                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0571n.06
                            Filed: August 9, 2006

                                           No. 05-3950

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


JAY A. EILERMAN and JENNIFER           )
M. EILERMAN,                           )
                                       )
                                                          ON APPEAL FROM THE
       Plaintiffs-Appellants,          )
                                                          UNITED STATES DISTRICT
                                       )
                                                          COURT FOR THE SOUTHERN
v.                                     )
                                                          DISTRICT OF OHIO
                                       )
CARGILL INC., d/b/a Cargill Oilseed    )
Processing,                            )
                                                                  OPINION
                                       )
       Defendant-Appellee.             )
_______________________________________)


Before: MOORE, CLAY, and GRIFFIN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants Jay A. Eilerman

(“Eilerman”) and Jennifer M. Eilerman (“Mrs. Eilerman”) (collectively “the plaintiffs”) sued

Defendant-Appellant Cargill Inc., d/b/a Cargill Oilseed Processing (“Cargill”), for injuries Eilerman

sustained while in Cargill’s employ. Eilerman alleged an intentional tort, and Mrs. Eilerman alleged

a loss of consortium, with both actions based on Ohio common law. The district court granted

summary judgment to Cargill on the intentional-tort claim because the plaintiffs produced

insufficient evidence of Cargill’s intent to harm Eilerman. The district court also granted summary

judgment to Cargill on the loss-of-consortium claim because the action was derivative of the

intentional-tort claim. Because both conclusions were correct, we AFFIRM the order granting

summary judgment to Cargill.
                                       I. BACKGROUND

       The pertinent facts of this case are simple and undisputed. Cargill, which operates an oilseed

processing plant in Sidney, Ohio, has a policy requiring employees to follow the company’s

“lockout/tagout” procedure. Lockout/tagout refers to a safety procedure whereby an employee may

perform maintenance on a piece of equipment only after completing several other steps: notify other

affected employees that the equipment will be shut down, turn off the equipment, deactivate the

devices (e.g., circuit breakers) that provide energy to the equipment, place a lock and a tag on

switches that could reactivate the equipment, release any energy that might be stored in the

equipment, and test the controls to ensure that no energy is flowing to the equipment. Joint

Appendix (“J.A.”) at 343-45 (Lockout/Tagout Pamphlet at 13-16); J.A. at 370-72 (Lockout Policy).

See generally 29 C.F.R. § 1910.147 (“The control of hazardous energy (lockout/tagout)”). Cargill

trains its employees on the lockout/tagout procedure (and other safety procedures) thirty, sixty, and

ninety days after hiring them, and it enforces the lockout/tagout policy by disciplining employees

who violate it.

       Beginning in June 2001, Eilerman began working as an elevator operator and meal load

operator at Cargill’s Sidney plant.      Eilerman testified that he received training about the

lockout/tagout procedure on at least four occasions before the accident: at an initial orientation on

or about June 20, 2001, at two subsequent orientations on or about August 10, 2001 and December

28, 2001, and at a plant-wide safety meeting at the end of January 2002. At the last meeting,

Eilerman received booklets detailing the lockout/tagout procedure, viewed a video about the

procedure, and saw a demonstration of the procedure. Eilerman was aware that the lockout/tagout

procedure was part of the plant’s safety rules and expected to be disciplined if he did not follow it.


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Eilerman had personally performed the lockout/tagout procedure every time he performed

maintenance on a piece of equipment, and he never had any difficulty with it. Nobody had ever

discouraged Eilerman from following the lockout/tagout procedure.

       On February 10-11, 2002, Eilerman worked an overnight shift with Richard Danzig.

Eilerman and Danzig were responsible for loading rail cars with meal, which they accomplished by

inputting commands into a computer located in a separate control room. Eilerman himself has no

recollection of the events of that night, so the only evidence in the record of the relevant events is

Danzig’s deposition testimony. At about 4:15 AM, Eilerman attempted to load a car with meal from

a particular tank, but the computer indicated that the tank’s gate did not open. “[Eilerman] said that

he knew how to open it manually. . . . So he went over to the cabinet there and got a pipe wrench

out and went down to the tank.” J.A. at 231 (Danzig Dep. at 9). Before leaving the control room

to go to the tank, neither Eilerman nor Danzig performed the lockout/tagout procedure. According

to Danzig, “I guess we just didn’t think to do it.” J.A. at 238 (Danzig Dep. at 16).

