                       NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  File Name: 05a0505n.06
                                    Filed: June 14, 2005

                                               No. 04-3634

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

LISA OLLICER HARRIS, et al.,

          Plaintiffs-Appellants,
                                                              ON APPEAL FROM THE
v.                                                            UNITED STATES DISTRICT
                                                              COURT FOR THE NORTHERN
SUNOCO, INC., et al.,                                         DISTRICT OF OHIO

          Defendants-Appellees.


                                                          /

Before:             MARTIN and ROGERS, Circuit Judges; McKINLEY, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. Lisa Ollicer Harris appeals the district court’s

grant of summary judgment to her employer, Sunoco, Inc., in this employer intentional-tort case.

For the following reasons, we AFFIRM.

                                                     I.

              Harris began working for the Sun Oil refinery, operated by Sunoco, near Toledo, Ohio, in

 April 1980. On January 19, 2000, at approximately 8:00 a.m., a fire erupted at one of the plants

 located at the refinery. Harris, who worked in the Transfer and Shipping Department, was driving

 on a road behind the plant when she noticed the fire. Harris notified the refinery dispatcher of the

 blaze. Although company policy allegedly required Harris to return to the Transfer and Shipping



          *
         The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western
District of Kentucky, sitting by designation.
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Harris v. Sunoco, Inc.
Page 2

Department in the event of a fire, Harris instead stopped her truck and helped another employee

attempting to attach a hose to a hydrant. She apparently did so without wearing proper protective

equipment, which is also required under the company’s fire procedures. While Harris was exiting

her vehicle, butane vapors, which had escaped from a sewer system, vented through a manhole

cover, causing a secondary explosion of fire. Harris was engulfed in fire and suffered second- and

third-degree burns, and has since been unable to work.

        On January 10, 2002, Harris and her children filed a complaint in Ohio state court alleging

that they were injured due to an “Ohio Workplace Injury Employer Tort.” The case was removed

to the Northern District of Ohio on February 8, 2002. On June 12, 2003, Sunoco filed a motion for

summary judgment. The district court granted the motion on April 8, 2004, finding that Harris

could not produce any evidence from which a jury could find, as required under the applicable Ohio

law, that Sunoco acted to require the employee to perform the dangerous task. Harris has appealed

that judgment to this Court, claiming that the district court erred in granting summary judgment to

Sunoco.

                                                 II.

        This Court reviews a grant of summary judgment de novo. Sherwin-Williams Co. v. United

States, 403 F.3d 793, 795 (6th Cir. 2005). Summary judgment is appropriate where “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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.” Fed. R. Civ. P. 56(c). In considering whether a genuine issue of
No. 04-3634
Harris v. Sunoco, Inc.
Page 3

material fact exists, we draw all reasonable inferences in favor of the nonmoving party. Mitchell

v. Vanderbilt Univ., 389 F.3d 177, 181 (6th Cir. 2004).

           The only issue presented in this appeal is whether the district court was correct to grant

summary judgment to Sunoco on Harris’s intentional-tort claim. Although the Ohio Workers’

Compensation Act, Ohio Rev. Code § 4123.01 et seq., generally provides the exclusive remedies

for employees injured at the workplace, an injured employee may, in some cases, also recover

under an intentional-tort theory of liability under Ohio law. The Ohio Supreme Court originally

set forth the intentional-tort test in Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489, 491

(Ohio 1988), and subsequently modified that test in Fyffe v. Jeno’s, Inc., 570 N.E.2d 1108, 1112

(Ohio 1991). Under the Fyffe standard, which applies to the accident in this case,1 Harris is

required to establish the following to present an intentional-tort claim:

       (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.




       1
         After the Ohio Supreme Court decided Fyffe, the Ohio General Assembly enacted Ohio Rev.
Code § 2745.01 (effective November 1, 1995), in an attempt to overrule it and other intentional-tort
cases and replace the standards articulated therein with a more heightened plaintiff burden.
However, in Johnson v. BP Chemicals, Inc., 707 N.E.2d 1107, 1114 (Ohio 1999), the Ohio Supreme
Court struck down section 2745.01 as “unconstitutional in its entirety.” This decision thus reinstated
the applicability of the standard articulated in Fyffe. While it appears that the Ohio General
Assembly has again enacted another version of section 2745.01 (effective April 7, 2005), that statute
was not effective at the time the injury occurred in this case. Thus, we conclude that the Fyffe
standard applies.
No. 04-3634
Harris v. Sunoco, Inc.
Page 4

Id. at 1109 (syllabus). “To establish an intentional tort of an employer, proof beyond that required

to prove negligence and beyond that to prove recklessness must be established.” Id. at 1110

(syllabus). It must be shown that “the employer kn[ew] that injuries to employees [were] certain or

substantially certain to result from the process, procedure or condition.” Id. (syllabus).

