[Cite as Wright v. Mar-Bal, Inc., 2013-Ohio-5647.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


LESTER WRIGHT,                                       :    OPINION

                 Plaintiff-Appellant,                :
                                                          CASE NO. 2012-G-3112
        - vs -                                       :

MAR-BAL INC., et al.,                                :

                 Defendants-Appellees.               :


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 11W001025.

Judgment: Affirmed.


Paul W. Flowers, Paul W. Flowers Co., L.P.A., Terminal Tower, 35th Floor, 50 Public
Square, Cleveland, OH 44113-2216; Frank Gallucci, III and Michael D. Shroge, Plevin
& Gallucci Co., L.P.A., 55 Public Square, Suite 2222, Cleveland, OH 44113 (For
Plaintiff-Appellant).

Carolyn M. Cappel, Brandon M. Fairless, Nancy A. Noall, Shawn W. Maestle, and Julius
E. Trombetto, Weston Hurd LLP, The Tower at Erieview, 1301 E. 9th Street, Suite
1900, Cleveland, OH 44114-1862 (For Defendants-Appellees).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant Lester Wright appeals the judgment of the Geauga County

Court of Common Pleas granting Appellee Mar-Bal, Inc.’s motion for summary

judgment. Based on the following, we affirm.

        {¶2}     Wright brought an intentional tort action under R.C. 2745.01, alleging that

Mar-Bal, Inc. (“Mar-Bal”) his employer, was liable for intentional tortious conduct that
resulted in his permanent injury and disability on July 15, 2009, when he lost his right

hand in a mechanical press.

       {¶3}   Wright was hired as a maintenance technician by Mar-Bal in December

2006. Mar-Bal compounds and molds Thermoset composite products using injection

molding machines. As a maintenance technician, Wright’s duties included inspecting

and maintaining the mechanical presses that were used to create plastic parts.

       {¶4}   Upon his hiring, Wright received both an employee handbook and an

“Outline for New Hire Safety Orientation Program.” This training material explained

Mar-Bal follows OSHA’s requirement that, before performing maintenance on any

machine, the employee must first lockout the machine’s power source to prevent the

machine from being inadvertently powered.          The manual also explained that any

employee who “intentionally fails to follow lockout/tagout procedures will face

disciplinary action.”

       {¶5}   Wright    signed   the   “Employee     Sign-Off   Sheet   Energy   Control

(Lockout/Tagout) Procedure/Awareness” form acknowledging that he received a copy of

Mar-Bal’s lockout/tagout procedure; he understands the procedure; and he will “support

and follow [it in his] daily work at Mar-Bal, Inc.” The purpose of the lockout/tagout

procedure was outlined in the material received by Wright:

              This procedure establishes the minimum requirements set forth for
              the lockout or tag out energy isolating devices. It shall be used to
              ensure that the machine or equipment are isolated from all
              potentially hazardous energy, and locked out or tagged out before
              employees perform any servicing or maintenance activities where
              the unexpected energizing, start-up or release of stored energy
              could cause injury.




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      {¶6}    The accident at issue occurred on injection molding machine number 4.

This machine could be placed in three modes—manual mode, which is not used for

production; semi-automatic mode, used to run production; and automatic mode. The

record indicates that when placed in manual mode, if the door guard is open, the clamp

cannot be closed. When in manual mode, the cylinder can be operated with the door

guard open.

      {¶7}    When running production in the semi-automatic mode, the door guard

automatically closes and the machine cycle starts. After the machine cycle is complete,

the door guard automatically opens. After the door opens, the operator reaches in and

removes the completed part from the machine.

      {¶8}    During production in automatic mode, the machine runs continuously, and

the door guard does not open between each cycle. When placed in automatic mode,

the finished plastic part falls onto a conveyer and the operator removes the finished part

from the conveyer. The operator does not reach into or near the moving parts of the

machine.     If the machine is either in semi-automatic or automatic mode, it will not

operate with the door guard open.

