[Cite as Conley v. Endres Processing Ohio, L.L.C., 2013-Ohio-419.]




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




MICHAEL J. CONLEY, ET AL.,

        PLAINTIFFS-APPELLANTS,                                       CASE NO. 16-12-11

        v.

ENDRES PROCESSING OHIO, LLC,
                                                                     OPINION
        DEFENDANT-APPELLEE.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 11-CV-0064

                                     Judgment Affirmed

                          Date of Decision: February 11, 2013




APPEARANCES:

        Nicholas M. Dodosh for Appellants

        Erin N. Poplar for Appellee
Case No. 16-12-11


PRESTON, P.J.

        {¶1} Plaintiff-appellant, Michael J. Conley,1 appeals the Wyandot County

Court of Common Pleas’ judgment granting defendant-appellee, Endres

Processing Ohio, LLC, summary judgment. Conley argues that the trial court

erred when it granted Endres Processing’s motion for summary judgment because

the record creates a genuine issue of material fact in dispute. For the reasons that

follow, we affirm.

        {¶2} Conley worked for Endres Processing as a material handler from July

2008 through July 2009. (Conley Depo. at 8, 13). In July 2009, Conley went to

check an auger that Nate Johnson, the control room operator at that time, believed

was not working properly. (Id. at 44-45). Conley discovered the auger was not

turning and used a radio to tell Johnson to turn it off because it was burning the

belts. (Id. at 45-46). At that time, a metal plate that covered the belts and pulleys

was not on the auger, but was on the catwalk where the auger was located. (Id. at

47). Conley did not have a lockout device and did not lockout/tagout the machine.

(Id. at 27, 98). A power disconnect switch was also located near the auger, but

Conley did not use it. (Id. at 107). Instead, Conley told Johnson to turn the auger

back on, and then turn it off so Conley could observe the belts and pulleys to

determine the problem. (Id. at 46-47). Conley believed that Johnson would then


1
 Conley’s minor children, whose loss of consortium claim the trial court dismissed on summary judgment,
are also plaintiffs-appellants .

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leave the auger turned off. (Id.) Conley put his hand in the auger to check the

tension of one of the belts. (Id.) At the same time, Johnson turned the auger back

on. (Id.). Conley’s fingers were caught in the belts and pulleys, resulting in a cut

to his middle finger and nail, as well as the amputation of his index finger. (Id. at

48-52).

       {¶3} On May 9, 2011, Conley filed a complaint against Endres Processing

alleging an intentional employer tort and seeking in excess of $25,000 in damages.

(Doc. No. 1). Endres Processing filed its answer on August 1, 2011. (Doc. No.

13).

       {¶4} On April 19, 2012, Endres Processing filed a motion for summary

judgment.    (Doc. No. 23).     On May 21, 2012, Conley filed his motion in

opposition. (Doc. No. 33). On June 22, 2012, Endres Processing filed a motion in

response. (Doc. No. 53). On July 20, 2012, Conley filed a sur-reply to Endres

Processing’s motion. (Doc. No. 65). On August 2, 2012, the trial court filed its

judgment entry granting Endres Processing’s motion for summary judgment.

(Doc. No. 76).

       {¶5} On August 27, 2012, Conley filed a notice of appeal. (Doc. No. 80).

Conley now raises one assignment of error and Endres Processing raises one

cross-assignment of error for our review.

                            Assignment of Error No. I


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      The trial court erred to the prejudice of plaintiff-appellant
      Michael Conley when it granted the motion for summary
      judgment of defendant-appellee Endres Processing Ohio, LLC
      because the evidence as set forth in the record creates a genuine
      issue of material fact in dispute.

      {¶6} In his sole assignment of error, Conley argues the trial court erred by

granting Endres Processing’s motion for summary judgment because the record

creates a genuine issue of material fact regarding whether Endres Processing

committed an employer intentional tort. Conley contends that Endres Processing

deliberately removed a safety guard attached to the auger, creating a rebuttable

presumption that Endres Processing intended to injure him. Conley also argues

that Endres Processing failed to comply with appropriate lockout/tagout

procedures and removed a safety guard when it failed to provide him with a

lockout device.

