[Cite as McAllister v. Myers Industries, 2019-Ohio-773.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

BRIAN J. MCALLISTER                                         C.A. No.   29040

        Appellant

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
MYERS INDUSTRIES, INC., et al.                              COURT OF COMMON PLEAS
                                                            COUNTY OF SUMMIT, OHIO
        Appellees                                           CASE No.   CV-2017-10-4164

                                 DECISION AND JOURNAL ENTRY

Dated: March 6, 2019



        CARR, Judge.

        {¶1}     Plaintiff-Appellant Brian J. McAllister appeals from judgments of the Summit

County Court of Common Pleas. This Court reverses and remands the matter for proceedings

consistent with this opinion.

                                                       I.

        {¶2}     On April 3, 2014, Mr. McAllister, while working as an employee of Defendant-

Appellee Myers Industries, Inc., was injured when an injection molding machine crushed his left

hand causing serious injuries to that hand.

        {¶3}     Mr. McAllister initially filed suit in 2016, but subsequently voluntarily dismissed

the suit on October 4, 2016. On October 4, 2017, he filed the instant suit against Myers

Industries, Inc. and Defendants-Appellees Filter Specialties Co. and Bill Hartwick.

Approximately two months before Mr. McAllister was injured, Mr. Hartwick of Filter
                                                  2


Specialties Co. performed work on the injection molding machine at issue at the request of

Myers Industries, Inc.

       {¶4}    Mr. McAllister asserted an employer intentional tort claim against Myers

Industries, Inc., a negligence claim against Filter Specialties Co. and Mr. Hartwick, and a claim

for punitive damages. In addition, Mr. McAllister filed a declaratory judgment claim concerning

Myers Industries, Inc.’s possible subrogation rights if Mr. McAllister was successful on his other

claims. The Ohio Bureau of Workers’ Compensation moved to intervene. After its motion was

granted, it filed a complaint seeking recovery of funds it expended.

       {¶5}    Myers Industries, Inc. filed a motion to dismiss1 Mr. McAllister’s employer

intentional tort claim and the claim for punitive damages.          With respect to the employer

intentional tort claim, Myers Industries, Inc. argued that it was barred by the statute of limitations

and it failed to state a claim for relief against Myers Industries, Inc. Ultimately, the trial court

granted the motion to dismiss concluding that the allegations did not meet the heightened

pleading standard required by law. Specifically, the trial court concluded that Mr. McAllister

failed to provide “specific facts showing that Myers [Industries, Inc.] intended to injure [Mr.

McAllister], Myers [Industries, Inc.] believed it was substantially certain that [Mr. McAllister]

would be injured or that Myers [Industries, Inc.] deliberately removed a safety guard.”

       {¶6}    Mr. Hartwick and Filter Specialties, Co also filed a motion to dismiss or in the

alternative, a motion for summary judgment based upon the statute of limitations. The trial court

granted the motion for summary judgment. The trial court then concluded that the claim for

declaratory relief was moot and dismissed it as well.



       1
       The motion was framed as a motion to dismiss or in the alternative, for partial summary
judgment.
                                                 3


       {¶7}    Mr. McAllister has appealed, raising two assignments of error for our review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN GRANTING THE MOTION TO DISMISS
       FILED BY APPELLEE MYERS INDUSTRIES.

       {¶8}    Mr. McAllister argues in his first assignment or error that the trial court erred in

granting the motion to dismiss his employer intentional tort claim.

       {¶9}    “This Court reviews an order granting a Civ.R. 12(B)(6) motion to dismiss de

novo.” Grubb & Assocs. LPA v. Brown, 9th Dist. Lorain No. 17CA011201, 2018-Ohio-3526, ¶

7. “A Civ.R. 12(B)(6) motion tests the sufficiency of the complaint, and dismissal is appropriate

where the complaint fail[s] to state a claim upon which relief can be granted.”             (Internal

quotations and citations omitted.) Id. “In construing a motion to dismiss pursuant to Civ.R.

12(B)(6), the court must presume that all factual allegations of the complaint are true and make

all reasonable inferences in favor of the non-moving party. Before the court may dismiss the

complaint, it must appear beyond doubt that plaintiff can prove no set of facts entitling [him] to

recovery.” (Internal quotations and citations omitted.) Id. at ¶ 8.