      {¶9}    The affidavit of Bob Fowler, maintenance supervisor at Mar-Bal, outlined

the proper procedure for cleaning out the plastic injection molding machine. Mr. Fowler

averred the following:

              To perform the clean out, the maintenance person informs the
              machine operator he is going to perform a clean out. The operator
              is not trained to perform a clean out. The operator is not trained to
              perform and does not perform any functions on the machine during
              the injection housing clean out process. The maintenance person
              takes the machine out of the production mode and places it in
              manual mode using the machine control panel. The maintenance
              person then reverses the cylinder to its rearmost position. After



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              moving the cylinder to the rear, the maintenance person locks out
              and tags out the machine at the electrical panel. The maintenance
              person places their personal lock and tag, issued to them by the
              company on the electrical panel. After the machine is locked out
              and tagged out, the maintenance person removes the molds from
              the injector housing clean out cover. The maintenance person then
              manually removes any material from inside the injection housing
              clean out. After conducting the clean out, the maintenance person
              replaces the cover and unlocks the machine and re-energizes it.
              The entire clean out process takes approximately one to five
              minutes.

       {¶10} On the date of the accident, Wright was working third shift, which is the

shift that cleans the injection housing. Wright first performed a visual safety check.

After performing his visual safety check, Wright cleaned out the injection housing.

Instead of following the lockout/tagout procedure as described above, Wright claims that

he signaled the operator to put the machine in semi-automatic, automatic mode. Wright

then climbed onto the machine and observed the door guard open. Wright pulled the

material out of the cylinder housing of the machine; the machine began to cycle; and his

hand was caught in the machine.

       {¶11} In his complaint, Wright alleged that his injuries were due to the deliberate

and intentional conduct of Mar-Bal in requiring him to clean the housings of the injection

molding machine when “safety protocols and procedures were not created, enforced,

effectuated or followed, within the meaning of R.C. 2745.01(B) and Ohio Common Law.”

Wright further alleged that Mar-Bal “deliberately and intentionally required [Wright] to be

placed in an inherently dangerous environment without the necessary safety equipment

guarding, protection, instruction or training.”

       {¶12} After conducting discovery, Mar-Bal filed a motion for summary judgment.

Wright filed a memorandum in opposition of summary judgment. The trial court granted




                                              4
Mar-Bal’s motion for summary judgment, finding no evidence that Mar-Bal “gave direct

orders that resulted in injury to Mr. Wright. There is no evidence before the Court that

Mar-Bal directed the machine operator to disengage the machine’s safety doors while

Mr. Wright was performing maintenance.”

       {¶13} It is from this judgment that Wright filed a notice of appeal and asserts the

following assignment of error:

       {¶14} “The trial judge erred, as a matter of law, by granting summary judgment

upon plaintiff’s workplace intentional tort claim.”

       {¶15} In order for a motion for summary judgment to be granted, the moving

party must prove the following:

              (1) [N]o genuine issue as to any material fact remains to be
              litigated, (2) the moving party is entitled to judgment as a matter of
              law, and (3) it appears from the evidence that reasonable minds
              can come to but one conclusion, and viewing such evidence most
              strongly in favor of the nonmoving party, that conclusion is adverse
              to the party against whom the motion for summary judgment is
              made.

(Citation omitted.) Mootispaw v. Eckstein, 76 Ohio St.3d 383, 385 (1996).

       {¶16} Summary judgment will be granted if “the pleadings, depositions, answers

to interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of facts, if any, * * * show that there is no genuine issue as to any material

fact * * *.” Civ.R. 56(C). Material facts are those that might affect the outcome of the

suit under the governing law of the case. Turner v. Turner, 67 Ohio St.3d 337, 340

(1993), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).




                                              5
      {¶17} If the moving party meets this burden, the nonmoving party must then

provide evidence illustrating a genuine issue of material fact, pursuant to Civ.R. 56(E).

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Civ.R. 56(E) provides:

             When a motion for summary judgment is made and supported as
             provided in this rule, an adverse party may not rest upon the mere
             allegations or denials of the party’s pleadings, but the party’s
             response, by affidavit or as otherwise provided in this rule, must set
             forth specific facts showing that there is a genuine issue for trial. If
             the party does not so respond, summary judgment, if appropriate,
             shall be entered against the party.

