[Cite as Martin v. Morgan Cty. Agricultural Soc., 2013-Ohio-3106.]


                                       COURT OF APPEALS
                                     MORGAN COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



EDWARD and AMY MARTIN                                      JUDGES:
                                                           Hon. W. Scott Gwin, P. J.
        Plaintiffs-Appellants                              Hon. Sheila G. Farmer, J.
                                                           Hon. John W. Wise, J.
-vs-
                                                           Case No. 12 AP 0009
MORGAN COUNTY AGRICULTURAL
SOCIETY

        Defendant-Appellee                                 OPINION




CHARACTER OF PROCEEDING:                               Civil Appeal from the Court of Common
                                                       Pleas, Case No. 11 CV 0130


JUDGMENT:                                              Reversed and Remanded



DATE OF JUDGMENT ENTRY:                                July 12, 2013



APPEARANCES:

For Plaintiffs-Appellants                              For Defendant-Appellee

MARK E. DEFOSSEZ                                       KATHERINE A. CLEMONS
CURTIS M. FIFNER                                       MARKESBERY & RICHARDSON
THE DONAHEY LAW FIRM                                   Post Office Box 6491
495 South High Street, Suite 300                       Cincinnati, Ohio 44206
Columbus, Ohio 43215
Morgan County, Case No. 12 AP 0009                                                        2

Wise, J.

      {¶1}   Appellants Edward and Amy Martin appeal the decision of the Court of

Common Pleas, Morgan County, which granted summary judgment in favor of Appellee

Morgan County Agricultural Society in an action alleging employer intentional tort,

negligence, and other claims. The relevant facts leading to this appeal are as follows.

      {¶2}   In February 2009, Appellant Edward began working at appellee’s golf

course, as part of the county’s public works relief program. Among his job duties was

cutting grass with a Toro Reelmaster 216 riding lawn mower.

      {¶3}   On July 24, 2009, Edward was allegedly injured when he reached with his

hand to clean off the Toro’s rollers while the blades on the mower's reels were still

spinning. According to Edward’s deposition testimony, he had hit the switch to shut the

blades off, but he subsequently theorized that the switch may have only turned off

halfway and then popped back into an “on” position. See Edward Martin Depo. at 72-73.

      {¶4}   On July 21, 2011, appellants filed a complaint in the Morgan County Court

of Common Pleas alleging, inter alia, employer intentional tort and negligence.

Appellants named as defendants the Morgan County PWRE (a relief program under the

Morgan County DJFS), the Morgan County Fairgrounds Golf Course, the Toro

Company, one John Doe Corporation, and five John Does.

      {¶5}   Appellants subsequently substituted, as defendants, Morgan County for

Morgan County PWRE, and Appellee Morgan County Agricultural Society for the

Morgan County Fairgrounds Golf Course. However, Morgan County was dismissed in

June 2011, and the Toro Company was dismissed in November 2011. Furthermore, it
Morgan County, Case No. 12 AP 0009                                                      3


does not appear that service was ever perfected on the John Doe corporation or the

individual John Does.

      {¶6}   On July 30, 2012, Appellee Morgan County Agricultural Society, the sole

remaining party-defendant, filed a motion for summary judgment.

      {¶7}   On August 22, 2012, the trial court rendered a judgment entry granting

summary judgment in favor of appellee.

      {¶8}   On September 4, 2012, appellants filed a notice of appeal. They herein

raise the following three Assignments of Error:

      {¶9}   “I.    THE TRIAL COURT ERRED BY PERMITTING APPELLEE TO

ASSERT AN AFFIRMATIVE DEFENSE IT HAD PREVIOUSLY WAIVED.

      {¶10} “II. BECAUSE THE DEFENSE OF EMPLOYER IMMUNITY PURSUANT

TO R.C. § 4123.74 AND R.C. § 4127.10 WAS WAIVED, THE TRIAL COURT ERRED

BY APPLYING AN INTENT STANDARD, AS OPPOSED TO A NEGLIGENCE

STANDARD.

      {¶11} “III.   IF APPELLANT MARTIN IS CONSIDERED TO BE APPELLEE'S

‘EMPLOYEE,’ THE TRIAL COURT ERRED BY DETERMINING THAT HE DID NOT

SATISFY THE REBUTTABLE PRESUMPTION OF INTENT TO INJURE PURSUANT

TO R.C. § 2745.01(C).”

                                                  I.

