         [Cite as Logossou v. Advancepierre Foods, Inc., 2019-Ohio-363.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



KOSSI LOGOSSOU,                                   :         APPEAL NO. C-170672
                                                            TRIAL NO. A-1703513
        Plaintiff-Appellant,                      :

  vs.                                             :
                                                                 O P I N I O N.
ADVANCEPIERRE FOODS, INC.,                        :


ASCENT SAFETY SERVICES, LLC,                      :

  and                                             :

MATRIX        CLAIMS       MANAGEMENT, :
INC.,

    Defendants-Appellees.                         :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 6, 2019


Marc D. Mezibov and Brian J. Butler, for Plaintiff-Appellant,

Frost Brown Todd LLC, James D. Schoeny and Jeffrey N. Lindemann, for
Defendant-Appellee AdvancePierre Foods, Inc.,

Wood & Lamping, LLP and Andre Kaake, for Defendants-Appellees Ascent
Safety Services, LLC, and Matrix Claims Management, Inc.
                  OHIO FIRST DISTRICT COURT OF APPEALS



D ETERS , Judge.

       {¶1}    Plaintiff-appellant Kossi Logossou appeals the trial court’s

judgment, dismissing pursuant to Civ.R. 12(B)(6), his employer-intentional-tort

claim against defendant-appellee AdvancePierre Foods, Inc., (“AdvancePierre”)

and his negligent-inspection claim against defendants-appellees Ascent Safety

Services, LLC, (“Ascent”) and Matrix Claims Management, Inc. (“Matrix”).

       {¶2}    After reviewing the record and the law, we conclude that Logossou

pleaded sufficient facts to state a negligent-inspection claim against Ascent and

Matrix and a claim for an intentional tort against AdvancePierre. We, therefore,

reverse the trial court’s judgment and remand the matter to the trial court for

further proceedings consistent with this opinion and the law.

                                    Background

       {¶3}    On August 26, 2015, Logossou, an employee at AdvancePierre,

was using his hands to remove meat from the blades of a mixing machine when a

co-worker activated the power to the machine causing severe injury to his hand.

Logossou filed a complaint against AdvancePierre and Ascent. He asserted

negligence and employer-intentional-tort claims against AdvancePierre and a

negligent-inspection claim against Ascent. AdvancePierre filed a Civ.R. 12(B)(6)

motion to dismiss the claims against it. Logossou then filed an amended

complaint.    He restated his negligence and employer-intentional-tort claims

against AdvancePierre and his negligent-inspection claim against Ascent, and he

added Matrix as an additional defendant related to his negligent-inspection

claim against Ascent. All three defendants moved pursuant to Civ.R. 12(B)(6) to

dismiss the claims against them.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    The trial court dismissed Logossou’s negligence and intentional-

tort claims against AdvancePierre. It dismissed his negligence claim on the basis

that R.C. 4123.74, Ohio’s workers’ compensation statute, provided him with the

exclusive remedy for his alleged injuries. It additionally found that Logossou had

failed to assert sufficient facts to meet the heightened pleading requirements to

set forth an intentional-tort claim under R.C. 2745.01 and Mitchell v. Lawson

Milk Co., 40 Ohio St.3d 190, 532 N.E.2d 753 (1998), and its progeny. The trial

court also dismissed Logossou’s negligent-inspection claim against Ascent and

Matrix for failure to state a claim based on his failure to allege facts establishing

that they owed a duty to Loggosou.

                                Assignments of Error

       {¶5}    In two assignments of error, Logossou contends the trial court

erred by dismissing his amended complaint for failing to state a claim for

negligent inspection against Ascent and Matrix and a claim for an intentional

tort against AdvancePierre.

                                 Standard of Review

       {¶6}    We review de novo a decision granting a motion to dismiss under

Civ.R. 12(B)(6). Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-

4362, 814 N.E.2d 44, ¶ 5. In conducting this review, we accept as true all factual

allegations in the complaint.     Id.   “[T]hose allegations and any reasonable

inferences drawn from them must be construed in the nonmoving party’s favor.”

Ohio Bur. of Workers’ Comp. v. McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432,

956 N.E.2d 814, ¶ 12. To grant the motion, “it must appear beyond doubt that

the plaintiff can prove no set of facts in support of his claim that would entitle




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                 OHIO FIRST DISTRICT COURT OF APPEALS



the plaintiff to the relief sought.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d

143, 144, 573 N.E.2d 1063 (1991).

