[Cite as Breitenbach v. Double Z Constr. Co., L.L.C., 2016-Ohio-1272.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                             JUDGES:
TIFFANY N. BREITENBACH, et al.                       :       Hon. William B. Hoffman, P. J.
                                                     :       Hon. John W. Wise, J.
                     Plaintiffs-Appellants           :       Hon. Craig R. Baldwin, J.
                                                     :
-vs-                                                 :
                                                     :       Case No. 15 CA 53
DOUBLE Z CONSTRUCTION CO.,                           :
LLC.                                                 :
                                                     :       OPINION
                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                 Appeal from the Court of Common Pleas,
                                                         Case No. 2014-CV-00701


JUDGMENT:                                                Affirmed



DATE OF JUDGMENT ENTRY:                                  March 24, 2016



APPEARANCES:

For Plaintiffs-Appellants                                For Defendant-Appellee

RAYMOND J. SCHMIDLIN, JR.                                STEVEN CARLINO
TIMOTHY L. MCGARRY                                       DAVID T. PATTERSON
HENDERSON, SCHMIDLIN & MCGARRY                           WESTON HURD
840 Brainard Road                                        10 West Broad Street, Suite 2400
Highland Heights, Ohio 44143                             Columbus, Ohio 43215-3469
[Cite as Breitenbach v. Double Z Constr. Co., L.L.C., 2016-Ohio-1272.]


Wise, J.

        {¶1}     Plaintiffs-Appellants, Tiffany Breitenbach, Administratrix of the Estate of

Micah Montgomery, Deceased, Abbigail Montgomery, a minor, and Reid Montgomery, a

minor, appeal the June 29, 2015, decision of the Licking County Court of Common

Pleas granting summary judgment in favor of Appellee Double Z Construction Co., LLC.

                            STATEMENT OF THE CASE AND FACTS

        {¶2}     This appeal arises from a workplace intentional tort claim filed in 2014 by

Plaintiffs-Appellants, Tiffany Breitenbach, Administratrix of the Estate of Micah

Montgomery, Deceased, Abbigail Montgomery, a minor, and Reid Montgomery, a

minor, after Micah Montgomery ("Montgomery") sustained fatal injuries on April 12,

2013, while working as a construction worker for Defendant-Appellee Double Z

Construction Co., LLC ("Double Z"). Montgomery was fatally injured when a steel beam

struck the construction boom lift in which he was an occupant, causing him to be

ejected and fall to the ground.

        {¶3}     The relevant facts are as follows:

        {¶4}     Micah Montgomery worked for Double Z Construction Co., LLC. in its

bridge construction operations. On the day Montgomery was killed, he was working as a

laborer on a project which involved demolition work of a vehicle traffic bridge on

Interstate 70 eastbound in Licking County near Newark, Ohio. (Chandler depo. at 20;

Osborne depo. at 17).

        {¶5}     The other employees who were working at the job site at the time of the

incident are as follows: Gary C. Stanley ("Stanley"), Superintendent; Jason Chandler,
Licking County, Case No. 15 CA 53                                                     3


Foreman; Bruce Osborne, ground man; Dwayne Cutler, laborer; Randall Ralston,

operator; Jeremy Warner, operator; Joe Tackett, laborer; Mike Neil, crane operator.

       {¶6}   The first step in this process was removing the concrete decking and

parapets from the steel frame of the bridges. (Deposition of Dwayne Cutler ("Cutler

depo.") at 15; Guzzo depo. at 10-11). Once the concrete is removed, the process of

removing the exposed steel beams is begun. (Chandler depo. at. 17). An aerial lift is

used to hoist personnel to perform cutting and rigging of the concrete. (Guzzo depo. at

12).

       {¶7}   Montgomery was operating an aerial lift and working directly with Michael

Neal ("Neal"), the crane operator, during the preparation to remove a 60-foot I-beam

used in part to support the overpass/bridge. (Chandler depo. at 17, 26; Cutler depo. at

13, 23; Neal depo at 17, 19; Record 24, Osborne depo. at 21, 28). During the removal

of the concrete, Osborne was in the aerial lift with Montgomery. However, prior to the

steel beams being removed, Osborne left the lift, and Montgomery was alone in the lift.

(Guzzo Dep. at 12).

