[Cite as Smith v. Esser & Sons, Inc., 2013-Ohio-1095.]


STATE OF OHIO                     )                            IN THE COURT OF APPEALS
                                  )ss:                         NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

RYAN SMITH, et al.                                             C.A. No.     12CA010150

        Appellants

        v.                                                     APPEAL FROM JUDGMENT
                                                               ENTERED IN THE
RAY ESSER & SONS INC.                                          COURT OF COMMON PLEAS
                                                               COUNTY OF LORAIN, OHIO
        Appellee                                               CASE No.   09CV161264

                                 DECISION AND JOURNAL ENTRY

Dated: March 25, 2013



        CARR, Judge.

        {¶1}     Appellant, Ryan Smith, appeals the judgment of the Lorain County Court of

Common Pleas granting summary judgment in favor of appellee, Ray Esser & Sons, Inc. This

Court reverses and remands.

                                                         I.

        {¶2}     On June 30, 2008, Ryan Smith (“Ryan”) began working for Esser & Sons, Inc.

(“Esser”), a commercial plumbing contractor.                  Ryan was a seventeen-year-old high school

student at that time, and he was working as an intern through a school sponsored program. Esser

assigned Ryan to work on a leaking fire hydrant. Charles Clouser, another Esser employee,

acted as foreman for the project, and Brian Rann, also a full-time Esser employee, acted as the

third member of the crew.

        {¶3}     On Ryan’s first day on the job, the crew used an excavator to dig a trench that was

approximately seven feet deep around the leaking hydrant. Over the course of the next two days,
                                                  2


rainwater filled the trench. On July 2, 2008, the crew returned to the project and pumped

rainwater out of the trench before continuing its work. Clouser directed Rann to take the

company truck and pick up parts for the project while Clouser and Ryan began working on the

hydrant. Though the bottom of the trench remained muddy and the walls were wet, Clouser sent

Ryan down into the trench to chip away at the brick thrust block with an electric chipping

hammer. The thrust block had to be chipped away in order to access the area in the piping that

required repair. Ryan found this task difficult given the muddy conditions.

        {¶4}     As Ryan was pulling out debris from the thrust block, the trench started to rapidly

fill with water. Ryan attempted to stand up and get out of the trench, but he was unable to do so

because his left hand was trapped. Ryan became submerged in the rising water. He was

eventually able to escape the trench, although there is competing evidence as to whether he was

able to free himself or whether Clouser pulled him out of the water. As a result of the incident,

Ryan suffered significant injuries to his hand, including a torn tendon and six fractures to his

middle finger.

        {¶5}     On March 19, 2009, Ryan commenced a workplace intentional tort action against

Esser in the Lorain County Court of Common Pleas. Ryan’s parents, Becky and Randy Smith,

asserted a claim for loss of consortium. Thereafter Esser filed a motion for summary judgment.

Although R.C. 2745.01 sets forth the standard to be applied in an employer intentional tort case,

the statute was being challenged before the Supreme Court of Ohio at the time Esser filed its

motion. Thus, Esser acknowledged that the statute was being challenged and instead argued that

Esser was entitled to summary judgment under the common law standard for employer

intentional torts.
                                               3


       {¶6}   On March 22, 2010, Ryan submitted his brief in opposition to the motion for

summary judgment. The next day, on March 23, 2010, the Supreme Court decided two cases

upholding the constitutionality of R.C. 2745.01. Stetter v. R.J. Corman Derailment Servs.,

L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029; Kaminski v. Metal & Wire Prods. Co., 125 Ohio

St.3d 250, 2010-Ohio-1027. On March 29, 2010, Esser filed a reply brief and asserted that it was

entitled to summary judgment based on the standard set forth in Kaminski, Stetter, and R.C.

2745.01. On March 30, 2010, the trial court granted the motion. The court’s analysis consisted

of one sentence, followed by a citation to R.C. 2745.01 and Kaminski. On appeal, this Court

reversed the judgment on the basis that the trial court granted summary judgment on grounds not

specified in the motion for summary judgment. Smith v. Ray Esser & Sons, Inc., 9th Dist. No.

10CA009798, 2011-Ohio-1529.

       {¶7}   On remand, Esser filed a second motion for summary judgment on September 30,

2011. Ryan filed a memorandum in response to the motion, and Esser replied thereto. Ryan also

filed a surreply with leave of court. The trial court heard oral arguments on the motion on

December 14, 2011, and subsequently issued a journal entry granting the motion without

analysis.