       {¶7}   The Ohio Supreme Court has established a heightened pleading

standard for employer-intentional-tort claims. Byrd v. Faber, 57 Ohio St.3d 56,

60, 565 N.E.2d 584 (1991). To survive a Civ.R. 12(B)(6) motion to dismiss, a

plaintiff bringing an intentional-tort claim against an employer must allege facts

supporting the claim with particularity. Id. at 60-61; Mitchell, 40 Ohio St.3d at

193, 532 N.E.2d 753.

                           Negligent-Inspection Claim

       {¶8}   In his first assignment of error, Logossou argues the trial court

erred by dismissing his amended complaint when he had pleaded sufficient facts

against Ascent and Matrix to state a claim for negligent inspection.

       {¶9}   We initially note that in their motion to dismiss and their

appellate brief Ascent and Matrix argue that the heightened fact-pleading

standard in Mitchell and State ex rel. Hickman v. Capots, 45 Ohio St.3d 324,

544 N.E.2d 639 (1989), applies to Logossou’s negligent-inspection claim. But a

negligent-inspection claim does not fall within this exception to the general rule

of notice pleading, so the heightened fact-pleading premise underlying Ascent

and Matrix’s motion is incorrect. See State ex rel. Jones v. City of Athens, 4th

Dist. Athens No. 16CA15, 2017-Ohio-7370, ¶ 50. Consequently, we analyze his

negligent-inspection claim under the notice-pleading standard. Compare Bugg

v. Am. Std. Inc., 8th Dist. Cuyahoga No. 84829, 2005-Ohio-2613 (applying the

heightened standard of review set forth in Mitchell and Capots to dismiss a

negligent-inspection claim).




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} In his amended complaint, Logossou alleged that AdvancePierre

was responsible for equipment operation, safety, and maintenance. Ascent and

Matrix had contracted with AdvancePierre to inspect the machines in its

Cincinnati facility, including the mixing machine. One month prior to

Logossou’s accident, Ascent and Matrix had inspected the guarding on the

mixer and had advised AdvancePierre that it complied with relevant safety

regulations.

       {¶11} Logossou further alleged that Ascent and Matrix owed him a duty

of care because it was foreseeable that he would be injured if Ascent and Matrix

did not properly inspect the mixer and ensure it complied with all applicable

safety standards and regulations, including the appropriate guarding. Ascent

and Matrix failed to ensure the mixer was safe and that it complied with all

safety standards and regulations, including the appropriate guarding, and as a

direct and proximate result, he was severely injured, requiring amputation of

three fingers.

       {¶12} Logossou’s negligent-inspection claim against Ascent and Matrix

is premised on 2 Restatement of the Law 2d, Torts, Section 324A (1965),

“Liability to Third Person for Negligent Performance of Undertaking,” which

provides, in pertinent part:

       One who undertakes gratuitously or for consideration, to render

       services to another which he should recognize as necessary for the

       protection of a third person or his things, is subject to liability to

       the third person for physical harm resulting from his failure to

       exercise reasonable care to protect his undertaking, if * * * (b)




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       he has undertaken to perform a duty owed by the other to the

       third person * * *.

       {¶13} Here, the facts as pleaded in his complaint and the reasonable

inferences drawn therefrom are sufficient to state a claim for relief under 2

Restatement, Section 324(A)(b). Stevens v. Jeffrey Allen Corp., 131 Ohio App.3d

298, 304, 722 N.E.2d 533 (1st Dist.1997); Root v. Stahl Scott Fetzer Co., 2017-

Ohio-8398, 88 N.E.3d 980, ¶ 35 (8th Dist.). Therefore, we sustain the first

assignment of error.

                               Intentional-Tort Claim

       {¶14} In his second assignment of error, Logossou contends the trial

court erred by dismissing for failure to state a claim the intentional-tort claim in

his amended complaint.

       {¶15} In order to state a viable intentional-tort claim, a plaintiff must

allege with particularity that the employer committed the tortious act with a

deliberate intent to injure or a belief that injury was substantially certain to

occur. R.C. 2745.01(A); Mitchell, 40 Ohio St.3d at 193, 532 N.E.2d 753. The

Ohio Supreme Court has explained that because R.C. 2745.01(B) equates

substantially certain with deliberate intent to injure, the two options of proof

become one and the same. See Cincinnati Ins. Co. v. DTJ Ents., Inc. (In re

Hoyle), 143 Ohio St.3d 197, 2015-Ohio-843, 36 N.E.3d 122, ¶ 10. Thus, R.C.

