               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0177n.06
                           Filed: March 8, 2006

                                         No. 05-3498

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


LINDA SMITH;                                           )
                                                       )
       Plaintiff-Appellant,                            )
                                                       )
GREGORY SMITH,                                         )
                                                       )       ON APPEAL FROM THE
       Plaintiff,                                      )       UNITED STATES DISTRICT
                                                       )       COURT FOR THE SOUTHERN
v.                                                     )       DISTRICT OF OHIO
                                                       )
GENERAL MOTORS CORPORATION GENERAL                     )               MEMORANDUM
MOTORS GLOBAL HEADQUARTERS and                         )                   OPINION
POWERTRAIN DIVISION MORAINE ENGINE                     )
PLANT;                                                 )
                                                       )
       Defendants-Appellees.                           )
                                                       )
                                                       )
CHERYL McCURDY as PLANT MANAGER                        )
GENERAL MOTORS CORPORATION
POWERTRAIN DIVISION MORAINE ENGINE
PLANT,

       Defendant.




BEFORE:       MOORE and McKEAGUE, Circuit Judges; POLSTER, District Judge.*




       *
         The Honorable Dan Aaron Polster, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 05-3498
Smith v. General Motors Corp. et al

McKEAGUE, Circuit Judge. Plaintiff-appellant Linda Smith appeals the district court’s grant of

summary judgment in favor of defendant-appellee, General Motors Corporation. Smith filed this

action against General Motors to recover for injuries sustained during her employment at the

Moraine Engine Plant in Moraine, Ohio. Smith asserts that she is entitled to recovery under the

intentional tort exception to the Ohio Workers’ Compensation Act. The district court granted

defendant’s motion for summary judgment, finding that Smith had not presented sufficient evidence

to raise a genuine issue of material fact concerning whether General Motors knew with “substantial

certainty” that the injury she sustained was likely to occur. For the following reasons, we affirm the

district court’s decision.

                                       I. BACKGROUND

        A. Facts

        This case arises from injuries Linda Smith (“Smith”) incurred on February 9, 2000, while

working for General Motors Corporation Powertrain Division (“GM”) at the Moraine Engine Plant

located in Moraine, Ohio. The facts are not in dispute. Smith began her employment with GM in

1993, initially working on an assembly line. After six years, Smith began working as a job-setter.

She performed this job for one and one-half years prior to her injury. For the two months preceding

her accident, Smith worked on Operation 40, an automated assembly line composed of 14 stations

of machines. Some of these machines were multi-spindle drilling machines, designed to drill holes

in the top of engine heads.

        As a job-setter, Smith was expected to perform maintenance on Operation 40. On the day

of her injury, Smith was wearing Tyvek coveralls and had her hair pulled back in a ponytail, as was

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her habit. GM provided the coveralls for workers, to help keep their personal clothing clean. GM

did not require the employees to wear them. The coveralls have long, loose fitting sleeves and come

in three sizes; small, medium, and large.

       On February 9, 2000, a bushing broke on one of the spindle drills in Operation 40. Because

this was not an unusual occurrence, job-setters had a normal procedure to follow in order to repair

the bushing. Initially, the job-setter would attempt to repair the broken bushing herself. If that was

unsuccessful, the job-setter would call a Skilled Trades employee for assistance. Smith was able

to locate the broken bushing, but realized that she would be unable to repair it herself. She

summoned Jason Caldwell, a Skilled Trades employee for assistance.

       There are two methods used to shut off Operation 40. The first is to use the lockout/tagout

procedure, which completely shuts down the Operation. The second is to turn the shutoff switch,

which would not shut off all the power to the machine, allowing the spindle drills to continue

spinning. Operation 40 was surrounded by a six-foot high metal barrier with an entry gate. An

employee could walk through this entry without having the machines turned off.

