[Cite as Hubble v. Haviland Plastics Prods. Co., 2010-Ohio-6379.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PAULDING COUNTY




BENJAMIN HUBBLE,

        PLAINTIFF-APPELLANT,                                        CASE NO. 11-10-07

        v.

HAVILAND PLASTIC PRODUCTS,
CO., ET AL.,                                                        OPINION

        DEFENDANTS-APPELLEES.




                Appeal from Paulding County Common Pleas Court
                            Trial Court No. CI-06-228

                                      Judgment Affirmed

                          Date of Decision: December 27, 2010




APPEARANCES:

        Charles V. Contrada for Appellant

        J. Allen Smith for Appellees
Case No. 11-10-07


WILLAMOWSKI, P.J.

      {¶1} Plaintiff-appellant Benjamin Hubble (“Hubble”) brings this appeal

from the judgment of the Court of Common Pleas of Paulding County granting

summary judgment to defendants-appellees Modern Plastics Recovery, Inc.

(“MPR”) and Drainage Products, Inc. (“DPI”). For the reasons set forth below,

the judgment is affirmed.

      {¶2} MPR is a plastics company that recycles used plastic.         It has a

warehouse in Haviland, Ohio where bales of plastic are stored. Due to contents of

the bales, each bale varies in size from three to five feet in all directions and

weighs between 1,000 and 2,000 pounds. On May 23, 2006, Hubble was working

for MPR in the warehouse where the bales were stacked six high in places. While

in the course of his employment sweeping the aisle between bales, a bale fell and

struck Hubble. Hubble was seriously injured and is now a paraplegic as a result of

the injury. On September 7, 2006, Hubble filed a complaint against Haviland

Plastics, Inc. (“Haviland”) and MPR alleging an employer intentional tort claim.

Haviland and MPR filed motions for summary judgment on September 21, 2007.

Hubble filed its response to the motion on November 13, 2007.

      {¶3} On November 15, 2007, Hubble filed an amended complaint against

MPR and DPI again alleging a claim for employer intentional tort as well as a

claim for negligence. The amended complaint essentially substituted DPI in place



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of Haviland.    MPR and DPI filed an answer to the amended complaint on

November 29, 2007. On March 3, 2008, the parties stipulated that DPI would

replace Haviland in the pending motion for summary judgment. The parties also

stipulated that the motion for summary judgment did not include the claims of

negligence. On June 23, 2008, the trial court overruled the motion for summary

judgment.

       {¶4} On May 10, 2010, DPI and MPR filed a supplemental motion for

summary judgment claiming a change in the law. Hubble filed its memorandum

in opposition to defendant’s motion on June 3, 2010. On July 12, 2010, the trial

court granted the motion for summary judgment.           Hubble appeals from this

judgment and raises the following assignment of error.

       The trial court erred in granting judgment as a matter of law to
       defendants, because reasonable minds could differ as to whether
       defendants had injurious intent, so that the matter should have
       been submitted to a jury.

       {¶5} When reviewing a motion for summary judgment, courts must

proceed cautiously and award summary judgment only when appropriate. Franks

v. The Lima News (1996), 109 Ohio App.3d 408, 672 N.E.2d 245. “Civ.R. 56(C)

provides that before summary judgment may be granted, it must be determined

that (1) no genuine issues 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 the


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Case No. 11-10-07


evidence most strongly in favor of the nonmoving party, that conclusion is adverse

to the nonmoving party.” State ex rel. Howard v. Ferreri (1994), 70 Ohio St.3d

587, 589, 639 N.E.2d 1189. When reviewing the judgment of the trial court, an

appellate court reviews the case de novo. Franks, supra.

      {¶6} The facts in this case are not disputed. MPR’s business is cleaning,

sorting, and grinding recycled plastic for resale. Before the processing of the

plastic, it is stored in bales in a warehouse. Each plastic bale was approximately

four feet high by four feet wide, though the dimensions varied.        Each bale

weighed between 1,000 and 2,000 pounds. The bales were stacked up to six high

in the warehouse. No flats were used to separate the bales. Additionally, the

bales were held together by wires, and occasionally pieces of plastic would slip

from the bales to the floor. At the end of each shift, employees were required to

sweep the floor in the warehouse area.

      {¶7} Hubble was employed by MPR. On May 23, 2006, Hubble was

alone in the warehouse sweeping the floor. He had his back to the bales of plastic

when one of the bales fell from a stack and struck him. Hubble was pinned to the

floor for a length of time and suffered severe permanent injuries. On occasions

prior to Hubble’s injury, agents of MPR had seen bales of the plastic fall to the

floor without any outside force and knew that it was a dangerous condition. In

addition, OSHA had previously cited MPR for failing to properly stack cardboard



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Case No. 11-10-07


and informed MPR that all bundles needed to be stacked in a manner that would

make them stable and secure against sliding or collapse. After Hubble’s accident,

MPR was again cited by OSHA for failing to properly stack materials.

       {¶8} Since the facts are not in question, the only issue before the court is

an interpretation of the appropriate statute. R.C. 2745.01 sets forth a cause of

action for employer intentional torts.

       (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 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.

R.C. 2745.01. This statute was found constitutional by the Ohio Supreme Court

in Kaminski v. Metal & Wire Products Co., 125 Ohio St.3d 250, 2010-Ohio-1027,

927 N.E.2d 1066. In Kaminski, the Supreme Court held that under the common

law, the employee only had to show that injuries were substantially certain to

result from an employer’s reckless behavior in order to prove an employer

intentional tort. Id. at ¶32 (citing Fyffe v. Jeno’s Inc. (1991), 59 Ohio St.3d 115,

570 N.E.2d 1108). However, on April 7, 2005, a new statutory standard went into

effect. Id. at 33. The Supreme Court found that the new statute is constitutional,



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thus, the new test to be applied is the statutory definitions, not the common law

ones. Id. at ¶103. The Supreme Court then went on to find that since the injured

employee did not provide any evidence that her “employer acted with deliberate

intent to cause her to suffer an injury,” she did not meet the requirements of R.C.

2745.01 and could not recover for an employer intentional tort. Id. at ¶104.

       {¶9} A review of the facts in this case clearly indicate that the employer

acted with reckless disregard for the safety of its employees when it was aware of

the danger of the falling bales and took no action to correct the situation.

However, reckless disregard does not reach the statutory requirement of

“deliberate intent to cause an employee to suffer an injury, a disease, a condition

or death.” R.C. 2745.01. Without evidence that MPR intended for someone such

as Hubble to be injured, he does not meet the current statutory requirements to

recover for an employer’s intentional tort. The trial court did not err in granting

summary judgment and the assignment of error is overruled.

       {¶10} The judgment of the Court of Common Pleas of Paulding County is

affirmed.

                                                              Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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