       {¶8}   This was the first I-beam removed on this job site. (Chandler depo. at 17;

Ralston depo. at 12). Montgomery used an oxygen/acetylene torch in order to cut

through the I-beam, and to burn two holes in order to rig the beam to be moved to the

ground by the crane. (Cutler depo. at 23; M. Guzzo depo. at 12; Osborne depo. at 21;

Tackett depo. at 15; Ralston depo. at 10). The holes for the rigging should have been

spaced an identical distance from the center of the beam. (Osborne depo. at 24; Tackett

at 19). For unknown reasons, Montgomery improperly spaced the holes approximately

six (6) feet from the center on one side and eighteen (18) feet from center on the other
Licking County, Case No. 15 CA 53                                                        4


side. (Chandler depo. at 26; Cutler depo. at 33; M. Guzzo depo. at 21; Osborne depo.

at 24, 34; Ralston depo. at 19).

      {¶9}      Montgomery then secured the I-beam to two 16-foot long wire rope slings.

The rope slings were then connected to the crane's main hook, which was equipped

with a spring-loaded, self-closing metal latch. (See Affidavit and Report of Matthew R.

Gardiner, P.E., attached to Defendant-Appellee's Motion for Summary Judgment).

      {¶10} After completing the rigging and connections between the crane and the

beam, Montgomery retracted the telescoping aerial lift in order for Neal to begin

lowering the beam to the ground. Sometime after the pick began, Montgomery swung

his man-lift bucket back toward the beam. (Chandler depo. at 17, 22; M. Guzzo depo. at

12; Neal depo. at 33).

      {¶11} During the crane's operation, with the 60-foot I-beam, the sling cable on

the side where Montgomery was positioned in the aerial lift, slid out of the crane's hook,

causing one side of the steel I-beam to fall and come in contact with the aerial lift where

Montgomery was located. (Neal depo. at 31; Osborne depo. at 24; Tackett depo. at 17,

35; Ralston depo. at 15; Warner depo. at 14, 19). This caused the basket to almost

completely break away from the aerial lift's boom. (Cutler depo. at 20; Ralston depo. at

23). The aerial lift crashed to the ground below along with Montgomery, resulting in

crushing injuries to Montgomery's back and neck and near instantaneous death. (Cutler

depo. at 21).

      {¶12} On February 20, 2014, Tiffany Breitenbach, as Administratrix of the Estate

of Micah Montgomery, Deceased, filed a Complaint alleging workplace intentional tort in

the Pike County Court of Common Pleas. Abbigail Montgomery and Reid Montgomery,
Licking County, Case No. 15 CA 53                                                  5


the minor children of Micah Montgomery, were also named as Plaintiffs in the

Complaint. The case was ultimately transferred to Licking County Common Pleas Court.

      {¶13} The Complaint alleged an employer intentional tort claim against Double Z

Construction, Co., LLC. Appellant alleged in its Complaint that Double Z required

Montgomery to perform work: 1) in the absence of required safety guards and safety

devices; and 2) while intentionally and deliberately exposed to hazardous and

dangerous processes, procedures, instrumentalities and conditions of which Double Z

had knowledge. (Complaint at ¶14).

      {¶14} Double Z's insurers, Valley Forge Insurance Co. and Continental Casualty

Insurance Co., sought and obtained leave to intervene.

      {¶15} On January 30, 2015, Appellee Double Z filed a Motion for Summary

Judgment.

      {¶16} On April 14, 2015, Appellants filed a Brief in Opposition to Appellee’s

Motion for Summary Judgment.

      {¶17} On April 24, 2015, Appellee filed its Reply in Support of Motion for

Summary Judgment.

      {¶18} On May 8, 2015, Appellants filed their Sur Reply.

      {¶19} By Judgment Entry dated June 29, 2015, the trial court granted Appellee’s

Motion for Summary Judgment, finding “no evidence … that defendant deliberately

intended to injure Montgomery or any other employee.”

      {¶20} Appellants now appeal, assigning the following errors for review:
Licking County, Case No. 15 CA 53                                                      6


                                     ASSIGNMENTS OF ERROR

       {¶21} “I. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

TO DEFENDANT DOUBLE Z CONSTRUCTION CO., LLC WHEN PLAINTIFFS WERE

ENTITLED TO A PRESUMPTION THAT DOUBLE Z ACTED WITH THE DELIBERATE

INTENT TO INJURE THE DECEASED WHEN DOUBLE Z FAILED TO MAKE AN

EQUIPMENT SAFETY GUARD AVAILABLE FOR USE. OHIO REV. CODE

§2745.01(C).

       {¶22} II. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

TO DOUBLE Z WHEN MATERIAL ISSUES OF FACT REMAINED REGARDING

WHETHER DOUBLE Z ACTED WITH DELIBERATE INTENT TO INJURE THE

DECEASED BY KNOWINGLY PERFORMING AN UNSAFE LIFT OF A STEEL BEAM

WHILE KNOWING THAT THE DECEASED WAS IN THE FALL ZONE OF THAT

BEAM. OHIO REV. CODE §2745.01(A).”