       Eilerman then “climbed up on top of the drag, which is what the meal falls into and takes it

to load it, and he put [the wrench] on the end of the motor and started turning it.” J.A. at 231

(Danzig Dep. at 9). In other words, when the tank’s gate appeared to be stuck shut, Eilerman

attempted to open the gate manually by using the wrench to rotate the shaft of the motor that

controlled the gate. The motor normally would have been made inaccessible by a barrier guard

covering it, but it had been removed some time in the past. Danzig testified as to what happened

next: “I told [Eilerman] it’s coming open, and the next thing I know, I just heard a big loud noise,

bang, you know. . . . Then the next thing I know, he is down on the floor.” J.A. at 232 (Danzig Dep.

at 10). Apparently, the motor that Eilerman was manipulating with the wrench unexpectedly started


                                                  3
operating, causing the wrench to spin around and strike Eilerman in the head. According to the

plaintiffs’ own expert, if the lockout/tagout procedure had been followed, the accident would not

have happened, as there would have been no power flowing to the motor. J.A. at 414, 415 (Maul

Dep. at 89-90, 94-95).

       Invoking jurisdiction based on diversity of citizenship,1 the plaintiffs brought two claims

against Cargill under Ohio common law: Eilerman alleged an intentional tort, while Mrs. Eilerman

alleged a loss of consortium. Cargill moved for summary judgment, arguing that the plaintiffs

offered insufficient evidence of Cargill’s intent to harm Eilerman. The district court referred the

motion to a magistrate judge, who agreed that the plaintiffs could not prove intent, principally

because of Eilerman’s failure to follow the lockout/tagout procedure. The magistrate judge thus

recommended granting summary judgment on the intentional-tort claim; he also recommended

granting summary judgment on the loss-of-consortium claim because it was dependent on the

intentional-tort claim. Overruling the plaintiffs’ subsequent objections, the district court adopted

the magistrate judge’s recommendations and granted summary judgment to Cargill on both claims.

The plaintiffs now appeal.

                                          II. ANALYSIS

A. Standard of Review

       We review de novo a district court’s grant of summary judgment. McQueen v. Beecher

Cmty. Sch., 433 F.3d 460, 463 (6th Cir. 2006). Summary judgment is “rendered . . . if the pleadings,

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


       1
       It is undisputed that (1) the plaintiffs are citizens of Ohio, (2) Cargill is a citizen of both
Delaware and Minnesota, and (3) the amount-in-controversy requirement has been satisfied. See
28 U.S.C. § 1332.

                                                  4
show that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” FED. R. CIV. P. 56(c).2 A genuine issue of material fact exists if a

reasonable jury could return a verdict for the nonmovant. Leary v. Daeschner, 349 F.3d 888, 897

(6th Cir. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In making this

determination, we must view the facts and the inferences drawn therefrom in the light most favorable

to the nonmovant. Bell v. United States, 355 F.3d 387, 392 (6th Cir. 2004).

B. Intentional Tort

       A federal court exercising diversity jurisdiction must apply the substantive law of the forum

state. E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir. 2003) (citing Erie R.R.

Co. v. Tompkins, 304 U.S. 64, 78 (1938)), cert. denied, 541 U.S. 1027 (2004). Ohio law generally

makes available to employees injured in the course of employment only those remedies provided

by the state’s Workers’ Compensation Act. OHIO CONST. art. II, § 35; OHIO REV. CODE ANN.

§§ 4123.74, 4123.741. These exclusivity provisions do not, however, bar an employee from

pursuing a common-law intentional-tort action against his employer. Blankenship v. Cincinnati

Milacron Chems., Inc., 433 N.E.2d 572, 576 (Ohio), cert. denied, 459 U.S. 857 (1982).

       The Ohio Supreme Court’s decision in Fyffe v. Jeno’s, Inc., 570 N.E.2d 1108 (Ohio 1991),

is “[t]he definitive Ohio case on the requirements for establishing an intentional tort claim against

an employer.” Jandro v. Ohio Edison Co., 167 F.3d 309, 313 (6th Cir. 1999).3 Fyffe sets out the


       2
         The summary-judgment standard is a procedural rule rather than an issue of substantive law,
so the federal standard of Rule 56 governs diversity cases. Gafford v. Gen. Elec. Co., 997 F.2d 150,
165-66 (6th Cir. 1993).
       3
       We recently explained the continued vitality of Fyffe:
       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

                                                 5
following requirements “to establish ‘intent’ for the purpose of proving the existence of an

intentional tort committed by an employer against his employee”:

       (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.