       Prior to performing the lockout/tagout procedure, both Smith and Caldwell went inside the

gate so that Smith could show him the broken bushing. However, before repairing the bushing, they

shut off Operation 40 by using the lockout/tagout procedure. After the bushing was repaired, Smith

restarted Operation 40. Although the spindle drills began to turn normally, the engine heads did not

move down the line to be drilled, indicating that something was still not right with the Operation.

With Caldwell looking on, Smith went inside the gate for a closer look at station 14, because the

view of this area was obliterated by the barrier. The spindles continued to spin, because it was

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necessary for the machine to be on in order to determine the location of the jam. Once inside the

gate, Smith used her flashlight to illuminate the machine in an effort to locate the problem. Not

seeing the problem, she turned to walk away. However, a spindle drill which continued to turn

became entangled with the sleeve of her Tyvek coveralls. Thereafter, her ponytail also became

entangled in a turning spindle drill. As a result, Smith suffered severe injuries, including having her

scalp removed from her head.

       B. Procedural Background

       This action was originally filed in Montgomery Court of Common Pleas in December of

2001. The case was removed by the defendant to Federal Court, pursuant to 28 U.S.C. § 1332, in

January of 2002. The defendant filed a motion for summary judgment on May 28, 2003.

Subsequently, the plaintiff was given oral notice that the court was planning on granting defendant’s

motion for summary judgment. Based on this information, the plaintiff filed a motion for

reconsideration on September 25, 2003. However, the district court did not grant defendant’s

motion for summary judgment until March 22, 2004. The plaintiff then filed a renewed motion for

reconsideration on April 26, 2004. The district court issued a decision overruling plaintiff’s renewed

motion for reconsideration on March 24, 2005. This appeal followed.

                                       II. JURISDICTION

       The district court exercised subject matter jurisdiction under 28 U.S.C. § 1332, because the

proper parties are citizens of different states and the amount in controversy exceeds $75,000.1 This


       1
      The district court found that plaintiffs fraudulently joined Cheryl McCurdy as Plant
Manager in order to spoil diversity. McCurdy was not a party to the original complaint. Plaintiffs

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Smith v. General Motors Corp. et al

court has jurisdiction pursuant to 28 U.S.C. § 1291, because this is an appeal of the district court’s

March 24, 2005, order denying plaintiff’s motion for reconsideration, which order left unchanged

the final order granting defendant’s motion for summary judgment entered on March 22, 2004.

        This court reviews de-novo a district court’s grant of summary judgment. Johnson v.

Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment is proper “if 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

a judgment as a matter of law.” Fed. R. Civ. P. 56(c); accord Johnson, 398 F.3d at 873. When

deciding a motion for summary judgment, the court must view the evidence and draw all reasonable

inferences in favor of the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Any direct evidence offered by the plaintiff in response to a summary

judgment motion must be accepted as true. Muhammad v. Close, 379 F.3d 413, 416 (6th Cir. 2004).

The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise

properly supported motion for summary judgment; the requirement is that there be no genuine issue

of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in

original).

                                         III. ANALYSIS

        A. Issues on Appeal




have not appealed this finding, and McCurdy is not a party to this appeal. See Smith v. GM, 02-CV-
00029-WHR at 2, n.2.

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Smith v. General Motors Corp. et al

       The parties advance three issues on appeal. First, Smith avers that the district court erred

in finding that there were no issues of material fact as to whether GM knew with “substantial

certainty” that Smith’s injuries were likely to occur, as is required for a finding of employer

intentional tort. Second, Smith also claims that the court erred in not construing the evidence

presented in the light most favorable to her, the non-movant, as required by Fed. R. Civ. P. 56.

Third, GM advances an alternate theory of affirmance; stating that GM never required plaintiff to

perform any task with the knowledge that injury was substantially certain to occur.