      {¶7} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, and reasonable minds can reach but one conclusion when viewing

the evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).




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       {¶8} Material facts are those facts “that might affect the outcome of the suit

under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993), citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Whether a genuine

issue exists is answered by the following inquiry: [d]oes the evidence present ‘a

sufficient disagreement to require submission to a jury’ or is it ‘so one-sided that

one party must prevail as a matter of law[?]’” Turner at 340, citing Liberty Lobby,

Inc., at 251-252.

       {¶9} Summary judgment should be granted with caution, resolving all

doubts in favor of the nonmoving party. Osborne v. Lyles, 63 Ohio St.3d 326, 333

(1992). “The purpose of summary judgment is not to try issues of fact, but is

rather to determine whether triable issues of fact exist.” Lakota Loc. School Dist.

Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 643 (6th Dist.1996).

       {¶10} R.C. 2745.01, which pertains to employer intentional torts, states in

pertinent part:

      (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




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       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.

      (C)    Deliberate removal by an employer of an equipment safety

       guard or deliberate misrepresentation of a toxic or hazardous

       substance creates a rebuttable presumption that the removal or

       misrepresentation was committed with intent to injure another if an

       injury or occupational disease or condition occurs as a direct result.

       ***

       {¶11} The Supreme Court of Ohio recently addressed the issue of what

constitutes “deliberate removal” of an “equipment safety guard” pursuant to R.C.

2745.01(C) in Hewitt v. L.E. Myers Co., 2012-Ohio-5317. In that case, Larry

Hewitt was working as an apprentice lineman for L.E. Myers Company, an

electrical-utility construction contractor. Id. at ¶ 4. Hewitt’s task was to work in

an elevated bucket to tie in a new power line, which was de-energized. Id. at ¶ 6.

According to L.E. Myers’ policy and the job briefing log, workers were required

to wear rubber gloves and sleeves on that day. Id. Hewitt claimed that another

lineman told him that he did not need to wear the gloves and sleeves because the


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line was de-energized. Id. Hewitt admitted that the gloves and sleeves were

available. Id. At some point, another lineman yelled at Hewitt from the ground

while Hewitt was working in the elevated bucket. Id. at ¶ 7. Hewitt turned

towards the lineman, and the wire he was holding came into contact with an

energized line, resulting in severe burns. Id. Hewitt filed an action against L.E.

Myers, alleging a workplace intentional tort. Id. at ¶ 9.

       {¶12} The Court held that “as used in R.C. 2745.01(C), ‘equipment safety

guard’ means a device designed to shield the operator from exposure to or injury

by a dangerous aspect of the equipment, and the ‘deliberate 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.” Id. at ¶ 2. The Court

determined that the gloves and sleeves were personal items that the employee

controls, and thus are not “an equipment safety guard” pursuant to R.C.

2745.01(C). Id. at ¶ 3. The Court further stated, “[a]n employee’s failure to use

them, or an employer’s failure to require an employee to use them, does not

constitute the deliberate removal by an employer of an equipment safety guard.”

Id. The Court rejected a broader interpretation of “equipment safety guard,”

stating, “to include any generic safety-related item ignores not only the meaning of

the words used but also the General Assembly’s intent to restrict liability for

intentional torts.” Id. at ¶ 24. The Court also held that “deliberate removal”


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pursuant to R.C. 2745.01(C) “may be described as a careful and thorough decision

to get rid of or eliminate an equipment safety guard.” Id. at ¶ 29.

       {¶13} In the present case, Conley argues that Endres Processing removed

an equipment safety guard within the meaning of R.C. 2745.01(C) by failing to

provide him with a lockout device and by removing the metal plate that covered

the auger’s belts and pulleys. This Court has previously rejected the argument that

an employer’s failure to comply with proper lockout/tagout procedures implicates

R.C. 2745.01(C) in Klaus v. United Equity, Inc., 3d Dist. No. 1-07-63, 2010-Ohio-

3549, ¶ 33. Additionally, in Hewitt, the Supreme Court of Ohio differentiated

between “personal protective items that the employee controls” and “a device that

is designed to shield the operator from exposure to or injury by a dangerous aspect

of the equipment.” Hewitt at ¶ 26.