       {¶10} With respect to employer intentional tort claims, the Supreme Court has “carve[d]

out a heightened standard of review for Civ.R. 12(B)(6) motions * * *.” Byrd v. Faber, 57 Ohio

St.3d 56, 60 (1991), citing Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988). The rationale

for doing so was “the need to deter the number of baseless claims against employers, the

importance of preventing every workplace injury from being converted into an intentional tort

claim, and the goal of facilitating the efficient administration of justice * * *.” Byrd at 60. Thus,

“in order to survive a Civ.R. 12(B)(6) motion to dismiss, a plaintiff bringing an intentional tort

claim against an employer must allege certain facts with particularity.”              Id. at 60-61.
                                                4


“Unsupported conclusions that [the defendant] committed an intentional tort are not taken as

admitted by a motion to dismiss and are not sufficient to withstand such a motion.” Mitchell at

193.

       {¶11} In Mitchell, the Supreme Court held that, the complaint must allege “facts

showing 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 employer's act and

despite this knowledge, still proceeded.”     Id.   “There have been various changes in the

intentional tort statutes after the decision in Mitchell was issued, but none have affected the

heightened pleading requirement.” Bullis v. Sun Healthcare Group, 2d Dist. Miami No. 2011-

CA-21, 2012-Ohio-2112, ¶ 14.

       {¶12} R.C. 2745.01, the statute at issue in the instant appeal, provides as follows:

       (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 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 an occupational disease or condition occurs as a
       direct result.

       {¶13} “[A]s used in R.C. 2745.01(C), ‘equipment safety guard’ means ‘a device that is

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

equipment.’” Hewitt v. L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 26, quoting

Fickle v. Conversion Technologies Internatl., Inc., 6th Dist. Williams No. WM-10-016, 2011-
                                                5


Ohio-2960, ¶ 43. “[T]he ‘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 from the machine.” Hewitt at ¶ 30. “Although ‘removal’ may encompass more than

physically removing a guard from equipment and making it unavailable, such as bypassing or

disabling the guard, an employer’s failure to train or instruct an employee on a safety procedure

does not constitute the deliberate removal of an equipment safety guard.” Id. at ¶ 29.

       {¶14} In his complaint, Mr. McAllister alleged, inter alia, the following:

       The injection molding machine involved in this incident * * * came equipped
       with various safety guards that protected people who were using the machine.

       [] One specific safety guard on this piece of equipment was a sliding safety gate
       that was “interlocked,” which means the injection molding machine would not
       operate when the sliding gate was opened.

       [] There was an interlocked safety guard on the front sliding safety gate of the
       injection mold[ing] machine. When the front safety gate was open, then the
       machine should not be operational.

       [] There was also an interlocked safety guard on the rear sliding safety gate of the
       injection mold[ing] machine. When this rear safety gate was open, then the
       machine should not be operational.

       [] On the day Plaintiff Brian McAllister was injured, he opened the front sliding
       safety gate that had the interlocked safety guard on it in order to change the mold
       on the injection mold machine.

       [] With the front safety gate in this position, the injection mold[ing] machine
       should not have been operational.

       [] While Plaintiff Brian McAllister was working to change the mold, in an effort
       to help, a co-worker opened the rear sliding safety gate to the machine that also
       had an interlocked safety guard on it.

       [] With the rear safety gate in this position, the injection mold[ing] machine
       should not have been operational.

       [] Despite the fact the sliding safety gates to this machine were in positions that
       should have made the injection mold[ing] machine inoperable, when the co-
       worker opened the rear sliding safety gate, an ejector plate in the machine
                                        6


suddenly moved within the machine, causing Plaintiff Brian McAllister’s hand to
be crushed.

[] The reason this injury to Plaintiff Brian McAllister happened is because
Defendant Myers Industries, by and through its managers, employees, and agents,
prior to Plaintiff Brian McAllister’s injury, deliberately took action to change
the wiring of the machine in a way that resulted in the bypassing and removal of
the interlocked safety guard on the rear sliding safety gate.

[] Approximately two months before Plaintiff Brian McAllister was injured,
Defendant Myers Industries, by and through its managers, employee, and agents,
was aware that there was a problem with the injection mold[ing] machine that was
involved in this incident.

[] Specifically, Defendant Myers Industries contacted Defendant Bill Hartwick of
Defendant Filter Specialties Co. to inspect the injection mold[ing] machine that
was involved in this incident.