      {¶18} Summary judgment is appropriate pursuant to Civ.R. 56(E) if the

nonmoving party is confronted by evidentiary material that establishes no genuine issue

of material fact, the material establishes non-liability of the moving party, and the non-

moving party does not meet this reciprocal burden.

      {¶19} Appellate courts review a trial court’s grant of summary judgment de novo.

Brown v. Scioto Cty. Bd. of Commrs., 87 Ohio App.3d 704, 711 (4th Dist.1993). “De

novo review means that this court uses the same standard that the trial court should

have used, and we examine the evidence to determine whether as a matter of law no

genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378,

383 (8th Dist.1997), citing Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 119-120

(1980).

      Wright’s Intentional Tort Claim

      {¶20} If an employee is injured in the course of employment, his redress typically

is limited through the Ohio Workers’ Compensation Act, R.C. 4123.01, et. seq. This is a

comprehensive system designed to compensate workers for injuries that occur during

the course of and arising from employment without the need to establish fault. It also




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includes provisions for enhanced recovery in the event of a violation of certain safety

requirements. In general, in exchange for this coverage, the employer is immune from

suit. The Workers’ Compensation Act, however, contains certain limited exceptions to

the grant of immunity, one of which exists for injuries resulting from an employer’s

intentional tort upon an employee. An employee may pursue an action against his or

her employer pursuant to R.C. 2745.01 when an employer acts with specific intent to

cause an injury. R.C. 2745.01 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 was committed with intent to injure another if an
             injury or an occupational disease or condition occurs as a direct
             result.

      {¶21} In Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 263, 2010-

Ohio-1027, the Ohio Supreme Court explained, “the General Assembly’s intent in

enacting R.C. 2745.01, as expressed particularly in 2745.01(B), is to permit recovery for

employer intentional torts only when an employer acts with specific intent to cause an

injury, subject to subsections (C) and (D).”     See also 6 Larson, Law of Workers’

Compensation, Section 103.03, at 103-7 to 103-8 (2001) (explaining that an employer

“knowingly permitting a hazardous work condition to exist [and] knowingly ordering




                                            7
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)).

       {¶22} In Kaminski, the Court expressed the following:

              R.C. 2745.01 by no means places Ohio outside the national
              mainstream relative to employer intentional torts and the exclusivity
              of the workers’ compensation remedy. Rather, R.C. 2745.01
              appears to harmonize the law of this state with the law that governs
              a clear majority of jurisdictions.

              ‘The common-law liability of the employer cannot, under the almost
              unanimous rule, be stretched to include accidental injuries caused
              by the 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 an injury. (Footnote
              omitted.) 6 Larson’s Workers’ Compensation Law (2008), Section
              103.03.’

Kaminski, supra, at 273-274.

       {¶23} “[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, ¶25. “R.C. 2745.01 limits

claims against employers for intentional torts to circumstances demonstrating a

deliberate intent to cause injury to an employee.”          Id. at ¶29 (emphasis added).

Therefore, in order for Wright to recover under his intentional tort claim, he must

demonstrate that Mar-Bal intended to cause him injury.

       {¶24} Preliminarily, we note that in his brief, Wright analyzes his intentional tort

claim pursuant to the common-law standards set forth in Fyffe v. Jeno’s, Inc., 59 Ohio

St.3d 115 (1991); however, “[b]ecause R.C. 2745.01 is constitutional, the standards

contained in the statute govern employer intentional-tort actions, and the statutory



                                              8
standards apply rather than the common-law standards of Fyffe.” Kaminski, supra, at

274.

       {¶25} Wright maintains the evidence in the record demonstrates that Mar-Bal’s

management forced the service technicians to disregard the federally-mandated

lockout/tagout requirements in an effort to speed up production.       To support this

position, Wright points to both his affidavit in support of his memorandum in opposition

to Mar-Bal’s motion for summary judgment and the affidavit of K. Vito Paul, a former

employee of Mar-Bal.

       {¶26} In his affidavit, Mr. Paul averred that previous supervisors had observed

him performing clean-outs of the presses without employing the lockout/tagout

procedures. Mr. Paul further averred that while he was told it was unsafe to perform

clean-outs without shutting down the machines, he was encouraged to “do it anyways in

order to increase production.”