       {¶14} Here, the lockout device is an item that the employee controls rather

than an “equipment safety guard” pursuant to R.C. 2745.01(C). Similar to the

sleeves and gloves in Hewitt, locks were available in the control room. (Aten

Depo. at 34-36); (Teynor Depo. at 78); (Huffman Depo. at 38-39); (Holdman

Depo. at 47). Conley admitted that he had observed the locks in the control room

but did not ask anyone if he could use them. (Conley Depo. at 27). Conley

believed that the locks belonged to other employees. (Id. at 29). Viewing the

evidence in the light most favorable to Conley and assuming he could not use one


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of the control room locks to lockout/tagout the machine, the auger where Conley

was injured had a power disconnect switch located next to it that could be used

without a lockout/tagout device. (Aten Depo. at 37). Other employees used the

power disconnect switch when they did not lockout/tagout the machine. (Id. at

38); (Huffman Depo. at 51).      Conley admitted that he knew how the power

disconnect switch operated and that it did not require any special equipment.

(Conley Depo. at 106-107). Conley also acknowledged that when he had assisted

other employees when they changed the belts, they had locked out the machine.

(Id. at 74). Conley testified that he did not request that Johnson lockout/tagout the

machine, that there was no particular reason that he did not request that someone

else lockout/tagout the machine, and that he did not think to use the power

disconnect switch. (Id. at 84, 98, 107). Furthermore, Endres Processing provided,

and Conley attended, a lockout/tagout training on the day of the incident. (Id. at

94-95). After reviewing the evidence, we conclude that the lockout/tagout device

was a personal protective item within Conley’s control rather than a “safety guard”

pursuant to R.C. 2745.01(C). Similar to the sleeves and gloves in Hewitt, Conley

could have avoided the danger by accessing available safety equipment. Conley

acknowledges that lockout devices were located in the control room, other

employees had lockout devices, and the power disconnect switch would have

served the same purpose. Consequently, Conley’s failure to use the lockout/tagout


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device, and any failure by Endres Processing to require him to use a lockout/tagout

device, cannot constitute a deliberate removal of a safety guard within the

meaning of R.C. 2745.01(C). See Hewitt at ¶ 3.

       {¶15} We will next address Conley’s argument that Endres Processing

deliberately removed a metal plate that covered the auger’s belts and pulleys,

which Conley contends is a safety guard pursuant to R.C. 2745.01(C). Assuming

arguendo that the metal plate is a safety guard, we cannot find any evidence that

Endres Processing deliberately removed it. The deposition testimony establishes

that while the metal plate was frequently removed from the auger, it could have

been removed by any number of employees, the failure to replace it was likely

inadvertent, and Endres Processing had not directed the employees to remove the

metal plate and not replace it.

       {¶16} Michael Aten, an Endres Processing material handler, testified that

the metal plate was sometimes off the machine, even when no one was working on

it. (Aten Depo. at 42). Aten believed the plate was off the machine a fairly high

percentage of the time, at least half the time he was near the auger. (Id. at 42-43).

Aten testified that an employee could take the cover off and put it back on with a

crescent wrench.     (Id. at 45).   Aten also testified that a material handler,

maintenance person, or supervisor could have removed the guard because crescent

wrenches were available to all the employees. (Id. at 73-74).


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       {¶17} Jesse Teynor, a control room operator, testified that he would

occasionally forget to replace the metal plate after he had finished working on the

machine. (Teynor Depo. as 28-29). Teynor estimated that he forgot to replace the

plate about 20 percent of the time. (Id. at 30). Teynor testified that any operator

or maintenance person could remove the metal plate, but that he did not know who

removed it prior to Conley’s injury. (Id. at 39).

