[Cite as Beary v. Larry Murphy Dump Truck Serv., Inc., 2011-Ohio-4977.]


                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

                                                            JUDGES:
JOSEPH BEARY                                        :       Hon. W. Scott Gwin, P.J.
                                                    :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellant         :       Hon. Sheila G. Farmer, J.
                                                    :
-vs-                                                :
                                                    :       Case No. 2011-CA-00048
LARRY MURPHY DUMP TRUCK                             :
SERVICE, INC. ET AL                                 :
                                                    :       OPINION
                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                Civil appeal from the Stark County Court of
                                                        Common Pleas, Case No. 2010-CV-01412

JUDGMENT:                                               Affirmed



DATE OF JUDGMENT ENTRY:                                 September 26, 2011


APPEARANCES:



For Plaintiff-Appellant                                 For Defendant-Appellee

DANIEL M. SUCHER                                        KENNETH A. CALDERONE
Young & Sucher PLL                                      Hanna, Campbell & Powell, LLP
1001 Jaycox Road                                        3737 Embassy Parkway
Avon, OH 44011                                          Akron, OH 44334
[Cite as Beary v. Larry Murphy Dump Truck Serv., Inc., 2011-Ohio-4977.]


Gwin, P.J.

        {¶1}    Plaintiff-appellant Joseph Beary appeals a summary judgment of the Court

of Common Pleas of Stark County, Ohio, entered in favor of defendants-appellees Larry

Murphy Dump Truck Service, Inc. and Road Aggregates, Inc. Appellant assigns two

errors to the trial court:

        {¶2}    “I. THE TRIAL COURT ERRED BY GRANTING DEFENDANT MURPHY

TRUCK SUMMARY JUDGMENT WHERE ISSUES OF FACT EXIST REGARDING THE

EMPLOYER’S LIABILITY FOR AN INTENTIONAL TORT.

        {¶3}    “II. THE TRIAL COURT ERRED IN GRANTING ROAD AGGREGATE’S

MOTION FOR SUMMARY JUDGMENT WHERE AN ISSUE OF FACT EXISTS AS TO

ITS NEGLIGENCE RELATE TO APPELLANT’S INJURY.”

        {¶4}    The record indicates in October of 2009, appellee Larry Murphy Dump

Truck Services, Inc. (hereinafter LMDT) had a contract to repave a parking lot at the

Giant Eagle Grocery in Louisville, Stark County, Ohio. The first day of the project

involved blocking off, prepping, and paving one-half of the parking lot. The second day

of the project involved moving barricades, prepping, and paving the remaining half of

the parking lot. On the second day, foreman Ron Blackburn gave his crew members

their job assignments. Blackburn was employed by Road Aggregates. Matt Hoopes

was told to use a skid steer to clean dirt and debris from the remaining section of the

parking lot before it was repaved. The skid steer, often called a “Bobcat” had a

mechanical broom device to sweep dirt and debris from the area. The skid steer was

owned by LMDT. Hoopes and appellant were employed by LMDT. Larry Murphy owned

both LMDT and Road Aggregates.
Stark County, Case No. 2011-CA-00048                                                    3


      {¶5}   Appellant and another worker were assigned to stretch caution tape

around the remaining parking lot section as a barricade to keep motorists from driving

into the area where they would be paving. As appellant was tying caution tape to an

overturned shopping cart, he was struck from behind by the skid steer, sustaining

serious injuries. At the time of the accident the skid steer was in reverse and the

operator did not know appellant was behind him. Appellant did not know the skid steer

was headed in his direction because he had his back turned to the machine. The skid

steer did not have a backup alarm that would have warned appellant the machine was

approaching him.

      {¶6}   Appellant brought suit against his employer, LMDT, for an intentional tort

pursuant to R.C. Section 2745.01, and against Blackburn’s employer, Road Aggregate,

Inc. for negligence. Both LDMT and Road Aggregate, Inc. are owned by the same

person, Larry Murphy.

      {¶7}   Civ. R. 56 states in pertinent part:

      {¶8}   “Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits, transcripts of

evidence, 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. No evidence or stipulation may be considered except as

stated in this rule. 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
Stark County, Case No. 2011-CA-00048                                                   4


have the evidence or stipulation construed most strongly in the party's favor. A

summary judgment, interlocutory in character, may be rendered on the issue of liability

alone although there is a genuine issue as to the amount of damages.”

      {¶9}   A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts, Houndshell v. American States Insurance Company (1981), 67 Ohio

St. 2d 427. The court may not resolve ambiguities in the evidence presented, Inland

Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc. (1984), 15 Ohio

St. 3d 321. A fact is material if it affects the outcome of the case under the applicable

substantive law, Russell v. Interim Personnel, Inc. (1999), 135 Ohio App. 3d 301.