       {¶27} Although Wright averred that his superiors had trained him to clean the

injection molding machine while it remained energized so that production would not

cease, his prior deposition testimony and his affidavit submitted to the State of Ohio

Bureau of Workers’ Compensation contradict these statements.            In fact, in his

deposition, Wright admitted he was never told to not lockout/tagout. Further, Wright

acknowledged that if he had locked out/tagged out the press, the accident would have

never occurred. See Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, paragraph

three of the syllabus (“[a]n affidavit of a party opposing summary judgment that

contradicts former deposition testimony of that party may not, without sufficient




                                           9
explanation, create a genuine issue of material fact to defeat the motion for summary

judgment”).

       {¶28} Nevertheless, even if Mar-Bal had ignored these safety procedures, as

averred by Mr. Paul, its conduct does not rise to the level of an employer intentional tort,

i.e., a deliberate intent to injure.    “An employer’s failure to follow proper safety

procedures might be classified as grossly negligent or wanton, but does not constitute

an intentional tort.” Jefferson v. Benjamin Steel Co., 5th Dist. Richland Nos. 09 CA 62 &

09 CA 75, 2010-Ohio-50, ¶112, citing Neil v. Shook, Inc., 2d Dist. Montgomery No.

16422, 1998 Ohio App. LEXIS 106 (Jan. 16, 1998). See also Fickle v. Conversion

Techs. Intl., Inc., 6th Dist. Williams No. WM-10-016, 2011-Ohio-2960, ¶48 (finding

failure to provide adequate training and safety devices not sufficient to establish

deliberate intent to injure); Davis v. AK Steel, 12th Dist. Butler No. CA2005-07-183,

2006-Ohio-596, ¶12 (finding failure to provide adequate safety devices and training

does not constitute substantial certainty even under the less-stringent common-law

standards).

       {¶29} Construing all materials in a light most favorable to Wright, the nonmoving

party, we find nothing in the record demonstrating a genuine issue of fact that would

allow one to conclude Mar-Bal committed a tortious act with the intent to injure Wright or

that Mar-Bal acted with deliberate intent to cause him to suffer an injury for purposes of

R.C. 2745.01(A) and (B).

       {¶30} Wright also has not submitted evidentiary material sufficient to create a

genuine issue of fact that would allow the presumption set forth in R.C. 2745.01(C).

Pursuant to that section, deliberate removal of a safety guard by an employer “creates a




                                            10
rebuttable presumption” that the removal was done with intent to injure.                R.C.

2745.01(C) provides: “Deliberate removal by an employer of an equipment safety guard

or deliberate misrepresentations 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 occupational disease or condition occurs as a direct result.”

       {¶31} “The plain meaning of the word ‘remove’ is ‘to move by lifting, pushing

aside, or taking away or off.’     Webster’s Third New International Dictionary 1921

(1986).” Houdek v. ThyssenKrupp Materials, N.A., Inc., supra, at ¶27. In Hewitt v. L.E.

Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, ¶2, the Ohio Supreme Court 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.”

       {¶32} Wright argues that his co-worker, Imedla Ramirez, who was operating

press number 4 prior to the clean-out, was not trained with respect to the lockout/tagout

procedure. Ramirez was trained, however, to leave the door open on the machine so

that it would not operate. Wright maintains that Ramirez “failed to comply with the

instructions that she was not supposed to do anything with the presses while

maintenance was being performed.”         Wright asserts that “reasonable minds could

certainly conclude” that Ramirez deliberately pressed the button to resume production.

       {¶33} The issue is not whether Ramirez deliberately pressed the button. The

issue is what her intention was in doing so. There is no evidence in the record to




                                            11
establish that Ramirez—an operator of the machine, not a manager—acted deliberately

with intent to operate the equipment in violation of the safety protocol. To the contrary,

Ramirez’s deposition indicates that she believed Wright indicated it was “okay” to “push

the button to close the door” on the machine. There is no evidence in the record that

Mar-Bal deliberately removed an equipment safety guard from injection molding

machine number 4.

      {¶34} Wright’s assignment of error is without merit.

      {¶35} The judgment of the Geauga County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in judgment only.




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