       B. Ohio Law Governing Employer Intentional Tort

       A federal court exercising jurisdiction pursuant to 28 U.S.C. § 1332 must apply the

substantive law of the forum state. See U.S. v. Jandro, 167 F.3d 309, 313 (6th Cir. 1999). In Ohio,

employees injured in the course of their employment are usually limited to the remedial measures

afforded by the Ohio Workers’s Compensation Act. See O. Const. II § 35, see also OHIO REV. CODE

ANN. § 4123 et seq. There are certain instances when an employee may seek redress for an injury

outside of the Act. An injury caused by the intentional tort of the employer is such an event. See

Blankenship v. Cincinnati Milacron Chemicals, Inc., 433 N.E.2d 572, 576 (Ohio 1982) (explaining

that an employee is not precluded from pursuing common law remedies for an intentional tort

committed by his employer). In Fyffe v. Jeno’s, 570 N.E.2d 1108, 1112 (Ohio 1991), the Supreme

Court of Ohio set out the test used to determine whether an employer has committed an intentional

tort. In such a case, the plaintiff must prove:

       1) knowledge by the employer of the existence of a dangerous process, procedure,
       instrumentality or condition within its business operation;



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        2) knowledge by the employer that if the employee is subjected by his employment
        to such a 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.
Id. at 1112.2 According to Fyffe, a plaintiff must offer proof beyond that required for negligence,

or recklessness. Id. In the absence of direct evidence of intent, a plaintiff may prove such a claim

by inferred intent. Id.

        Ohio law creates a harsh test for establishing employer liability for an intentional tort. See

Goodwin v. Karlshamns U.S.A., Inc., 619 N.E.2d 508, 512 (Ohio App. 1993) (stating “a reckless tort

is not sufficient to allow recovery against one’s employer”). In Jandro v. Ohio Edison Co., the Sixth

Circuit stated “it must be shown that the employer ‘(1) specifically desired to injure the employee;

or (2) knew that injury to an employee was certain or substantially certain to result from the

employers act, and despite this knowledge, still proceeded.’” 167 F.3d 309, 313 (6th Cir. 1999)

(quoting Mitchell v. Lawson Milk Co., 532 N.E.2d 753, 756 (Ohio 1988)). It is not enough that harm

was likely to occur, or that there was a high risk that it would occur. Jandro, 167 F.3d at 313. Acts

of an employer that have a high risk of harm are most often reckless acts, but could under certain


        2
         The Ohio legislature passed R.C. 2745.01, effective October 20, 1993. This legislation was
intended to revise the requisite elements and standards of an employer intentional tort. However,
the statute was found to be unconstitutional, because it imposed excessive standards and a
heightened burden of proof for plaintiffs seeking a remedy for an employer intentional tort. See
Johnson v. B.P. Chemicals, Inc., 707 N.E.2d 1107 (Ohio 1999) ("Because R.C. 2745.01 imposes
excessive standards (deliberate and intentional act), with a heightened burden of proof (clear and
convincing evidence), it is clearly not a "law that furthers the' . . . comfort, heath, safety, and general
welfare of all employees.'" Id. at 1114 (citation omitted). Since that time, the Ohio legislature
repealed R.C. 2745.01 and passed H.B. 498, revising R.C. 2745.01 effective April 4, 2005. The
revised statute is less stringent than the former. Because the injury in this case occurred in the year
2000, there are no controlling statutes, and Fyffe and its progeny control our determination.

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No. 05-3498
Smith v. General Motors Corp. et al

circumstances “equate to one that is substantially certain to result in harm to the employee, and

reasonably raise a justiciable issue of an intentional tort.” Fyffe, 570 N.E.2d at 1111-12. The

plaintiff must show, by a preponderance of the evidence, that the employer had “actual knowledge

of the exact dangers which ultimately caused” injury. Sanek v. Duracote Corp., 539 N.E.2d 1114,

1116-17 (Ohio 1989) (citation omitted).