       The district court apparently considered Harris’s theory of recovery to be that the “dangerous

task” that led to her injury was being near the scene of the fire and helping to attach the hose to the

hydrant. The district court granted summary judgment to Sunoco on this theory because it found

that Harris could not establish the third prong of the Fyffe test—namely, that Sunoco required Harris

to perform the dangerous task. To the extent that Harris’s theory of recovery is based on her work

near the scene of the fire, we agree with the district court that Harris is unable to show that she was

forced or required to engage in that activity. First, Harris volunteered, rather then being instructed,

to go near the scene of the fire, while alternative (and less dangerous) routes and options were

available. See, e.g., Shelton v. U.S. Steel Corp., 710 F. Supp. 206, 211 (S.D. Ohio 1989) (holding

that a worker who volunteered to assist in the work that led to his injury could not demonstrate an

intentional tort on the part of his employer), aff’d, 892 F.2d 80 (6th Cir. 1989) (unpublished table

decision); Robinson v. Icarus Indus. Constructing & Painting Co., 762 N.E.2d 463, 468-69 (Ohio

Ct. App. 2001) (holding that an employee could not establish Fyffe’s third prong where he “placed

himself in danger by choice and not as a requirement of his employment”). Moreover, the record

is devoid of any evidence suggesting that Sunoco, through its actions and policies, implicitly

required Harris to engage in this task. Cf. Hannah v. Dayton Power & Light Co., 696 N.E.2d 1044,

1047 (Ohio 1998) (holding that in order to overcome summary judgment, an employee can satisfy
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Harris v. Sunoco, Inc.
Page 5

the third prong of Fyffe by presenting evidence that raises an inference that the employer implicitly

required the employee to engage in the dangerous task).

          Second, summary judgment is also appropriate under this theory because Harris violated

company policy by stopping and assisting at the scene in this case without wearing proper protective

equipment. According to company policy relating to fires, Harris was apparently required to wear

protective gear at a fire scene, to prevent precisely the sort of injuries that she sustained. This

violation of company policy was sufficient to grant summary judgment for Sunoco as to this theory

of recovery. See, e.g., Goodin v. Columbia Gas of Ohio, Inc., 750 N.E.2d 1122, 1136-40 (Ohio Ct.

App. 2000) (finding employer not liable for intentional tort where employee engaged in dangerous

act without using required safety equipment).

          To the extent that Harris claims that the “dangerous task” that led to her injury was merely

being exposed to a refinery-wide “zone-of-danger” because of dangerous procedures used at the

refinery, we reject this theory under the second prong of the Fyffe test. Under this requirement,

Harris must show “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.” Fyffe, 570 N.E.2d at 1109 (syllabus). In this context, Ohio tort law

requires more than “mere knowledge and appreciation of a risk.” Id. at 1110. As the Fyffe court

stated:

          To establish an intentional tort of an employer, proof beyond that required to prove
          negligence and beyond that to prove recklessness must be established. Where the
          employer acts despite his knowledge of some risk, his conduct may be negligence.
          As the probability increases that particular consequences may follow, then the
          employer’s conduct may be characterized as recklessness. As the probability that the
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Harris v. Sunoco, Inc.
Page 6

      consequences will follow further increases, and the employer knows that injuries to
      employees are certain or substantially certain to result from the process, procedure or
      condition and he still proceeds, he is treated by the law as if he had in fact desired to
      produce the result. However, the mere knowledge and appreciation of a
      risk—something short of substantial certainty—is not intent.


Id. (citations omitted). Ohio courts have consistently required plaintiffs to shoulder the “heavy

burden” of demonstrating knowledge by the employer that harm would be a substantial certainty.

Young v. Indus. Molded Plastics, Inc., 827 N.E.2d 852, 858 (Ohio Ct. App. 2005) (holding that

employee could not establish “substantial certainty” for employer intentional-tort claim where

employee was injured by a machine press).

       In the present case, we are unconvinced that Sunoco knew that harm to Harris was a

substantial certainty because of the allegedly dangerous procedures used at the refinery. Our review

of the record revealed insufficient evidence to support this intentional-tort claim. Furthermore,

absence of prior similar accidents strongly suggests a lack of employer knowledge in intentional-tort

claims under Ohio law, see, e.g., Van Fossen, 522 N.E.2d at 505, and Harris has pointed to no

evidence of any previous fires similar to the one that occurred here. For these reasons, we hold that

Fyffe’s second prong is not satisfied under Harris’s zone-of-danger theory.

                                                 III.

       Because we are convinced that Harris has presented no genuine issue of material fact as to

her intentional-tort claim, we AFFIRM the district court’s grant of summary judgment to Sunoco.