      {¶10} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court, Smiddy v. The

Wedding Party, Inc. (1987), 30 Ohio St. 3d 35. This means we review the matter de

novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186.

      {¶11} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrate the absence of a genuine issue of fact on a material element

of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280. Once the

moving party meets its initial burden, the burden shifts to the non-moving party to set

forth specific facts demonstrating a genuine issue of material fact does exist, Id. The

non-moving party may not rest upon the allegations and denials in the pleadings, but
Stark County, Case No. 2011-CA-00048                                                      5


instead must submit some evidentiary material showing a genuine dispute over material

facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732.

                                                 I.

       {¶12} Appellant’s first assignment of error addresses the employer intentional

tort claim against LMDT.

       {¶13} The record contains evidence the backup alarm on the skid steer had not

been working for some time. In his deposition, Blackburn testified he examined the

alarm after the accident and found the wires powering the device were corroded to the

extent the wires had actually broken. Another witness stated the wires appeared to have

been intentionally disconnected.

       {¶14} Appellant also argues that neither Road Aggregate nor LMDT had placed

a spotter to warn the skid steer operator and surrounding persons of dangerous

situations.

       {¶15} The trial court cited R.C. 2745.01, which provides an employer cannot be

held liable unless the plaintiff proves the employer committed a tortious act with intent to

injure another or with the belief the injury was substantially certain to occur. The statute

defines substantially certain to mean that an employer acts with deliberate intent to

cause an employee to suffer an injury, disease, condition, or death. The statute also

states: “(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 occupational disease or condition occurs as a direct result.”
Stark County, Case No. 2011-CA-00048                                                  6


      {¶16} The trial court found the backup alarm could be considered a safety-

related devise, but it was not a safety guard. The court noted the statute does not

define the term equipment safety guard, but the Ohio Industrial Commission does. The

Industrial Commission regulations define guard as “a covering, fencing, railing, or

enclosure which shields an object from accidental contact.” The court concluded a

backup alarm is not designed to guard anything. The court also found there was no

evidence of deliberate removal of the wires.

      {¶17} In the recent case of Fickle v. Conversion Technologies International, Inc.

Williams App. No. WM-10-016, 2011-Ohio-2960, the Sixth District Court of Appeals

reviewed a case where an employee suffered injuries to her hand and arm while

operating an adhesive coating machine used in fabrication of laminated roofing material.

The machine in question was equipped with a switch permitting the operator to either

operate the machine continuously or in jog position. In jog mode the machine only runs

so long as the operator depresses the jog button and stops when the operator’s finger

comes off the button. Fickle argued she had never performed or been trained in the job

she was performing, and specifically, on the use of the jog switch. At the time of her

accident she was operating the machine on continuous run.

      {¶18} The station was equipped with an emergency stop cable, which had been

disconnected on the previous job because of problems with the size of the material

being run, but the cable should have been reconnected for the material Fickle was

running when she was injured. It was not common practice to leave the cable

disconnected.
Stark County, Case No. 2011-CA-00048                                                       7


       {¶19} The Sixth District found it was required to construe the terms “equipment

safety guard” and “deliberate removal”, and found it was a question of law for the court.

The appeals court noted the General Assembly has not provided a definition of

“equipment safety guard” or “deliberate removal”, and in the absence of clear legislative

intent to the contrary, words and phrases in a statute must be construed according to

their plain and ordinary meanings. Fickle, at paragraph 29, citing Kunkler v. Goodyear

Tire & Rubber Company (1988), 36 Ohio St. 3d 135, 137, 552 N.E. 2d 477.

       {¶20} The court found there was no indication the General Assembly intended to

incorporate   any    equipment-specific     or   industry-specific   definitions   from   the

Administrative Code or OSHA regulations. The court found we should refrain from

adding words to unambiguous statutes under the guise of interpretation. Fickle at

paragraph 42, citations deleted. The court found the plain, ordinary, and generally

accepted meaning of an undefined statutory term is ascertained by examining dictionary

definitions. Id. at paragraph 29, citations deleted.

       {¶21} The Sixth District Court of Appeals concluded that for purposes of R.C.

2745.01 (C), an equipment safety guard is commonly understood to mean a device

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

dangerous aspect of the equipment.

       {¶22} We find the Fickle court’s reasoning persuasive. We conclude the backup

alarm is not an equipment safety guard pursuant to R. C. 2745.01 (C). We find the trial

court did not err in finding LMDT was entitled to summary judgment as a matter of law.

       {¶23} The first assignment of error is overruled.
Stark County, Case No. 2011-CA-00048                                                    8


                                               II.

      {¶24} In his second assignment of error, appellant argues the trial court erred in

granting summary judgment in favor of Road Aggregates on his cause of action for

negligence.