                          Summary Judgment Standard of Review

       {¶23} We refer to Civ.R. 56(C) in reviewing a motion for summary judgment

which provides, in pertinent part:

               Summary judgment shall be rendered forthwith if the pleading,

       depositions, answers to interrogatories, written admissions, affidavits,

       transcripts of evidence in the pending case and written stipulations of fact,

       if any, timely filed in the action, show that there is no genuine issue as to

       any material fact and that the moving party is entitled to judgment as a

       matter of law.* * * A summary judgment shall not be rendered unless it

       appears from such evidence or stipulation and only from the evidence or
Licking County, Case No. 15 CA 53                                                         7


       stipulation, that reasonable minds can come to but one conclusion and

       that conclusion is adverse to the party against whom the motion for

       summary judgment is made, such party being entitled to have the

       evidence or stipulation construed most strongly in the party's favor.

       {¶24} The moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record before the trial

court, which demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party's claim. Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d

264 (1996). The nonmoving party then has a reciprocal burden of specificity and cannot

rest on the allegations or denials in the pleadings, but must set forth “specific facts” by

the means listed in Civ.R. 56(C) showing that a “triable issue of fact” exists. Mitseff v.

Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798, 801 (1988).

       {¶25} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears a material fact is genuinely disputed. Vahila v. Hall, 77 Ohio St.3d 421, 429,

674 N.E.2d 1164 (1997), citing Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264

(1996).


                                               I., II.

       {¶26} In both of their Assignments of Error, Appellants argue that the trial court

erred in granting summary judgment in this matter. We disagree.

       {¶27} An intentional tort involves an act committed with the specific intent to

injure or with the belief that injury is substantially certain to occur. Jones v. VIP Dev.

Co., 15 Ohio St.3d 90, 95, 472 N.E.2d 1046 (1984), citing 1 Restatement of the Law 2d,

Torts, Section 8A (1965). When the employer proceeds despite knowledge that injuries
Licking County, Case No. 15 CA 53                                                           8


are certain or substantially certain to result, “he is treated by the law as if he had in fact

desired to produce the result.” Fyffe v. Jeno's, Inc., 59 Ohio St.3d 115, 118, 570 N.E.2d

1108 (1991). Under Fyffe, an employee could establish intent based on substantial

certainty by demonstrating the following:

       {¶28} (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. Id.

       {¶29} R.C. §2745.01, which now governs employer intentional torts in Ohio, took

effect on April 7, 2005, and provides as follows:

              (A) In an action brought against an employer by an 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.
Licking County, Case No. 15 CA 53                                                       9


              (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.


       {¶30} As defined by R.C. §2745.01(B), “substantially certain” means that an

“employer acts with deliberate intent to cause an employee to suffer an injury, a

disease, a condition, or death.” Acting with the belief that an injury is “substantially

certain” to occur is not analogous to wanton misconduct, nor is it “enough to show that

the employer was merely negligent, or even reckless.” Talik v. Fed. Marine Terminals,

Inc., 117 Ohio St.3d 496, 2008–Ohio–937, 885 N.E.2d 204, ¶17; Weimerskirch v.

Coakley, 10th Dist. Franklin No. 07AP–952, 2008–Ohio–1681.

       {¶31} Rather, as noted by the Ohio Supreme Court, one may recover “for

employer intentional torts only when an employer acts with specific intent to cause an

injury.” Kaminski v. Metal Wire Prods. Co., 125 Ohio St.3d 250, 2010–Ohio–1027, 927

N.E.2d 1066, ¶56; Houdek v. ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491,

2012–Ohio–5685, 983 N.E.2d 1253, ¶25 (finding “absent a deliberate intent to injure

another, an employer is not liable for a claim alleging an employer intentional tort, and

the injured employee's exclusive remedy is within the workers' compensation system”).

       {¶32} As noted by the court in Kaminski v. Metal & Wire Products, 175 Ohio

App.3d 227, 2008–Ohio–1521, 886 N.E.2d 262, “R.C. 2745.01 codifies the common-law

employer intentional tort and makes its remedy an employee's sole recourse for an

employer intentional tort.” Id. at paragraph 14.
Licking County, Case No. 15 CA 53                                                         10

      {¶33} As further explained by the Ohio Supreme Court in Hoyle v. DTJ Ents.,

Inc., 143 Ohio St.3d 197, 2015–Ohio–843:

               R.C. 2745.01(A) incorporates the definition of an employer

      intentional tort from Jones, 15 Ohio St.3d at 95, 472 N.E.2d 1046, and

      requires a plaintiff to prove either deliberate intent to injure or a belief that

      injury    was   substantially   certain.   But   R.C.    2745.01(B)     equates

      “substantially certain” with “deliberate intent” to injure. Thus, the “ ‘two

      options of proof [under R.C. 2745.01(A) ] become: (1) the employer acted

      with intent to injure or (2) the employer acted with deliberate intent to

      injure.’ ” Kaminski at ¶ 55, quoting Kaminski v. Metal & Wire Prods. Co.,

      175 Ohio App.3d 227, 2008–Ohio–1521, 886 N.E.2d 262, ¶ 31 (7th Dist.).

      “[W]hat appears at first glance as two distinct bases for liability is revealed

      on closer examination to be one and the same.” Rudisill v. Ford Motor Co.,

      709 F.3d 595, 602–603 (6th Cir. 2013) (describing R.C. 2745.01 as “a

      statute at war with itself”).

               The General Assembly's intent in enacting R.C. 2745.01 was to

      “significantly restrict” recovery for employer intentional torts to situations in

      which the employer “acts with specific intent to cause an injury.” Kaminski

      at ¶ 57; Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d

      280, 2010–Ohio–1029, 927 N.E.2d 1092, ¶ 26, citing Kaminski at ¶ 56.

      “[A]bsent a deliberate intent to injure another, an employer is not liable for

      a claim alleging an employer intentional tort, and the injured employee's

      exclusive remedy is within the workers' compensation system.” Houdek v.
Licking County, Case No. 15 CA 53                                                     11

      ThyssenKrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012–Ohio–5685,

      983 N.E.2d 1253, ¶ 2.

      {¶34} The Supreme Court further found in Houdek, supra, that, in the absence

of deliberate removal (of a safety guard), a plaintiff must establish that the employer

acted with specific intent to injure him. In Houdek, the Court rejected the argument that

the intent inquiry was an objective one satisfied by an employer's mere knowledge of a

hazardous condition, as such would be covered by workers' compensation. See Broyles

v. Kasper Machine Co., 6th Cir. No. 12–3464, 2013 WL 827713 (March 7, 2013). Even

if an employer places an employee in a potentially dangerous situation, there must also

be evidence that either management or the supervisor deliberately intended to injure the

employee for R.C. 2745.01(C) to apply. Houdek, 134 Ohio St.3d 491, 2012–Ohio–5685,

983 N.E.2d 1253.

      {¶35} Simply stated, R.C. §2745.01 requires specific or deliberate intent to

cause injury in order to recover on an employer intentional tort claim. R.C. §2745.01(C)

establishes a rebuttable presumption that the employer intended to injure the worker if

the employer deliberately removes a safety guard. Houdek, 134 Ohio St.3d 491, 2012–

Ohio–5685, 983 N.E.2d 1253, ¶12.

      {¶36} In the instant case, Appellants argue that a rigging device known as a

clevis is an “equipment safety guard” and that such clevis was “deliberately removed”,

creating a rebuttable presumption under R.C. §2745.01(C) that Double Z acted with

deliberate intent to injure Montgomery.
Licking County, Case No. 15 CA 53                                                     12

                                   Equipment Safety Guard

       {¶37} The General Assembly has not provided a definition of “equipment safety

guard” or “deliberate removal” for purposes of R.C. §2745.01(C).

       {¶38} In Fickle v. Conversion Technologies Int’l., 6th Dist. Williams No. WM-10-

016, 2011-Ohio-2960, the court addressed the issue of what constitutes an equipment

safety guard, wherein it stated:

       {¶39} “The General Assembly has not manifested any intent to give “equipment

safety guard” or its component terms a technical meaning. There is nothing in the

statute or the case law that suggests the General Assembly intended to incorporate any

of the various equipment-specific or industry-specific definitions of guard appearing

throughout the administrative or OSHA regulations, or for any agency or regulatory

measure to be considered a definitional source.”

       {¶40} The Fickle court then went on to construe the undefined statutory terms

according to their generally accepted meaning:

       {¶41} “Guard” is defined as “a protective or safety device; specif: a device for

protecting a machine part or the operator of a machine.” Merriam–Webster's Collegiate

Dictionary, supra, at 516. “Safety” means “the condition of being safe from undergoing

or causing hurt, injury, or loss.” Id. at 1027, 365 N.E.2d 1274. And “equipment” is

defined as “the implements used in an operation or activity: APPARATUS.” Id. at 392,

365 N.E.2d 1274. In turn, “device” is “a piece of equipment or a mechanism designed to

serve a special purpose or perform a special function.” Id. at 316, 365 N.E.2d 1274.