2745.01(A) and (B) permit recovery for employer intentional torts only when an

employer acts with specific or deliberate intent to injure. Id.

       {¶16} And where a plaintiff sufficiently alleges that the employer

deliberately removed an equipment safety guard under R.C. 2745.01(C), there is

a rebuttable presumption of employer intent. Id. at ¶ 12. “ ‘[D]eliberate



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                   OHIO FIRST DISTRICT COURT OF APPEALS



removal’ of an equipment safety guard occurs when an employer makes a

deliberate decision to lift, push aside, take off, or otherwise eliminate that guard”

from the machine. Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-

5317, 981 N.E.2d 795, syllabus.

       {¶17} Logossou contends that the allegations in his amended complaint

are sufficient under the heightened pleading standard articulated in Mitchell

and its progeny to set forth an intentional tort. We agree.

       {¶18} Logossou has pleaded sufficient facts to set forth a claim for an

intentional tort under R.C. 2745.01(C). In his amended complaint, Logossou

alleged, in pertinent part:

               7. AdvancePierre had actual knowledge that point of

       operation    guards     were   required   by   federal   regulations.

       Specifically, 29 U.S.C. § 1910.212(a)(1) provides: “One or more

       methods of machine guarding shall be provided to protect the

       operator and other employees in the machine area from hazards

       such as those created by point of operation, ingoing nip points,

       rotating parts, flying chips and sparks. Examples of guarding

       methods are barrier guards, two-hand tripping devices, electronic

       safety devices, etc.”

               8. AdvancePierre had actual knowledge that barrier

       guards preventing body parts from coming into contact with the

       rotating blades and safety sensors preventing operation of the

       machine if loading buckets are not properly in place would

       prevent accidental entry into the point of operation.




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          OHIO FIRST DISTRICT COURT OF APPEALS



       9. Based on knowledge of industry standards and

applicable regulations, AdvancePierre had actual knowledge that

the line 1 mixer was not equipped with the guards described

above, and that operating the mixer without such guards was

substantially certain to result in injury and/or amputation to the

operator of the mixer.

       10.   Notwithstanding         this   knowledge,     Defendant

AdvancePierre knowingly and deliberately removed the guards

described above from the mixer and failed to ensure that the

mixer was equipped with the guards above as required by law.

       11. Despite knowledge that operators of the mixer were

substantially certain to be injured if required to operate the mixer

from    which    guards    had       been   deliberately   removed,

AdvancePierre required Plaintiff to operate the mixer and

intentionally exposed him to the known hazardous condition.

Specifically, AdvancePierre required Plaintiff to manually remove

the last of the product from the mixer, as he was trained and

instructed. To do so, he placed his hand into the operating area

of the machine where the blades were located.                Because

AdvancePierre knowingly removed the guards described above,

Plaintiff was able to reach into the area of the machine in which

the blades rotated while the machine was energized and capable

of operation. While Plaintiff was doing so, and without Plaintiff’s

knowledge, a coworker turned the machine on, causing severe

injury to Plaintiff’s hand, including the amputation of three



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                  OHIO FIRST DISTRICT COURT OF APPEALS



       fingers. Had the machine contained the appropriate guarding, as

       required by law, Plaintiff would have been protected from the

       hazard that resulted in the amputation.

       {¶19} Because Logossou’s complaint states a factual basis for the

assertion that an equipment safety guard was deliberately removed from the

mixing machine by AdvancePierre, it is sufficient to satisfy the heightened

pleading standard under Mitchell. See Mizway v. Clark, 183 F.Supp.2d 1003,

1004 (N.D.Ohio 2002) (holding that facts showing the “deliberate removal of a

safety device intended to avoid injury” satisfied the heightened pleading standard

for an employer-intentional-tort claim); Compare Downey v. Reich Installation

Servs., Inc., N.D.Ohio No. 3:09CV263, 2009 WL 2922262, *2 (Sept. 8, 2009)

(holding that the employee failed to state a claim for an intentional tort where he

“failed to allege any facts that the employer had actually violated the regulations

or removed a safety device”).

       {¶20} As a result, the trial court erred by granting AdvancePierre’s

motion to dismiss the claim pursuant to Civ.R. 12(B)(6). We, therefore, sustain

the second assignment of error.

                                      Conclusion

       {¶21} Having sustained both assignments of error, we reverse the

judgment of the trial court and remand the matter for further proceedings in

accordance with this opinion and the law.

                                       Judgment reversed and cause remanded.

MOCK, P.J., and ZAYAS, J., concur.


Please note:
       The court has recorded its own entry this date.


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