      {¶25} The trial court did not address any of the issues pertaining to Road

Aggregates, but entered summary judgment in its favor. Because we review the record

de novo, we will address this assignment of error.

      {¶26} Appellant states it is undisputed that a Road Aggregates employee

directed the repaving activities on the day appellant was injured, and so the analysis

regarding an employer intentional tort standard does not apply to Road Aggregates. He

argues Road Aggregate is liable because of Blackburn’s negligence in performing his

work duties in the course of his employment with Road Aggregates.

      {¶27} In its motion for summary judgment, Road Aggregates argued Blackburn

was its employee, but also a loaned servant to LMDT on the day in question. Road

Aggregates asserted it does not engage in any type of paving work or business, was not

a party to the contract for Giant Eagle job, and had no control over or involvement in the

job site or equipment, or over appellant and the other employees of LMDT at the site.

Road Aggregates argued Blackburn, as a loaned servant, worked under LMDT’s

direction and control, and although Blackburn was paid by Road Aggregates, LMDT

reimbursed Road Aggregates for all the wages and expenses associated with the Giant

Eagle job.

      {¶28} Under the loaned servant doctrine, when one party lends his employee to

another for a specific employment, the employee is treated as the employee of the party
Stark County, Case No. 2011-CA-00048                                                    9

to whom he is loaned for anything done during the loan period. Dirksing v. Blue Chip

Architectural Products, Inc. (1994), 100 Ohio App. 3d 213, 224. Where the claim of

liability is predicated on the actions of the loaned servant, the questions is whether the

loaned servant is acting in the business of and under the direction of the general

employer or that of the temporary employer.      Medina v. Harold J. Becker Company,

Inc. 163 Ohio App. 3d 832, 2005-Ohio-5438, at paragraph 57. The issue is which

employer directs and controls the employee’s actions. Ferguson v. Dyer, 149 Ohio App.

3d 380, 2002-Ohio- 1442, at paragraph 15.

      {¶29} In his deposition, Blackburn was questioned extensively about his

employment status. He testified he had worked for LMDT for several years before the

owner, Larry Murphy, formed the Road Aggregates Company. Blackburn testified if

asked where he worked, he would respond Murphy Trucking, and he believed his

classification had evolved into foreman. Blackburn testified he was solely in control of

the job site, but reported to his next in charge, Gary Provance, now deceased.

Provance worked for Road Aggregates, and was in turn answerable to Larry Murphy,

the owner and ultimate boss of both LMDT and Road Aggregates.

      {¶30} Murphy testified in his deposition Provance was the operations manager

and organized jobs. He testified Provance, “wore many hats” and ran the day-to-day

operations.    Provance drafted LMDT’s safety manual, attended LMDT’s safety

meetings, and shared responsibility as its safety officer.      He was paid by Road

Aggregates, but Road Aggregates was reimbursed by LMDT for all Provance’s wages,

taxes, Workers’ Compensation premiums, and all other expenses associated with the

work he did for LMDT.
Stark County, Case No. 2011-CA-00048                                               10


      {¶31} The record indicates Blackburn had been loaned to LMDT for several

years. The duration of time a servant is loaned is not necessarily dispositive. In the

Harold J. Becker case, supra, the borrowed servant relationship spanned several years.

Blackburn testified he considered himself LDMT’s employee and its foreman on the job

site where appellant was injured.

      {¶32} We find reasonable minds could not differ on the question of whether

Blackburn was a loaned servant on the day appellant was injured. We find he was

loaned to LMDT by Road Aggregates, and as such, is entitled to the same immunity for

negligence as employees of LMDT. We find any negligence of Blackburn is not

ascribable in respondeat superior to Road Aggregates. We conclude the trial court did

not err in granting summary judgment in favor of Road Aggregates.

      {¶33} The second assignment of error is overruled.

      {¶34} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur




                                           _________________________________
                                           HON. W. SCOTT GWIN

                                           _________________________________
                                           HON. WILLIAM B. HOFFMAN

                                           _________________________________
                                           HON. SHEILA G. FARMER
WSG:clw 0901
[Cite as Beary v. Larry Murphy Dump Truck Serv., Inc., 2011-Ohio-4977.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                  FIFTH APPELLATE DISTRICT


JOSEPH BEARY                                         :
                                                     :
                           Plaintiff-Appellant       :
                                                     :
                                                     :
-vs-                                                 :       JUDGMENT ENTRY
                                                     :
LARRY MURPHY DUMP
TRUCK SERVICE, INC. ET AL                            :
                                                     :
                                                     :
                        Defendant-Appellee           :       CASE NO. 2011-CA-00048




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment

 of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.




                                                         _________________________________
                                                         HON. W. SCOTT GWIN

                                                         _________________________________
                                                         HON. WILLIAM B. HOFFMAN

                                                         _________________________________
                                                         HON. SHEILA G. FARMER