       C. Smith’s Issues on Appeal

       Smith asserts that the district court erred in finding that there were no issues of material fact

that GM did not know with “substantial certainty” that Smith’s injuries were likely to occur, and

the court erred in not construing the evidence presented in the light most favorable to her, the non-

movant, as required by Fed. R. Civ. P. 56. Because our analysis of the defendant’s motion for

summary judgment requires de novo review, we must necessarily construe the record in the light

most favorable to Smith. See Matsushita Elec. Indus.Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). Therefore, the analyses of these two issues are conflated.

        Smith maintains that GM was substantially certain that her injury would occur because of

her working conditions. She asserts that the barrier surrounding the spindle drills of Operation 40

was a "guard", and that GM required her to "circumvent" this guard in the performance of her duties

as a job-setter. She states that because GM provided loose, Tyvek coveralls to their employees, and

allowed employees working near rotating machinery to wear their hair in ponytails in contravention

to GM’s own safety policies, GM was substantially certain that the injury she suffered was likely

to occur. In addition, the lack of ambient lighting in the area of the spindle drills required Smith to




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Smith v. General Motors Corp. et al

use a flashlight to investigate a problem with the transfer bar, and this forced her to be in close

proximity to the operating and dangerous machinery.

          Smith further asserts that GM was substantially certain that her injury would occur because

a previous injury had occurred in 1993 to Randy Petit, another GM employee working at the

Moraine Engine Plant. We consider these factors in turn, bearing in mind the stringent standard

required for a finding of substantial certainty of injury in employer intentional tort cases.

          1)     The barriers surrounding Operation 40's rotating spindles should be considered

a "guard", and GM required circumvention of the "guard" in the performance of Smith's job

duties.

          Smith states that the mesh barriers surrounding Operation 40 should be construed as a guard,

in keeping with the definition of a “guard” by the Industrial Commission of Ohio. The commission

defines a guard as "the covering, fencing, railing or enclosure, which shields an object from

accidental contact (see 'safety guard').” Ohio Admin. Code 4123:1-5-01 (B) (69). Smith asserts that

GM management agreed that the mesh fencing with gate was considered a guard, with the gate

portion being identified as a "swing guard". She states that because the mesh fencing with a swing

guard was a "guard", GM’s requirement that she "circumvent" the guard in order to perform her

tasks as a job-setter created an issue of material fact as to whether GM committed an employer

intentional tort.

          The district court correctly found that the evidence proffered by Smith concerning the

"guard" failed to raise a genuine issue of material fact on the second prong of the Fyffe test. The

court stated"[t]he essential fact supporting the conclusion that there was a genuine issue of material

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Smith v. General Motors Corp. et al

fact on the substantial certainty prong in Fyffe was that the employer had removed a safety guard

which permitted the plaintiff to be injured. Herein, there is no suggestion that the Defendants

removed a safety guard from operation 40 or did anything remotely similar to the actions of the

employer in Fyffe." Smith v. GM, et al , No.02 -CV-00029-WHR at 13, n.10 (hereinafter “slip

op.”).

         Smith relies on Fyffe to assert that the "removal" of a safety guard by an employer creates

an issue of material fact, because a jury could conclude that an injury was substantially certain to

occur once the guard was removed, and the intent required for an employer intentional tort could

be inferred from such an action. In Fyffe, a Plexiglas safety guard designed to prevent individuals

from getting their hands caught in a moving conveyer belt was routinely removed prior to cleaning

the conveyer. Fyffe, 570 N.E.2d at 1113. Although the machinery was not supposed to run while

the guard was removed for cleaning, Fyffe was taught by his supervisor to clean with the conveyer

moving, because it expedited the cleaning process. Id. at 1114. It was during this cleaning process

that Fyffe's arm was pulled into the conveyer and he suffered severe injuries. Id. at 1110. The court

found that the removal of the Plexiglas safety guard and the employer's instruction that the conveyer

should be run during the cleaning process raised an issue of material fact as to whether the employer

committed an intentional tort. Id. at 1113-14.3


         3
        Smith also relies on the unpublished case, Jones v. Bryan Canning Co., No. WM-97-4466,
1998 Ohio App LEXIS 708 (Ohio Ct. App. Feb. 27, 1998) for the proposition that the removal of
a safety guard raises an issue of material fact as to whether an employer has committed an
intentional tort. In Jones, the plaintiff was taught to clean an auger with towels while the auger was
moving. Jones at *2. "In order to be able to insert the rolled up towels, appellant was told to
remove the cover on a ‘nip point’,- an area usually enclosed because of its potential for injury to