       {¶8}   On appeal, Smith raises one assignment of error.

                                              II.

                                ASSIGNMENT OF ERROR

       [BECAUSE] GENUINE ISSUES OF MATERIAL FACT EXIST UPON
       PLAINTIFFS’ WORKPLACE INTENTIONAL TORT THEORY OF
       LIABILITY, SUMMARY JUDGMENT WAS IMPROVIDENTLY GRANTED
       AS A MATTER OF LAW.

       {¶9}   In his assignment of error, Ryan contends that the trial court erred in granting

summary judgment when there were genuine issues of material fact. This Court agrees.
                                                4


       {¶10} In support of his assignment of error, Ryan contends that Esser was aware of the

hazardous working conditions in the trench, and that it deliberately ignored those conditions

despite being substantially certain that they would lead to injuries. Ryan further contends that

Esser deliberately ignored federal safety regulations, and disregarded known threats to Ryan’s

safety. Ryan concludes that because Esser was substantially certain that sending him into the

trench would lead to injury, the trial court erred in granting summary judgment in favor of Esser.

       {¶11} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

       {¶12} Civ.R. 56 is an “extraordinary” procedure that “represents a shortcut through the

normal litigation process.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161 (1990). Pursuant to Civ.R. 56(C), summary judgment is proper if:

       No 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 party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

       {¶13} While the moving party bears the initial burden of showing that no genuine issue

of material fact exists for trial, once the moving party satisfies its burden, the nonmoving party

may not rest upon the mere allegations or denials of the party’s pleadings. Dresher v. Burt, 75

Ohio St.3d 280, 292-293 (1996). Rather, the burden then shifts to the non-moving party to

respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts which
                                                 5


show that there is a genuine issue of material fact for trial. Id. at 293. Civ.R. 56(C) designates

the “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts

of evidence, and written stipulations of fact, if any, timely filed in the action,” as proper in

demonstrating 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. Id. at 292-293. Throughout, the evidence must be

construed in favor of the non-moving party. Temple, 50 Ohio St.2d at 327. A disputed fact is

material if it impacts the outcome of the case under the applicable substantive law. Russell v.

Interim Personnel, Inc., 135 Ohio App.3d 301, 304 (6th Dist.1999).

       {¶14} In Fyffe v. Jeno’s, Inc., 59 Ohio St.3d 115 (1991), the Supreme Court of Ohio

revisited its common-law employer intentional tort jurisprudence, and set forth the following

standard:

       [I]n order to establish “intent” for the purpose of proving the existence of an
       intentional tort committed by an employer against his employee, the following
       must be demonstrated: (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.

Fyffe at paragraph one of the syllabus.

       {¶15} In 2004, the Ohio General Assembly enacted R.C. 2745.01, an employer

intentional-tort statute. In both Kaminski v. Metal & Wire Prods. Co., 125 Ohio St.3d 250, 2010-

Ohio-1027, and Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-

Ohio-1029, the Supreme Court upheld the statute in the face of several constitutional challenges.

“The net result of these two decisions is to confirm the constitutional validity of R.C. 2745.01.”

Kaminski at ¶ 2. In reaching this conclusion, the high court noted that while R.C. 2745.01 was
                                                  6


intended to modify the Fyffe standard by permitting recovery for employer intentional torts only

when an employer acts with specific intent to cause an injury, it did not eliminate the common-

law cause of action for an employer intentional tort. Kaminski at ¶ 56-57. In this case, Ryan

maintains that in light of Esser’s conduct, he is entitled to recovery under the standard set forth in

R.C. 2745.01.

       {¶16} R.C. 2745.01(A) states, “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.”           For the purposes of this statute, the term

“‘substantially certain’ means that an employer acts with deliberate intent to cause an employee

to suffer an injury, a disease, a condition, or death.” R.C. 2745.01(B). The statute further

provides that the “[d]eliberate 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.” R.C. 2745.01(C).

       {¶17} In its motion for summary judgment, Esser argued that the accident in this case

was not foreseeable, and that Ryan’s claim was “the metaphysical conversion of an ordinary

negligence case into one for employer intentional tort.” Esser emphasized that there was no

evidence that the separation of a mechanical compression joint (“MCJ”) might cause injury.