      {¶12} In their First Assignment of Error, appellants contend the trial court erred

in implicitly permitting appellant to assert certain statutory employer immunity defenses.

We agree.
Morgan County, Case No. 12 AP 0009                                                     4


      {¶13} R.C. 4127.10 addresses the liability of employers participating in public

work relief. It states as follows: “Employers who comply with sections 4127.01 to

4127.14 of the Revised Code, are not liable to respond in damages at common law or

by statute for injury or death of any work-relief employee, wherever occurring. ***.” For

purposes of R.C. Chapter 4127, “employer” is defined, inter alia, as a “state agency

having supervision or control of work-relief employees.” See R.C. 4127.01(C).

      {¶14} R.C. 4127.10 utilizes language similar to that in R.C. 4123.74, which

states in pertinent part: “Employers who comply with section 4123.35 of the Revised

Code shall not be liable to respond in damages at common law or by statute for any

injury, or occupational disease, or bodily condition, received or contracted by any

employee in the course of or arising out of his employment ***.”

      {¶15} Appellee Morgan County Agricultural Society herein asserts in its

response brief that during the development of the case below, “it became apparent that

Appellee indeed met the statutory definition of employer, as defined by R.C. 4127.01.”

Appellee Brief at 9. Appellee also seems to assert, with little explanation, that it is a

“state agency” for purposes of the statute. See Appellee Brief at 12. Appellee thus

urges that appellants’ exclusive remedy in this case is the workers’ compensation

system. Appellee Brief at 9.

      {¶16} We note that in its motion for summary judgment, appellee argued that

Edward “either has to successfully present an intentional tort claim pursuant to the

statute, or he has no cause of action against the fairgrounds because he is barred from

asserting an ordinary negligence claim against his employer.” Summary Judgment

Motion at 6. However, appellee never took this legal position via asserting a defense of
Morgan County, Case No. 12 AP 0009                                                       5


statutory immunity in its answer or by filing an amended answer with such a defense. In

fact, it is undisputed that appellee originally asserted that Edward was not appellee’s

employee. Although there appears to be no case law on point as to work-relief

situations under R.C. 4127.10, appellants direct us to Hamilton v. East Ohio Gas Co.

(1973), 47 Ohio App.2d 55, for the proposition that the employer immunity defense set

forth in R.C. 4123.74 must be pled as an affirmative defense under App.R. 8(C). In

Hamilton, the Ninth District Court of Appeals held: "If all or any one of those causes of

actions are barred by R.C. 4123.74 or 4123.74.1, the defendants should properly plead

their contention as a defense, and then it could be tested by a proper motion under Civil

Rule 56, or otherwise." Id. at 58. The Ninth District's decision in Hamilton has been

relied upon by the First District Court of Appeals in Merritt v. Saalfeld, Hamilton App.No.

C-840719, 1985 WL 11484, as well as the Third District Court of Appeals in Schroerluke

v. AAP St. Mary's Corp., Auglaize App.No. 2-95-27, 1996 WL 65595.

      {¶17} Appellee did maintain in its answer that appellants’ claims were “barred by

the exclusive remedies set forth in the Ohio Constitution and the Ohio Revised Code.

***” See Answer of Appellee at para. 8. Appellee also included this statement in its

answer: "This Defendant hereby provides notice of its retention to rely on other

affirmative defenses as may be discovered or become apparent hereafter and

specifically reserves the right to amend this answer to assert additional affirmative

defenses as discovery progresses." Id. at para. 16. However, “[a] party seeking to

assert an affirmative defense pursuant to Civ.R. 8(C) is instructed by the language of

the rule that the listed affirmative defenses must be ‘set forth affirmatively.’ Courts

construing this language have determined that a party must set forth the listed
Morgan County, Case No. 12 AP 0009                                                       6

affirmative defenses with specificity or else they are waived.” Taylor v. Merida Huron

Hospital of Cleveland Clinic Health System (2000), 142 Ohio App.3d 155, 157, 754

N.E.2d 810, citing Arthur Young & Co. v. Kelly (1993), 88 Ohio App.3d 343, 348, 623

N.E.2d 1303, 1306.

      {¶18} Accordingly, we hold the trial court erred as a matter of law in permitting

appellee to rely on the statutory immunity provided in R.C. 4127.10 for purposes of

summary judgment under the circumstances of this case. In so holding, we do not reach

the issue of whether Edward was or was not an employee of appellee under R.C.

Chapter 4127. Appellants’ First Assignment of Error is sustained.

                                                II.