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Smith v. General Motors Corp. et al

       Smith compares the entry into the mesh fencing surrounding Operation 40 through the swing

guards to the circumvention of the guards in both Fyffe and Jones. "Appellee subjected Linda Smith

and her co-workers to the dangers of the revolving spindles by requiring them to circumvent the

safety guard and troubleshoot within close proximity of same." (Appellant Br. 27) Yet, the

deposition testimony of Peter Buczek, a GM safety supervisor describes the metal fencing as an

“awareness barrier.” When asked to define an awareness barrier, Buczek stated: "[a] practical

definition is it was a guard that would prevent somebody from going into the hazard area

inadvertently. And to access the area to do troubleshooting they would have to open the device,

making them aware that they were entering an area that could be hazardous if it was operating."

(Buczek Dep. JA 557) Smith herself stated that entry into the fenced area was sometimes necessary

in order to view the transfer bar and see where it was jammed. (Smith Dep. JA 683) "The reason

it was necessary for power to the equipment to remain on while troubleshooting a jam up was

because if the power was not on to the transfer bars the fingers that held the engine head would drift

down and no longer be in contact, rendering it impossible to see where the jam up existed."

(Appellant Br. 7)

       Unlike the cleaning procedures in both Fyffe and Jones, entry through the barrier was the

only way a problem involving the transfer bar could be diagnosed. (Appellee Br. 4-10) The




persons working around the auger. A warning label, which originally illustrated that the auger
should not be engaged while the nip point cover was off had been partially obliterated due to wear
and tear and cleaning of the machine . . . ." Id. Further, the management acknowledged that it had
never advised the staff about the dangers of the towel cleaning method, or circumventing the "nip
points". Id. at 3.

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Smith v. General Motors Corp. et al

procedure involved visualizing the machinery from a distance of about two feet. At no time did

anyone instruct Smith to insert any part of her body into the rotating spindles or moving machinery,

in contrast to Fyffe or Jones. Smith readily admitted that she understood the dangers of being in

proximity to moving pieces of machinery, that it was “common sense.” (Smith Dep. JA 683)

Further, Smith attended regular safety training at GM. (Smith Dep. JA 671-80)

       Even assuming the mesh fencing with the "swing guard" was a guard within the terms of the

Ohio Administrative Code, there is no evidence in the record that the guard was removed by GM

management, nor did GM management instruct the employees to circumvent the guard. In fact, GM

management routinely entered the area through the “swing guard” to visualize the machinery.

(Smith Dep. JA 683) The district court properly noted that "the defendant's affirmative act must be

more than merely passively condoning practices and procedures, which, in hindsight, subject

employees to a greater risk of harm. That may be negligence or even recklessness, but it does not

constitute the inferred intent which is required by Fyffe." Smith, slip op. at 14.

       2)      GM provided loose fitting long sleeved Tyvek coveralls and allowed women to work

around rotating machinery with their hair in ponytails in direct contravention to GM's own safety

requirements. In addition, the lack of adequate ambient lighting in the work area required Smith

to use a flashlight and get in closer proximity to the dangerous equipment.

       Smith acknowledged that the Tyvek coveralls provided by GM for the employees were

intended to protect the workers personal garments, and GM did not require that employees wear the

garments. (Smith Dep. JA 676) The employees themselves could choose the appropriate size from

small, medium, or large. Id. at 678. Smith personally selected a size large coverall to wear. Id.

