[Cite as McQuillen v. FeeCorp Indus. Servs., 2016-Ohio-1590.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



MICHAEL McQUILLEN                                         JUDGES:
                                                          Hon. William B. Hoffman, P. J.
        Plaintiff-Appellant                               Hon. John W. Wise, J.
                                                          Hon. Craig R. Baldwin, J.
-vs-
                                                          Case No. 15 CA 36
FEECORP INDUSTRIAL SERVICES

        Defendant-Appellee                                OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 14 CV 093


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               April 18, 2016



APPEARANCES:

For Plaintiff-Appellant                               For Defendant-Appellee

MARK E. DEFOSSEZ                                      J. STEPHEN TEETOR
CURTIS M. FIFNER                                      DAVID G. JENNINGS
THE DONAHEY LAW FIRM                                  ISAAC WILES BURKHOLDER
495 South High Street                                 & TEETOR LLC
Suite 300                                             Two Miranova Place, Suite 700
Columbus, Ohio 43215                                  Columbus, Ohio 43215
Fairfield County, Case No. 15 CA 36                                                    2

Wise, J.

       {¶1}   Plaintiff-Appellant Michael McQuillen appeals the decision of the Court of

Common Pleas, Fairfield County, which granted summary judgment in favor of

Defendant-Appellee FeeCorp Industrial Services, Inc. in an employer intentional tort

action filed by appellant. The relevant facts leading to this appeal are as follows:

       {¶2}   Appellant McQuillen began working for Appellee FeeCorp in March 2009.

One of the services provided by the company is industrial vacuuming of ash and other

byproducts. On May 21, 2009, appellant was injured while vacuuming wet crushed coal

inside a large chamber at a power and light plant in Aberdeen, Ohio. Appellant was with

two other workers in the chamber, all engaged in vacuuming. Another employee was

assigned to a “hole watch” position just outside the chamber, and one vacuum truck

operator was supposed to stay with the vehicle, located as much as 200 feet away.

       {¶3}   Appellant recalled that immediately before the accident in question, he had

his fingertips wrapped over the front edge of the 6-inch diameter vacuum hose. He was

purportedly using his left hand to move the hose back and forth as he sucked up the dust

in the power plant. At some point during the vacuuming process, when one of his co-

workers moved behind where he was carrying the hose, appellant lost control of the hose,

and it sucked up his arm. See McQuillen Deposition at 60, 67-71, 76-77.1

       {¶4}   The manufacturer of the vacuum truck unit at issue also made safety

equipment to be attached to the hose of the truck. The equipment in question was



1  Appellee's employees were typically given a broom handle to attach to the end of the
hose with duct tape to allow their employees to use the hose without having to grab its
mouth. (McQuillen Deposition II at 71). Unfortunately, on the day in question, appellee
did not provide him with a broom handle. Id. at 55. However, the broom handle
arrangement is not the focus of appellant’s tort claims.
Fairfield County, Case No. 15 CA 36                                                        3


generally referred to as a “safety T,” essentially a vacuum brake or vacuum relief device.

The safety T is attached between the end of the vacuum hose and the truck. There is

additionally a lanyard that is attached to the safety T and controlled by the individual or

crew working with the vacuum hose. The supervisor on duty that day, Brian Wilcoxon,

specifically recalled: "We usually use them when you're back in - when you're working on

multiple levels or something where the operator of the truck and the truck is not visible by

the crew is when we use them." Wilcoxon Deposition at 7, 37.

       {¶5}   Following a dismissal of appellant’s first complaint without prejudice in 2013,

appellant re-filed his complaint on February 5, 2014 against appellee in the Fairfield

County Court of Common Pleas. He therein alleged an employer intentional tort under

R.C. 2745.01(C). Appellee filed an answer on March 4, 2014.

       {¶6}   On December 11, 2014, appellee filed a motion for summary judgment.