570 N.E.2d at 1109 syllabus para. 1, 1112 (paragraph breaks added).4

       The plaintiffs believe that this case is about a single fact: Cargill’s undisputed removal of

the safety guard covering the motor that Eilerman was attempting to repair when he was injured.

They cite a number of decisions resolved in favor of the employee on the basis of the employer’s

removal of or failure to install a safety guard. E.g., Fyffe, 570 N.E.2d at 1112-13; Russell v. Interim



        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 (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.
Harris v. Sunoco, Inc., 137 F. App’x 785, 786 n.1 (6th Cir. 2005) (unpublished opinion) (parallel
citation omitted); accord Smith v. Gen. Motors Corp., 172 F. App’x 661, 665 n.2 (6th Cir. 2006),
petition for cert. filed, 74 U.S.L.W. 3704 (U.S. June 6, 2006) (No. 05-1566).
       4
         As Fyffe itself acknowledges, these three prongs only establish the intent element of the
intentional tort. As is true for all intentional torts, an employee must also prove causation. Raines
v. Rubbermaid, Inc., 678 N.E.2d 988, 991 (Ohio Ct. App. 1996) (citing Avon Lake City Sch. Dist.
v. Ohio Dep’t of Taxation, 563 N.E.2d 754, 756 (Ohio 1989)); Posen v. Sitecon, L.L.C., No. 86239,
2006 WL 1774131, at *4 (Ohio Ct. App. June 22, 2006) (unpublished opinion) (collecting cases).
In other words, “the plaintiff must prove a nexus between the act or omission of the employer and
her injury.” Crum v. Lenkei Bros. Cabinet Co., No. 94-CA-6, 1994 WL 528035, at *1 (Ohio Ct.
App. Sept. 19, 1994) (unpublished opinion). Because we conclude that Eilerman has failed to
establish Cargill’s intent, we need not address the issue of causation.

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Pers., Inc., 733 N.E.2d 1186, 1190-91 (Ohio Ct. App. 1999); Walton v. Springwood Prods., Inc., 663

N.E.2d 1365, 1368-69 (Ohio Ct. App. 1995); Watson v. Aluminum Extruded Shapes, 575 N.E.2d

235, 237-38 (Ohio Ct. App. 1990). According to the plaintiffs, summary judgment for Cargill was

improper under this line of authority, because if the safety guard had been in place, the motor would

have been inaccessible and Eilerman would not have been injured.

       By characterizing this case as solely about Cargill’s removal of the safety guard, the

plaintiffs tell only half the story. They downplay another crucial fact: Eilerman knew of, but failed

to follow, Cargill’s well-established lockout/tagout procedure — a procedure that, if followed,

would have prevented Eilerman’s injury. The significance of an employee’s knowing failure to

follow his employer’s safety procedures was suggested by the Ohio Supreme Court in Sanek v.

Duracote Corp., 539 N.E.2d 1114 (Ohio 1989). There, the employee’s arm was caught in a machine

when he attempted to repair the machine by hitting it with his gloved hand. Id. at 1115. Apparently

on the basis of the fact that “[u]sually, someone else corrected the problem by turning off the

[machine’s] power source,” id., the court concluded that the employer “could hardly be expected to

have anticipated the actions of appellee which led to his injury,” id. at 1117. Following Sanek’s

lead, numerous Ohio lower-court decisions have held that if an employee is injured as a result of his

knowing failure to follow a safety procedure that would have averted the injury, the employer cannot

be said to have the requisite intent under Fyffe. E.g., Goodin v. Columbia Gas of Ohio, Inc., 750

N.E.2d 1122, 1135-36, 1139-40 (Ohio Ct. App. 2000); Youngbird v. Whirlpool Corp., 651 N.E.2d

1314, 1318-19 (Ohio Ct. App. 1994); Wetmore v. Am. Guard Co., No. 2002-L-058, 2003 WL

1632970, at *3 (Ohio Ct. App. Mar. 28, 2003) (unpublished opinion); Tipton v. Bernie’s Elec. Sales

& Servs., No. WM-02-009, 2003 WL 1700825, at *6 (Ohio Ct. App. Mar. 31, 2003) (unpublished


                                                 7
opinion); Parker v. JJJS, Inc., No. 98-CA-63, 1999 WL 4073, at *2 (Ohio Ct. App. Dec. 29, 1998)

(unpublished opinion); Neal v. McGill Septic Tank Co., No. 98-T-0022, 1998 WL 964505, at *2-*4