Esser continued that even if it was aware of the dangerous condition, there was no evidence that

it knew the injury to Ryan was substantially certain to occur. Esser attached the affidavits of

Randy Esser and Charles Clouser in support of its motion, as well as the diagram of the trench.
                                                 7


Ryan promptly responded to the motion, and attached the depositions of Randy Esser and

Charles Clouser, his own affidavit, and numerous additional documents in support of his position

that there was a question of material fact as to whether Esser was substantially certain that its

actions would cause injury.

          {¶18} In his affidavit, Ryan stated that he had no experience with excavations or trench

work on the date he was sent into the trench. Ryan did everything he was told by his foreman,

Charles Clouser, and he was eager to satisfy his employer because the job had been arranged

through a program he was taking at the Lorain County Vocational School. The trench was at

least seven feet deep and all of the walls were exposed. OSHA regulations require that trench

walls are “sloped at an angle not steeper than one and one-half horizontal to one vertical,” unless

the employer uses another acceptable practice set forth in the code of federal regulations. 29

C.F.R. 1926.652(b)(1)(i) Here, Ryan averred that the walls in the trench were vertical, or nearly

so, and this was particularly true with the wall that ran parallel to the fire hydrant piping. For

nearly the entire length of the piping, the wall was either against or a few inches away from the

piping.

          {¶19} When Clouser ordered Ryan into the trench to chip away at the thrust block,

Clouser remained almost continually above ground while Ryan was at the bottom of the trench.

Ryan averred that “[a]ll of the sudden, water started rushing into the trench. The vertical pipe

had shifted and pinned my hand against the exposed trench wall.” Ryan further averred that had

the trench wall been slopped at an angle, his hand would never have been pinned. Ryan stated,

“The sloped wall would have been approximately a foot or more away from the pipe at the point

where I was digging. My hand was crushed only because the wall ran parallel to the vertical

piping and there [were] only a few inches in between. That would not have been the case if the
                                                8


wall was sloped. I would have been able to pull my hand away before it was pinned.” Ryan also

averred that the trench did not have a safety box or shoring. Ryan stated that he would have been

able to extricate his hand if he would have had something to grab onto with his free hand instead

of the muddy trench walls. At the time of the incident, Ryan was unaware of any regulations

pertaining to excavations or trench safety training for employees.

          {¶20} In his deposition testimony, Randy Esser stated that his company has dug

thousands of trenches since its inception in 1961. During his inspection of the hydrant in this

case located at the Foxes Lair Apartments in Elyria, Esser was able to conclude that there was a

leak. OSHA regulations require that when water accumulation is controlled by the use of water

removal equipment, “the * * * operations shall be monitored by a competent person to ensure

proper operation.” 29 C.F.R. 1926.651(h)(2). Moreover, OSHA regulations require that “[d]aily

inspections of excavations * * * shall be made by a competent person for evidence of a situation

that could result in possible cave-ins * * *.” 29 C.F.R. 1926.651(k)(1). Esser admitted that at

the time of the incident, Clouser, who was designated as the foreman on the site, “did not meet

the criteria to be a competent person * * * [b]ecause he had not been to the OSHA class or the

training class.” Esser further stated that “we did not realize what competent person meant at that

time.” Esser admitted that on the date of the incident, Clouser did not properly inspect the

trench, verify the ratio requirements with regard to sloping, or ensure that there was a means of

egress.

          {¶21} OSHA regulations require that “[e]mployees shall not work in excavations in

which there is accumulated water, or in excavations in which water is accumulating, unless

adequate precautions have been taken to protect employees against the hazards posed by water

accumulation.     The precautions necessary to protect employees adequately vary with each
                                                 9


situation, but could include special support or shield systems to protect from cave-ins * * *.” 29

C.F.R. 1926.651(h)(1). While Esser sometimes rents safety boxes and uses shore protections at a

trench site, neither was done in this case. When asked if installing shoring and using a safety

box would protect workers from injury, Esser responded, “Oh, absolutely, [] I agree with that a

hundred percent.” Esser further conceded that he normally hires a subcontractor for projects that

require trenches deeper than four feet, and that those subcontractors use both safety boxes and

shoring. Esser testified that on one prior project where his own son was sent into a trench, the

company had rented a safety box. In regard to this project, however, Esser made a “deliberate

decision” not to hire a subcontractor, or use a safety box or install shoring, because he considered

this job a “simple repair.” With respect to the trench in this case, Esser knew that the company

was required to comply with OHSA regulations regarding the size of the trench, and he knew at

the time of the incident that the trench in this case did not comply with those standards. Esser

further admitted that he understood that failing to comply with the regulations increased the

likelihood that an injury would occur. Moreover, Esser admitted that he knew Ryan was a 17-

year-old intern who had “zero” days of experience on the date he was sent into the trench.