Appellant filed a memorandum contra on February 10, 2015, and appellee filed a reply

on February 26, 2015. Appellee argued that it did not deliberately intend to injure

appellant, and that appellant was unable to meet the rebuttable presumption of intent to

injure pursuant to R.C. 2745.01(C).

       {¶7}   On May 19, 2015, the trial court granted appellee's motion for summary

judgment.

       {¶8}   On June 18, 2015, appellant filed a notice of appeal. He herein raises the

following sole Assignment of Error:

       {¶9}   “I. THE TRIAL COURT ERRED BY DETERMINING THAT APPELLANT

MCQUILLEN DID NOT SATISFY THE REBUTTABLE PRESUMPTION OF INTENT TO

INJURE PURSUANT TO R.C. § 2745.01(C).”
Fairfield County, Case No. 15 CA 36                                                            4


                                                   I.

       {¶10} In his sole Assignment of Error, appellant contends the trial court erred in

granting summary judgment in favor of the employer in light of the “equipment safety

guard” language of R.C. 2745.01(C). We disagree.

                                   Summary Judgment Standard

       {¶11} Summary judgment proceedings present the appellate court with the unique

opportunity of reviewing the evidence in the same manner as the trial court. See Smiddy

v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, we

must refer to Civ.R. 56(C) which provides, in pertinent part: “Summary judgment shall be

rendered forthwith if the pleadings, depositions, answers to interrogatories, written

admissions, affidavits, transcripts of evidence in the pending case and written stipulations

of fact, if any, timely filed in the action, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. * * * A

summary judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that reasonable minds can come to

but one conclusion and that conclusion is adverse to the party against whom the motion

for summary judgment is made, that party being entitled to have the evidence or

stipulation construed most strongly in the party's favor. * * *.”

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

it appears a material fact is genuinely disputed. The party moving for summary judgment

bears the initial burden of informing the trial court of the basis for its motion and identifying

those portions of the record that demonstrate the absence of a genuine issue of material

fact. The moving party may not make a conclusory assertion that the non-moving party
Fairfield County, Case No. 15 CA 36                                                           5


has no evidence to prove its case. The moving party must specifically point to some

evidence which demonstrates the non-moving party cannot support its claim. If the

moving party satisfies this requirement, the burden shifts to the non-moving party to set

forth specific facts demonstrating there is a genuine issue of material fact for trial. Vahila

v. Hall (1997), 77 Ohio St.3d 421, 429, 674 N.E.2d 1164, citing Dresher v. Burt (1996),

75 Ohio St.3d 280, 662 N.E.2d 264.

                                Employer Intentional Tort Overview

       {¶13} Generally, an intentional tort involves an act committed with the specific

intent to injure or with the belief that such injury is substantially certain to occur. Jones v.

VIP Dev. Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), citing 1 Restatement of the

Law 2d, Torts, 15, Section 8A (1965). Under the common-law standard set forth in Fyffe

v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d 1108 (1991), an employee in an action

for employer intentional tort could establish intent based on substantial certainty by

demonstrating the following:

       {¶14} “(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 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.” Id.

       {¶15} Subsequent to the Fyffe decision, the General Assembly enacted former

R.C. 2745.01, in Am.H.B. No. 103, 146 Ohio Laws, Part I, 756, 760, effective Nov. 1,

1995, intending to supersede the common law with a more limited statutory cause of
Fairfield County, Case No. 15 CA 36                                                     6

action. See Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 495, 2012-

Ohio-5685, 983 N.E.2d 1253, 1257, ¶ 19 (2012). However, in Johnson v. BP Chemicals,

Inc., 85 Ohio St.3d 298, 306, 707 N.E.2d 1107 (1999), the Ohio Supreme Court held the

1995 version of R.C. 2745.01 “unconstitutional in its entirety.” Id. at the syllabus.

