that

Dimex made a deliberate decision to ‘remove’ the backup alarm by not requiring

the forklift to be taken out of service when Smith noted that it was not working on

the routine daily inspection report.” We have engaged in a de novo review of this

record and find no evidence to the contrary.

          {¶43} For the foregoing reasons, we find no merit to the arguments raised in

Appellant’s sole assignment of error. Accordingly, we overrule the assignment of

error and affirm the judgment of the trial court.

                                                          JUDGMENT AFFIRMED.
Washington App. 19CA03                                                                23


                              JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Common Pleas Court to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date
of this entry.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

      McFarland, J. & Hess, J.: Concur in Judgment and Opinion.

                                       For the Court,


                                BY: ________________________________
                                    Jason Smith, Presiding Judge




                             NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