       {¶22} Charles Clouser was also deposed in this matter. Clouser had several periods of

employment with Esser since 1989, the latest of which began after he was released from prison

in 2005. Clouser confirmed that Esser hired subcontractors for most projects that involved

trenches deeper than four feet, and that he personally had used safety boxes and installed

shoring. Clouser further stated that he would have taken either safety precaution in this case if

Randy Esser had directed him to do so, but Esser gave no such direction. On the date of the

incident, Ryan drove the crew to the job site because Clouser did not have his license. Clouser

was aware that the trench did not comply with several federal safety regulations. Clouser
                                                10


maintained that while Ryan was using the electric chipping hammer, Clouser was also in the

trench getting the socket set laid. Clouser clarified that the muddy condition of the trench was

due not only to the rain water, but also to the leaking hydrant. Clouser also noted that Ryan did

everything he was asked at the job site, and that he did not do anything wrong.

       {¶23} The affidavits attached to Esser’s motion indicate that Ryan was submerged under

water for approximately one minute before he reached the surface. After Ryan was transported

to the hospital and water was pumped out of the trench, Esser discovered a buried MCJ located

approximately one foot outside the trench. Esser further averred that he did not know of the

existence of the MCJ prior to the accident and that “if [Ryan’s] hand had not been in that

location at the precise moment the buried MCJ separated, he would not have been injured[.]”

Esser admitted in his affidavit that he was cited and fined by OSHA for failing to comply with

regulations regarding the construction of trenches, and that he was fined by the U.S. Dept. of

Labor for permitting Ryan to drive a company truck to the job site, but contended that the cause

of the accident in this case had nothing to do with the OSHA or U.S. Dept. of Labor violations.

In his own affidavit, Clouser stated that the water pressure in the system caused the MCJ to

separate after the thrust block had been removed. Clouser averred that at the moment when Ryan

bent down to pick up debris from the removal of the thrust block, the pressure caused the

assembly to shift, and resulted in Ryan’s hand becoming trapped. Both Esser and Clouser

averred that they had not experienced a situation even remotely similar in their plumbing careers.

       {¶24} Given the evidence presented by the parties, the trial court erred in granting

summary judgment in favor of Esser. At the time of the incident, Randy Esser was aware that

the OSHA regulations pertaining to excavations were specifically designed to ensure employee

safety, and there is no dispute that he blatantly disregarded those safety regulations in this case.
                                                11


The already muddy conditions in the trench were exaggerated by two days of rainfall. In the face

of these dangerous conditions, Esser neither made an effort to ensure that the trench was properly

sloped, nor did he put a competent person in place to inspect the dangerous conditions on the

date of the incident. With full knowledge that certain safeguards could be put in place to ensure

Ryan’s safety, Esser and Clouser made a deliberate decision not to use a safety box or install

shoring before sending Ryan into the trench. It is clear that Esser intentionally decided not to

take necessary safety precautions with Ryan despite the fact that it had made a practice of putting

such protections in place on prior projects, including one project involving Randy Esser’s son.

Ryan averred that his hand would not have been crushed if the wall had been sloped properly,

and that he could have extricated himself sooner had a safety box or shoring been available.

Despite the fact that Esser and Clouser were aware that Ryan was a seventeen-year-old intern

who had zero days of experience working in a trench, Ryan was sent into the trench to work on

the thrust block while Clouser, a full-time employee, mostly remained above ground. When

construing these facts in the light most favorable to the non-moving party, reasonable minds

could conclude that Esser was substantially certain that sending Ryan into the trench would

result in injury. Temple, 50 Ohio St.2d at 327. Thus, it was improper to grant summary judgment

in favor of Esser.

       {¶25} Ryan’s assignment of error is sustained.

                                               III.

       {¶26} Ryan Smith’s assignment of error is sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.
                                                12




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR


APPEARANCES:

PAUL W. FLOWERS, Attorney at Law, for Appellants.

W. CRAIG BASHEIN, Attorney at Law, for Appellants.

KENNETH J. KNABE, Attorney at Law, for Appellants.

JOHN A. FIOCCA, JR. and MATTHEW C. WORKMAN, Attorneys at Law, for Appellee.