       {¶16} The present version of R.C. 2745.01, effective April 7, 2005, now governs

employer intentional torts in Ohio. It provides in pertinent part as follows:

               (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. * * *.

       {¶17} The General Assembly's intent in enacting R.C. 2745.01 was to restrict

recovery for employer intentional torts to situations in which the employer “acts with

specific intent to cause an injury.” See Stetter v. R.J. Corman Derailment Servs., L.L.C.,
Fairfield County, Case No. 15 CA 36                                                       7


125 Ohio St.3d 280, 2010–Ohio–1029, 927 N.E.2d 1092, ¶ 26. In other words, “*** 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.” Houdek, supra, at ¶25. Under R.C. 2745.01(B),

“substantially certain” means that an “employer acts with deliberate intent to cause an

employee to suffer an injury, a disease, a condition, or death.” Acting with the belief that

an injury is “substantially certain” to occur is not analogous to wanton misconduct, nor is

it “enough to show that the employer was merely negligent, or even reckless.” Talik v.

Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008–Ohio–937, 885 N.E.2d 204, ¶17;

Weimerskirch v. Coakley, 10th Dist. Franklin No. 07AP–952, 2008–Ohio–1681 ¶ 8.

       {¶18} In sum, R.C. 2745.01 requires specific or deliberate intent to cause injury in

order to recover on an employer intentional tort claim. But 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, supra, at ¶12.

                               Equipment Safety Guard Analysis

       {¶19} In the case sub judice, appellant essentially argues that the lanyard-

assisted “safety T” arrangement on the hose/truck system was an “equipment safety

guard” that appellee had deliberately removed, thus satisfying the rebuttable presumption

that appellee intended to injure him per the language of R.C. 2745.01(C).

       {¶20} There is no present legislative definition of “equipment safety guard” or

“deliberate removal” for purposes of R.C. 2745.01(C). As cogently stated by the Sixth

District Court of Appeals: “The General Assembly has not manifested any intent to give

‘equipment safety guard’ or its component terms a technical meaning. There is nothing in
Fairfield County, Case No. 15 CA 36                                                          8


the statute or the case law that suggests the General Assembly intended to incorporate

any of the various equipment-specific or industry-specific definitions of guard appearing

throughout the administrative or OSHA regulations, or for any agency or regulatory

measure to be considered a definitional source.” Fickle v. Conversion Technologies

International, 6th Dist. Williams No. WM-10-016, 2011-Ohio-2960, ¶ 34. Furthermore,

“[t]he General Assembly did not make the presumption applicable upon the deliberate

removal of any safety-related device, but only of an equipment safety guard, and we may

not add words to an unambiguous statute under the guise of interpretation.” Fickle, supra,

at ¶ 42 (emphasis added), citing Davis v. Davis, 115 Ohio St.3d 180, 873 N.E.2d 1305,

2007–Ohio–5049, ¶ 15, 20; State v. Lowe, 112 Ohio St.3d 507, 861 N.E.2d 512, 2007–

Ohio–606, ¶ 15; State ex rel. Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio

St.3d 338, 340, 673 N.E.2d 1351.

       {¶21} The Fickle court ultimately arrived at the following definition: “[A]s 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.” Id. at ¶ 43. This definition was later adopted by the Ohio

Supreme Court in Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317. In

Hewitt, the Court thus rejected a broader interpretation that would include any generic

safety-related items, 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.

       {¶22} This Court recently addressed an employer intentional tort claim resulting

from a workplace accident involving a “skid steer,” a type of Bobcat loader vehicle with
Fairfield County, Case No. 15 CA 36                                                       9

accessories for pavement sweeping. See Beary v. Larry Murphy Dump Truck Serv., Inc.,

5th Dist. No. 2013CA00240, 2014-Ohio-4333, 20 N.E.3d 359. In determining that a

backup alarm on the machine, which was not properly sounding on the day in question,

was not an equipment safety guard for purposes of R.C. 2745.01(C), we stated:

              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 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. *** 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.