       {¶18} Conley testified that at the time of his injury, the metal plate was not

on the auger, but that it was on the catwalk. (Conley Depo. at 46-47). Conley

estimated that the metal plate was on the machine about half of the time, and off

the machine about half the time. (Id. at 76). Conley also testified that the plate

had to be removed to expose the belts, and “[t]o make sure that the motor is

moving and everything else is moving.” (Id. at 79-80). Conley believed that

maintenance personnel were most likely to have removed the metal plate. (Id. at

80). Conley stated that he had never removed the plate. (Id.). Conley testified

that it would only take a few minutes to take the plate off or put it back on the

machine. (Id. at 87). Conley also testified that his supervisors had not instructed

him to take the metal plate off of the machine and to leave it off. (Id. at 88).

       {¶19} According to Patrick Huffman, a control room operator, employees

frequently took the metal plate off the machine and put it back on, and many times

the auger ran without the plate. (Huffman Depo. at 49-50). Huffman testified that


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he had not observed anyone take the metal plate off and fail to replace it. (Id. at

50). Huffman also testified that he had never instructed anyone to remove the

metal plate and not replace it. (Id. at 54). Huffman testified that for the work

Conley was doing, he would have had to remove the plate. (Id. at 63). Huffman

estimated that the metal plate was in place 90 or 95 percent of the time. (Id. at

64).

       {¶20} After reviewing the evidence, we cannot find any indication that

Endres Processing made a “deliberate decision to lift, push aside, take off, or

otherwise eliminate” the metal plate. Hewitt, 2012-Ohio-5317, at ¶ 2. We also

cannot find any evidence that Endres Processing made “a careful and thorough

decision to get rid of or eliminate” the metal plate. Id. at ¶ 29. At most, the

evidence demonstrates that Endres Processing may have been aware that at times

employees failed to replace the metal plate after removing it. However, there is no

evidence that this failure was the result of a deliberate decision by Endres

Processing. Rather, it appears that the employees’ failure to replace the plate was

usually inadvertent, and not a consequence of any instruction by Endres

Processing. Furthermore, Conley has not presented any evidence regarding who

removed the metal plate on the day of his accident. Conley himself admitted that

any number of employees could have removed the metal plate. Thus, we cannot




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find that the fact that the metal plate was removed from the auger on the day of

Conley’s accident was the result of a deliberate decision by Endres Processing.

       {¶21} Conley’s assignment of error is, therefore, overruled.

                        Cross-Assignment of Error No. I

       The trial court erred in determining that the belt cover was a
       “safety guard” as that term is intended under R.C. §2745.01(C).

       {¶22} In its cross-assignment of error, Endres Processing argues the trial

court erred in determining that the metal plate covering the auger’s belts and

pulleys is a safety guard pursuant to R.C. 2745.01(C). Endres Processing contends

that a “safety guard” for purposes of the statute is a device which prevents an

operator from accidentally placing his hands in a machine during its normal

operation. Endres Processing argues the auger at issue in this case is operated

from the control room, so it does not have the type of “safety guard” intended by

the statute. Endres Processing compares the auger’s metal plate to the hood of a

car, contending that removing the metal plate to work on the belts and pulleys is

analogous to removing a car’s hood to work on the engine. Endres Processing

argues that this interpretation of “safety guard” is not what the legislature

intended.

       {¶23} Based upon our disposition of Conley’s assignment or error,

resulting in an affirmance of the trial court’s decision, this defensive assignment of

error is moot and need not be considered. See Trudell v. Trudell, 3d Dist. No. 5-

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11-47, 2012-Ohio-5023, ¶ 24; Glidden Co. v. Lumbermens Mut. Cas. Co., 112

Ohio St.3d 470, 2005-Ohio-6553, ¶ 31-32; Parton v. Weilnau, 169 Ohio St. 145

(1959), paragraph seven of the syllabus (We may consider an appellee’s cross-

assignment of error “only when necessary to prevent a reversal of the judgment

under review.”).

       {¶24} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued and having found appellee’s cross-assignment of

error moot, we affirm the judgment of the trial court.

                                                           Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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