(Ohio Ct. App. Dec. 4, 1998) (unpublished opinion); Breininger v. Harborside of Ohio Ltd. P’ship,

No. WM-97-011, 1998 WL 80457, at *3 (Ohio Ct. App. Feb. 20, 1998) (unpublished opinion);

Anderson v. Adams Shell, No. 65619, 1994 WL 264310, at *4 (Ohio Ct. App. June 16, 1994)

(unpublished opinion); Hutton v. Corcon Indus. Painting, Inc., No. 92 C.A. 41, 1993 WL 102909,

at *3-*4 (Ohio Ct. App. Mar. 29, 1993) (unpublished opinion).

       Of particular relevance to the instant case, the Sanek principle has been applied to excuse the

liability of employers even when they remove safety guards:

       [D]irect evidence of the employer’s removal of the safety guard on equipment that
       the employee was assigned to operate automatically triggers inferences which will
       satisfy [the three-prong intent] test for purposes of [summary judgment]. The
       exception is when the employee, despite the missing safety guard, knowingly acts
       in contradiction of the employer’s safety protocol. In that instance, the Supreme
       Court has concluded that the employer cannot be expected to anticipate the
       employee’s misconduct under the second [prong of the intent] test. See [Sanek].

Watson, 575 N.E.2d at 237 (footnote omitted). Accordingly, there are a number of cases in which

the Ohio courts have rejected intentional-tort claims premised on missing safety guards because the

employers implemented (and the employees knowingly failed to follow) safety procedures that

would have prevented the injuries. Robinson v. Icarus Indus. Constr. & Painting Co., 762 N.E.2d

463, 466-67 (Ohio Ct. App. 2001); Davis v. AK Steel, No. CA2005-07-183, 2006 WL 318661, at *2

(Ohio Ct. App. Feb. 13, 2006) (unpublished opinion); Ortiz v. Elyria Foundry Co., No.

92CA005302, 1992 WL 308556, at *3 (Ohio Ct. App. Oct. 21, 1992) (unpublished opinion); Bader

v. Therm-O-Disc, Inc., No. CA-2732, 1990 WL 139828, at *5-*6 (Ohio Ct. App. Sept. 5, 1990)

(unpublished opinion).    Here, it is undisputed that Eilerman had been trained in Cargill’s


                                                 8
lockout/tagout safety procedure, that Eilerman failed to follow the procedure before attempting the

repair that led to his injury, and that adherence to the procedure would have averted the injury.

Under Ohio law, Eilerman cannot establish Cargill’s intent in these circumstances.

       There is the matter of specifying which intent prong Eilerman cannot establish. Although

some of the cases cited above rely on the employee’s knowing failure to follow safety procedures

to conclude that the employee failed to establish the first or third Fyffe prongs, e.g., Goodin, 750

N.E.2d at 1139-40; Robinson, 762 N.E.2d at 466-67, most decisions apply the Sanek principle to the

second prong. We follow these decisions in concluding that Eilerman has failed to establish

“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 para. 1, 1112. Because the three Fyffe prongs are

conjunctive, this conclusion makes it unnecessary for us to reach the first and third prongs, and we

express no opinion about them.

C. Loss of Consortium

       The plaintiffs do not explicitly appeal the grant of summary judgment on Mrs. Eilerman’s

loss-of-consortium claim. However, given that judgment was granted on the loss-of-consortium

claim solely because judgment was granted on the intentional-tort claim, the plaintiffs can be

understood to be appealing the former by appealing the latter. In any event, the district court’s

determination was correct. Ohio law “recognize[s] that a claim for loss of consortium is derivative

in that the claim is dependent upon the defendant’s having committed a legally cognizable tort upon

the spouse who suffers bodily injury.” Bowen v. Kil-Kare, Inc., 585 N.E.2d 384, 392 (Ohio 1992).

Because Eilerman’s intentional-tort claim fails for the reasons discussed above, Mrs. Eilerman’s


                                                 9
loss-of-consortium claim must also fail. See Johnson v. Ohio Dep’t of Rehab. & Corr., No. 02AP-

1428, 2003 WL 22006860, at *4 (Ohio Ct. App. Aug. 26, 2003) (unpublished opinion); Jackson v.

Reynolds & Reynolds Co., No. 14635, 1995 WL 245170, at *1 (Ohio Ct. App. Apr. 28, 1995)

(unpublished opinion).

                                    III. CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s order granting summary

judgment to Cargill.




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