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She argues, however, that the size of the garment she chose was immaterial, because the danger

arose because of the loose fitting long sleeves. (Appellant Final Br. 19) She points out that wearing

loose garments and long sleeves is in direct contravention to the GM safety rules, which state: “the

wearing of loose clothing, long sleeves, neckties, bracelets, necklaces, wristwatches, or similar

jewelry is not permitted while working around revolving machinery.” (GM Powertrain Assembly

Plant general safety rules and practices; JA 513-514) The rules also state “[w]here there is a danger

of long hair being caught in the moving machinery or equipment, caps or hair nets must be worn or

hair must be tied back.” (JA 517) Smith asserts that because GM knew she was required to work

near rotating machinery in a poorly lit area, wearing loose fitting coveralls with her hair in a

ponytail, they knew with substantial certainty that the injury she had was likely to occur.

        The district court correctly found that these working conditions did not raise an issue of

material fact as to whether GM knew to a substantial certainty that Smith’s injury would occur.

Under Ohio law, GM’s failure to prohibit its employees from wearing loose fitting coveralls and

ponytails while working in decreased ambient lighting is not egregious enough to find that GM had

the inferred intent required for an intentional tort. In Jandro v. Ohio Edison, the court stated that

evidence beyond that which is required for both negligence and recklessness is required to establish

an intentional tort by an employer. 167 F.3d 309, 313 (6th Cir. 1999) (citing Mitchell v. Lawson Milk

Co., 532 N.E.2d 753, 756 (Ohio 1988)). In Mitchell, the Ohio Supreme Court found that “mere

knowledge of a risk falls short of substantial certainty and does not by itself establish intent.” Id. at

753. The court stated:




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       When the employer acts despite the knowledge of some risk, the employer's conduct
       may be negligent. When the risk is great and the probability increases that certain
       consequences may follow, the employer's conduct may be reckless. As the
       probability that certain consequences will follow further increases and the employer
       knows that injury to employees is certain, or substantially certain, to result from his
       act, and he still proceeds, he is treated by the law as if he had in fact desired to
       produce the result.

Id. at 755, quoting Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d 489 (Ohio 1988) (paragraph

six of the syllabus), and Kunkler v. Goodyear Tire & Rubber Co., 522 N.E.2d 477, 481 (Ohio 1988)

       In Jandro,, an electrical lineman was electrocuted while engaging in a dangerous procedure

known as “sliding the ground”. 167 F.3d at 312. This procedure was sometimes used by

experienced lineman, but was never supposed to be done without a special “hot-line” tool, according

to the employer’s safety guidelines. Id.     While the court found that management was at least

constructively aware of several safety violations, including the failure to hold a required safety

meeting prior to beginning the job, the use of a lift machine with controls that were not working, and

inadequately trained crew members, the court found that the management could not be substantially

certain that Jandro’s death would have occurred. In so deciding, the court stated :

       The district court was correct when it wrote that "the intentional tort exception to the
       Workers' Compensation Act . . . [encompasses] a particular scenario under Fyffe: one
       in which the employer is virtually certain that harm is about to occur but chooses to
       'look the other way' in the interest of continuing the job. One might describe this
       scenario as one in which the employer takes a stance of 'active ignorance' or even
       'willful blindness' in the face of an assured danger.


Id. at 316 (6th Cir. 1999). Based on Jandro, the mere knowledge of a safety violation or a

dangerous condition is not enough to support a finding of an employer intentional tort. “Even if




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[defendant] knew of and appreciated the risks . . . the violations involved were not substantially

certain to cause an accident.” Jandro, 167 F.3d at 315.