[] On February 5, 2014, Defendant Bill Hartwick informed management at
Defendant Myers Industries there was a part on the injection mold[ing] machine
that was worn out and needed to be replaced. * * *

[] The problem with this part was preventing Defendant Myers Industries from
running the injection mold machine on a steady basis.

[] Rather than shutting down the injection mold[ing] machine until the
replacement part arrived and was installed, Defendant Myers Industries made the
conscious decision to instruct and authorize Defendant Bill Hartwick to change
the wiring system in [a] way that would keep the injection mold[ing] machine
running.

[] Defendant Bill Hartwick informed management at Defendant Myers Industries
that the wiring circuit he was installing on the machine at its direction was a
“temporary circuit” that should be removed once the new part was installed.

[] The installation of the circuit by Defendant Bill Hartwick, that was done at
Defendant Myers Industries[’] direction and with its authorization, bypassed and
removed the interlock[ed] safety guard on the rear sliding safety gate because now
parts inside of the machine could still move, even when the rear sliding safety
gate was open.

[] Defendant Myers Industries also had a manual from the manufacture[r] of the
injection mold[ing] machine[ ] which specifically warned Defendant Myers
Industries that all guards should be in their proper place when the machine was
running and interlocks should never be defeated.
                                                 7


       [] Despite this information and warning, Defendant Myers Industries made the
       conscious and deliberate decision to continue to run the injection mold machine
       that was involved in this incident without an important safety guard it originally
       came with and to expose its employees, including Plaintiff Brian McAllister, to
       the dangerous safety condition that decision created.

       [] For the reasons set forth above and other facts that will be learned during
       discovery, Defendant Myers Industries intentionally injured Plaintiff Brian
       McAllister as defined by and in violation of R.C. [] 2745.01 and Ohio case law.

       [] For the reasons set forth above and other facts that will be learned during
       discovery, Plaintiff Brian McAllister is also entitled to the rebuttable presumption
       of an “intent to injure” that is afforded to him under [R.C.] 2745.01(C).
       Specifically, Plaintiff Brian McAllister is entitled to this presumption because
       Defendant Myers Industries[’] decision to add a temporary circuit to the machine
       so it could keep the machine running until a new part could be installed
       effectively removed the interlocked safety guard on the rear sliding safety gate
       that came on the machine; protected employees like Brian McAllister; and would
       have prevented this incident from happening. * * *

       [] As a direct and proximate result of the tortious conduct of Defendant Myers
       Industries described above, Plaintiff Brian McAllister suffered serious permanent
       injuries, including a partial amputation of his hand; incurred substantial medical
       expenses; incurred substantial lost wages; experienced a loss of his ability to
       perform his usual activities, disfigurement, pain and suffering; mental anguish;
       and suffered other substantial losses and damages, both in the past and into the
       future.

(Emphasis in original.)

       {¶15} We conclude that, when these allegations are viewed as true and all inferences are

made in Mr. McAllister’s favor, his complaint is sufficient to withstand a motion to dismiss.

Grubb & Assocs. LPA, 2018-Ohio-3526, at ¶ 8.

       {¶16} In its motion to dismiss, Myers Industries, Inc. asserted that Mr. McAllister failed

to allege that it intended to harm him, that it removed any specifically identified safety guard, or

that it deliberately removed a safety guard.

       {¶17} Here, because we conclude that the allegations satisfy R.C. 2745.01(C), we need

not address whether the allegations specially assert that Myers Industries, Inc. intended to harm

Mr. McAllister.
                                                 8


       {¶18} Myers Industries, Inc. argued in the trial court and on appeal that Mr. McAllister

failed to identify with particularity how the “interlocked safety guard” met the definition of a

safety guard in Ohio case law. Notably, the cases that Myers Industries relied upon in the trial

court involved summary judgment or a motion for directed verdict, not a motion to dismiss. See

Fickle, 2011-Ohio-2960, at ¶ 9-14; Hewitt, 134 Ohio St.3d 199, 2012-Ohio-5317, ¶ 12. Myers

Industries, Inc. has not pointed to a case requiring that, in order to survive a motion to dismiss, a

plaintiff must not only identify a safety guard at issue, but also explain the workings of the safety

guard so as to demonstrate that it meets the definition of a safety guard in Ohio case law.

Essentially, it appears that it is Myers Industries, Inc’s belief that Mr. McAllister had to prove

much of his case at the pleadings stage.