       {¶23} Id. at ¶ 17 (emphasis added).

       {¶24} In the case sub judice, based on our review of the record, we concur with

the trial court’s observation that the "safety T" at issue is a device that can be installed

onto the vacuum hose at a point within 50 feet of the opening that allows a user to

automatically shut off the hose, meaning that without a safety T in place, the only way to

tum off the vacuum process is to get to the truck itself. We find it is conceptually similar

to a remote cut-off switch one would find connected to various types of industrial

machines.    Following our rationale in Beary, and assuming arguendo there was a

deliberate removal by appellee, we find the operating employee is not shielded from injury
Fairfield County, Case No. 15 CA 36                                                   10


by the “mere existence” of the safety T device; instead, a worker’s proactive steps to

engage it are necessary to take advantage of the safety it provides on an as-needed

basis.

         {¶25} We therefore hold the safety T device in question does not constitute an

“equipment safety guard” for purposes of R.C. 2745.01(C). As such, appellant failed to

establish a rebuttable presumption pursuant to the statute, and appellee is entitled to a

judgment as a matter of law.2

         {¶26} Accordingly, appellant's sole Assignment of Error is overruled.

                                            Conclusion

         {¶27} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is hereby affirmed.

By: Wise, J.

Baldwin, J., concurs

Hoffman, P. J., dissents.



JWW/d 0314




2  Based on our holding, we find moot appellant’s additional arguments that appellee's
management made a deliberate decision to eliminate the safety T from the vacuum truck
system and that the presumption of intent to injure cannot be rebutted for purposes of a
motion for summary judgment.
Fairfield County, Case No. 15 CA 36                                                           11

Hoffman, P. J., dissenting

        {¶28} I respectfully dissent from the majority opinion. I find the safety T device is

an equipment safety guard for purposes of R.C. 2745.01(C).

        {¶29} The majority cites this Court’s opinion in Beary v. Larry Murphy Dump Truck

Serv., Inc., 5th Dist. No. 2013CA00240, 2014-Ohio-4333, in support of its conclusion.3 I

find Beary is factually distinguishable, and I would disagree with its result.

        {¶30} I concede the backup alarm in Beary did not keep the bystander away from

the zone of danger or cause the skid steer from operating. It served to alert or warn a

bystander of the skid steer’s approach. While the immediate effect was only to alert or

warn, I find the ultimate purpose or effect of the backup alarm was to shield the bystander

from injury. I believe the Beary Court’s interpretation of “shield” was overly restrictive.

        {¶31} In Beary, this Court cited the Ohio Supreme Court’s decision in Hewitt v.

L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, which held “equipment safety

guard” means “a device designed to shield the operator from exposure to or injury by a

dangerous aspect of the equipment.” Id. (Emphasis added). The Hewitt Court adopted

the rationale in Fickle v. Conversion Technologies, Int’l. Inc., 6th District Williams No. WM-

10-016, 2011-Ohio-2960, that while an equipment safety guard encompasses something

more than an actual physical structure erected between the employee and the danger, it

must be a device that is designed to shield the operator from exposure to or injury by a

dangerous aspect of the equipment.” Id. (Emphasis added).




3   I did not participate in the Beary decision.
Fairfield County, Case No. 15 CA 36                                                   12

      {¶32} The use of the term “shield” in both Hewitt and Fickle is as a verb, not a

noun. “To shield” connotes “to protect from”. I believe the backup alarm was designed

to protect/shield a bystander from exposure to the danger of the skid steer backing up.

      {¶33} More fundamentally, I find the safety T device in the case sub judice was

designed to do more than merely alert or warn the operator from danger.           It was

specifically designed to shield the operator from injury. The fact the operator needs to

take a proactive step to engage it on an as-needed basis does nothing to detract from its

intended purpose to shield the operator from injury. Accordingly, I respectfully dissent

from the majority opinion.