      {¶19} In their Second Assignment of Error, appellants contend the trial court

erred in applying an “intent” standard, as opposed to a “negligence” standard, in

reaching its decision to grant summary judgment in favor of appellee. We agree.

       {¶20} As an appellate court reviewing summary judgment issues, we must stand

in the shoes of the trial court and conduct our review on the same standard and

evidence as the trial court. Porter v. Ward, Richland App.No. 07 CA 33, 2007–Ohio–

5301, ¶ 34, citing Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 506

N.E.2d 212.

       {¶21} Civ.R. 56(C) provides, in pertinent part:     “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. * * * A summary
Morgan County, Case No. 12 AP 0009                                                        7


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. * * * ”

       {¶22} Appellants in the case sub judice essentially present a two-pronged

argument: First, appellants maintain that there is a genuine issue of material fact as to

whether appellee negligently injured Appellant Edward. Secondly, appellants argue that

to the extent that comparative negligence exists in this matter, such an issue should be

resolved by a jury.

       {¶23} The record before us provides evidence that during time periods when

Edward was doing his mowing work, appellee was operating the mower contrary to

Toro’s safety specifications. Included in the record before us is the deposition of

Herman “Bud” Christopherson, who was an engineer for Toro from 1965 to 2000 and

assisted in the design and testing of the Reelmaster 216 mower. According to

Christopherson’s inspection of the mower in question, two safety interlocks had been

bypassed or removed at the time of the incident. See Christopherson Depo. at 25-26.1

The design of these interlocks was such that if the operator either raised the mowing

reels or lifted his or her weight off the seat, the mowing reels would stop spinning. Id. at

24.

       {¶24} In its response brief, appellee, while maintaining its appellate argument

that Edward was an “employee” and that negligence is not the standard, does not

1
  Appellee maintains there were a total of two Reelmaster mowers at the golf course.
See Appellee’s Brief at 5.
Morgan County, Case No. 12 AP 0009                                                     8


dispute that “taking this as an ordinary negligence case, there may be genuine issues of

material fact for a jury that could render the matter inappropriate for summary

judgment.” Appellee Brief at 12. Furthermore, because appellants have alleged that the

injury to Edward occurred when he used his hand to clean off the mower reels,

comparative negligence may be extant in this case. This Court has recognized that

“[i]ssues of comparative negligence are for the jury to resolve unless the evidence is so

compelling that reasonable minds can reach but one conclusion.” Ortner v. Kleshinski,

Morrison, & Morris, Richland App.No. 02-CA-4, 2002-Ohio-4388, ¶ 26, citing Simmers v.

Bentley Construction Company (1992), 64 Ohio St.3d 642, 597 N.E.2d 504, 1992-Ohio-

42.

       {¶25} Upon review, we find that genuine issues of material fact exist as to

negligence and comparative negligence, and that the trial court erred in granting

summary judgment in favor of appellee.

       {¶26} Appellants’ Second Assignment of Error is sustained.

                                              III.

       {¶27} In their Third Assignment of Error, appellants contend that if he is

considered to be appellee's “employee,” the trial court erred by implicitly determining

that he did not satisfy the rebuttable presumption of intent to injure pursuant to R.C.

2745.01(C).

       {¶28} R.C. 2745.01, which addresses requirements for employer liability, states

in pertinent part:

       {¶29} “(A) In an action brought against an employer by an employee, or by the

dependent survivors of a deceased employee, for damages resulting from an intentional
Morgan County, Case No. 12 AP 0009                                                        9


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.

         {¶30} “ ***.

         {¶31} “(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.

         {¶32} “ ***.”

         {¶33} Based on our determinations in regard to appellant’s previous assigned

errors, we find the issues raised in appellants’ Third Assignment of Error to be moot in

the present appeal.

         {¶34} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Morgan County, Ohio, is hereby reversed and remanded for further

proceedings.

By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.

                                             ___________________________________


                                             ___________________________________


                                             ___________________________________

                                                                  JUDGES
JWW/d 0612
Morgan County, Case No. 12 AP 0009                                           10


            IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




EDWARD and AMY MARTIN                       :
                                            :
       Plaintiffs-Appellants                :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
MORGAN COUNTY AGRICULTURAL                  :
SOCIETY                                     :
                                            :
       Defendant-Appellee                   :         Case No. 12 AP 0009




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

judgment of the Court of Common Pleas of Morgan County, Ohio, is reversed and

remanded for further proceedings consistent with this opinion.

       Costs assessed to appellee.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