       {¶19} As noted above, “[a]s used in R.C. 2745.01(C), ‘equipment safety guard’ means

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

of the equipment.’” Hewitt, 134 Ohio St.3d 199, 2012-Ohio-5317, at ¶ 26, quoting Fickle at ¶

43. Mr. McAllister alleged that the safety guard at issue was the “interlocked safety guard on the

rear sliding safety gate[.]” Mr. McAllister also asserted in his complaint that “[t]he installation

of the circuit by Defendant Bill Hartwick, that was done at Defendant Myers Industries[’]

direction and with its authorization, bypassed and removed the interlock[ed] safety guard on the

rear sliding safety gate because now parts inside of the machine could still move, even when the

rear sliding safety gate was open.” From that allegation, one can reasonably infer that the

function of the interlocked safety guard on the rear sliding safety gate was to prevent parts inside

the machine from moving when the rear sliding safety gate was open. While it is unclear how

precisely the interlocked safety guard would do so, we cannot say that it is not possible that in so

doing, the interlocked safety guard might “shield the operator from exposure to or injury by a
                                                9


dangerous aspect of the equipment[.]” See Hewitt at ¶ 26. Here, Mr. McAllister did not simply

state that a safety guard was removed which caused his injury. Instead, he described the safety

guard and its function in such a way that it is possible that the safety guard could be a safety

guard as contemplated by Ohio case law.

       {¶20} Myers Industries, Inc. additionally argues that Mr. McAllister failed to allege with

particularity that it deliberately removed a safety guard. Mr. McAllister alleged in his complaint,

inter alia, the following allegations:   “The reason this injury to Plaintiff Brian McAllister

happened is because Defendant Myers Industries, by and through its managers, employees, and

agents, prior to Plaintiff Brian McAllister’s injury, deliberately took action to change the wiring

of the machine in a way that resulted in the bypassing and removal of the interlocked safety

guard on the rear sliding safety gate.” (Emphasis omitted.) “The installation of the circuit by

Defendant Bill Hartwick, that was done at Defendant Myers Industries[’] direction and with its

authorization, bypassed and removed the interlock[ed] safety guard on the rear sliding safety gate

because now parts inside of the machine could still move, even when the rear sliding safety gate

was open.” “Defendant Myers Industries also had a manual from the manufacture[r] of the

injection mold[ing] machine[ ] which specifically warned Defendant Myers Industries that all

guards should be in their proper place when the machine was running and interlocks should

never be defeated.” “Despite this information and warning, Defendant Myers Industries made

the conscious and deliberate decision to continue to run the injection mold machine that was

involved in this incident without an important safety guard it originally came with and to expose

its employees, including Plaintiff Brian McAllister, to the dangerous safety condition that

decision created.” (Emphasis added.)
                                                 10


       {¶21} While it is possible the latter, italicized allegation refers to only the information in

the prior paragraph of the complaint, i.e. the one pertaining to the manual, it is also possible that

Mr. McAllister was alleging that Myers Industries, Inc. had the “information” and thus

knowledge that changing the wiring resulted in the interlocked safety guard on the rear sliding

safety gate being bypassed and removed. Thus, not only would Myers Industries, Inc. have

made the “conscious and deliberate decision” to run the machine without the safety guard, it

would have known that changing the wiring removed the safety guard. We conclude that Mr.

McAllister’s allegations were sufficient to allege that Myers Industries, Inc. deliberately

removed a safety guard.

       {¶22} To the extent that Myers Industries has argued that the machine was not operating

when Mr. McAllister was injured and thus the allegations fail to support that a safety guard was

needed, it failed to raise that argument in its motion to dismiss. While it did mention that

argument in its reply brief in the trial court, reply briefs are not the appropriate place to make

new arguments. See HSBC Bank USA v. Beirne, 9th Dist. Medina No. 10CA0113-M, 2012-

Ohio-1386, ¶ 18.     In addition, Meyers Industries, Inc. has not convinced us that such an

argument is dispositive with respect to a motion to dismiss given that the allegations must be

viewed in a light most favorable to Mr. McAllister. See Grubb & Assocs. LPA, 2018-Ohio-3526,

at ¶ 8; App.R. 16(A)(7).

       {¶23} While the parties also discuss whether Mr. McAllister’s claims against Myers

Industries, Inc. were timely filed, the trial court has not yet considered the merits of this issue.