        Further in Sanek v. Duracote Corp., the Ohio Supreme Court stated;

        There are many acts within the business or manufacturing process which involve the
        existence of dangers, where management fails to take corrective action, institute
        safety measures, or properly warn the employees of the risks involved. Such conduct
        may be characterized as gross negligence or wantonness on the part of the employer.
        However, in view of the overall purposes of our Workers’Compensation Act, such
        conduct should not be classified as an ‘intentional tort’, and therefore an exception,
        under Blankenship or Jones to the exclusivity of the Act.

539 N.E.2d 1114, 1117 (Ohio 1989) (quoting Van Fossen v. Babcock & Wilcox Co., 522 N.E.2d

489, 504-05 (Ohio, 1988)).      Thus, even if GM knew that wearing coveralls and ponytails was

contrary to their safety policies, and the ambient lighting required the use of a flashlight to visualize

machinery, we agree with the district court that GM was not substantially certain that the injury

Smith suffered was going to occur.4

        3)      The trial court failed to acknowledge the presence of a prior similar incident, and

failed to construe the facts of the prior incident in the light most favorable to Smith.

        According to Smith,“ a prior incident did in fact occur when another employee also became

entangled. The prior incident involved loose clothing being caught in the revolving spindles of the

spindle machine when the employee circumvented a guard to perform repair work.” (Appellant Br.


        4
         An employer’s failure to follow documented safety procedures does not necessarily infer
a finding of a substantial certainty of injury. See Edsall v. Hose Master, Inc., 1997 Ohio App.
LEXIS 5697 (Ohio Ct. App. 1997) (Despite the employer instructing the employee to make
adjustments to a machine while it was still running, in contravention of required safety procedures,
the court found no substantial certainty of injury when the employee’s hand slipped into the
operating machine and she was injured.).

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20) Randy Pettit, an employee at the Moraine plant was injured in 1993, seven years prior to the

injury sustained by Smith. Pettit was working on a multi-spindle drilling machine on Operation 20,

an operation that bored holes in bearing caps. (Pettit Dep. JA 644) Pettit testified, “I reached in

to move a coolant line and the drills caught around my stomach, around my coveralls, around my

stomach and it just wound up.” Id. Pettit suffered injuries requiring him to be off of work for

approximately 10 weeks. Id. Smith relies on this accident to show that GM had knowledge of a

prior incident, and therefore, GM knew to a substantial certainty that her injury would occur.

       The district court found that Pettit’s injury was caused by his reaching into the machine to

move a coolant line, which caused his coveralls to be caught in the drills. See Smith, slip op. at 16.

We agree. Pettit was not trying to visualize a transfer bar in darkened surroundings when the loose

sleeve of his coverall was caught in the machine, as was the case with Smith. When asked if his

coveralls were loose or hanging, as Smith avers, he replied, “No. Not really. I mean I just got too

close to the drill.” (Pettit Dep. JA 644)

       To establish that an employer knew with substantial certainty that an injury would occur,

“[t]he plaintiff has the burden of proving by a preponderance of the evidence that the employer had

“actual knowledge of the exact dangers which ultimately caused injury.” Sanek, 539 N.E.2d at

1117. Even viewing Pettit’s injury in the light most favorable to Smith, it simply does not support

a finding that Pettit’s injury gave GM prior notice of the exact dangers that Smith claims caused her

injuries. In fact, loose coveralls, the lack of adequate ambient lighting, and wearing a ponytail had

nothing to do with Mr. Pettit’s injuries, according to his own deposition testimony. Therefore, the




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district court was correct in finding that Pettit’s injury was not a prior incident that would cause GM

to have substantial certainty that Smith’s injury would occur.

       D. GM’s Issue on Appeal

       Having found that the district court correctly decided that there are no issues of material fact

as to whether GM knew with substantial certainty that Smith would be injured under the second

prong of Fyffe, it is unnecessary to evaluate GM’s claim of an alternate ground for affirmance.

                                        IV. CONCLUSION

       For the aforementioned reasons, the opinion of the district court granting summary judgment

to the defendant, GM, is AFFIRMED.




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