This Court is a reviewing Court, and as such, we would be exceeding the scope of our role if we

were to consider this in the first instance. See Huntington Natl. Bank v. Anderson, 9th Dist.

Lorain No. 17CA011223, 2018-Ohio-3936, ¶ 32.
                                                11


        {¶24} Mr. McAllister’s first assignment of error is sustained.

                                 ASSIGNMENT OF ERROR II

        THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN
        FAVOR OF APPELLEES BILL HARTWICK AND FILTER SPECIALTIES
        CO.

        {¶25} Mr. McAllister argues in his second assignment of error that the trial court erred

in granting summary judgment in favor of Mr. Hartwick and Filter Specialties Co. Specifically,

Mr. McAllister argues that the statute of limitations was tolled pursuant to R.C. 2305.15 and that

it did not begin to run until Mr. Hartwick’s and Filter Specialties Co.’s identities were

discovered. However, we sustain Mr. McAllister’s assignment of error because Mr. Hartwick

and Filter Specialties Co. failed to meet their initial summary judgment burden on the issue of

the statute of limitations.

        {¶26} This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). This Court applies the same standard as the trial

court, viewing the facts in the case in the light most favorable to the non-moving party and

resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio

App.3d 7, 12 (6th Dist.1983).

        {¶27} Pursuant to Civ.R. 56(C), summary judgment is proper if:

        (1) No genuine issue as to any material fact remains to be litigated; (2) the
        moving party is entitled to judgment as a matter of law; and (3) it appears from
        the evidence that reasonable minds can come to but one conclusion, and viewing
        such evidence most strongly in favor of the party against whom the motion for
        summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977).

        {¶28} The party moving for summary judgment bears the initial burden of informing the

trial court of the basis for the motion and pointing to parts of the record that show the absence of
                                                 12


a genuine issue of material fact.       Dresher v. Burt, 75 Ohio St.3d 280, 292-293 (1996).

Specifically, the moving party must support the motion by pointing to some evidence in the

record of the type listed in Civ.R. 56(C). Id. Once a moving party satisfies its burden of

supporting its motion for summary judgment with acceptable evidence pursuant to Civ.R. 56(C),

Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or

denials of the moving party’s pleadings. Id. at 293. Rather, the non-moving party has a

reciprocal burden of responding by setting forth specific facts, demonstrating that a “genuine

triable issue” exists to be litigated at trial. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d

447, 449 (1996).

       {¶29} In order to substantiate their assertion that Mr. McAllister’s claim was filed

outside the statute of limitations, Mr. Hartwick and Filter Specialties Co. pointed to the prior

case involving the parties. However, Mr. Hartwick and Filter Specialties Co. did not submit any

evidence from the prior proceedings in support of their arguments. Thus, none of the documents

from the prior proceedings are in our record.

       {¶30} Nonetheless, in concluding that Mr. McAllister’s claim was filed outside the

statute of limitations, it appears that the trial court took judicial notice of the proceedings in the

prior case. This was improper. “It is well established ‘[t]rial courts will not take judicial notice

of their own proceedings in other cases, even though between the same parties and even though

the same judge presided. A trial court may only take judicial notice of prior proceedings in the

immediate case.’” State v. Vaughn, 9th Dist. Summit No. 27902, 2016-Ohio-7384, ¶ 25, quoting

In re J.C., 186 Ohio App.3d 243, 2010-Ohio-637, ¶ 14 (9th Dist.).

       {¶31} Accordingly, the trial court erred in relying on evidence outside the record in

determining summary judgment was appropriate. Further, because Mr. Hartwick and Filter
                                                 13


Specialties Co. failed to present evidence to establish their entitlement to summary judgment on

the basis of the statute of limitations, the trial erred in granting summary judgment on that basis.

       {¶32} Mr. McAllister’s second assignment of error is sustained.

                                                 III.

       {¶33} Mr. McAllister’s assignments of error are sustained. The judgment of the Summit

County Court of Common Pleas is reversed and this matter is remanded for proceedings

consistent with this opinion.

                                                                                 Judgment reversed
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                        DONNA J. CARR
                                                        FOR THE COURT
                                          14




SCHAFER, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

R. CRAIG MCLAUGHLIN, Attorney at Law, for Appellant.

ALI RAZZAGHI, Attorney at Law, for Appellees.

JOSEPH N. GROSS, Attorney at Law, for Appellee.

EDWARD SAADI, Attorney at law, for Appellee.