“Protect” means “to cover or shield from exposure, injury, or destruction: GUARD.” Id. at
Licking County, Case No. 15 CA 53                                                       13


935, 365 N.E.2d 1274. “Safe” is defined as “free from harm or risk” and “secure from

threat of danger, harm, or loss.” Id. at 1027, 365 N.E.2d 1274. Fickle at ¶ 38.

       {¶42} Based on the foregoing definitions, the court arrived at the following

definition of “equipment safety guard”:

       {¶43} “… as used in R.C. 2745.01(C), an “equipment safety guard” would be

commonly understood to mean a device that is designed to shield the operator from

exposure to or injury by a dangerous aspect of the equipment.”

       {¶44} This definition was later adopted by the Ohio Supreme Court in Hewitt v.

L.E. Myers Co., 134 Ohio St.3d 199, 2012-Ohio-5317, after its analysis and review of

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

       {¶45} In the case before us, we find that the clevis shackle is not an equipment

safety guard as argued by Appellants. A clevis shackle is a piece of rigging equipment

which is separate and apart from the crane hook or slings. When a clevis shackle is

used, the cable slings are seated in the shackle and the shackle is seated in the crane

hook, rather than the slings being directly seated in the hook. (See Vermillion Affidavit).

It is used when the included angle on the sling is greater than 90 degrees. While a

clevis shackle’s purpose is to make rigging under certain conditions safer, such purpose

does not make the device a safety equipment guard, only arguably a safety-related

device.

       {¶46} As stated by the trial court, it is unclear which dangerous aspect of which

piece of equipment is being argued by Appellant: the slings, the crane, or both.
Licking County, Case No. 15 CA 53                                                        14


       {¶47} Under R.C. §2745.01(C), we find that a clevis shackle is not “designed to

shield an operator (crane operator) from exposure to or injury by a dangerous aspect of

the equipment (crane).”1

       {¶48} “The General Assembly did not make the presumption applicable upon the

deliberate removal of any safety-related device, but only of an equipment safety guard,

and we may not add words to an unambiguous statute under the guise of interpretation.

Davis v. Davis, 115 Ohio St.3d 180, 873 N.E.2d 1305, 2007–Ohio–5049, ¶ 15, 20; State

v. Lowe, 112 Ohio St.3d 507, 861 N.E.2d 512, 2007–Ohio–606, ¶ 15; State ex rel.

Purdy v. Clermont Cty. Bd. of Elections (1997), 77 Ohio St.3d 338, 340, 673 N.E.2d

1351.” Fickle, supra.

                                       Deliberate Removal

       {¶49} The Fickle court also held that “ ‘deliberate removal’ for purposes of R.C.

§2745.01(C) means “a considered decision to take away or off, disable, bypass, or

eliminate, or to render inoperable or unavailable for use.” The court, in a footnote, went

on to explain:

       {¶50} “It is important to note that R.C. 2745.01(C) does not require proof that the

employer removed an equipment safety guard with the intent to injure in order for the

presumption to arise. The whole point of division (C) is to presume the injurious intent

required under divisions (A) and (B). It would be quite anomalous to interpret R.C.

2745.01(C) as requiring proof that the employer acted with the intent to injure in order to

1  In Pixley v. Pro-Pak Industries, Inc., 142 Ohio St.3d 203, 208, 2014-Ohio-5460,
because the plaintiff in that case could not establish the existence of an intentional tort,
the Ohio Supreme Court chose not to address the issue of whether the definition of an
equipment safety guard is limited to devices shielding only operators from exposure to
injury by a dangerous aspect of the equipment or whether it encompasses all
employees injured by its deliberate removal.
Licking County, Case No. 15 CA 53                                                    15


create a presumption that the employer acted with the intent to injure. Such an

interpretation would render division (C) a nullity.”

       {¶51} Appellant argues that national engineering standards require the use of a

clevis shackle when the angle of the sling legs is greater than 90 degrees. Here, the

angle ended up being approximately 103 degrees.          Appellants therefore argue that

failure to provide a clevis shackle amounted to deliberate removal.

       {¶52} Even assuming arguendo that a clevis shackle was an equipment safety

guard, in the case sub judice there is no evidence that Double Z deliberately removed

the clevis or made it unavailable. Evidence was presented that a clevis shackle was

available at Double Z’s office which was approximately 45 minutes away. While it may

have delayed the job, such delay does not constitute unavailability as contemplated

under an intentional tort analysis.

       {¶53} Further, Montgomery himself cut/burned the holes and performed the

rigging on the I-beam at issue in this case. Prior to the holes being improperly spaced

by Montgomery, there was no reason to anticipate that the angles of the sling legs in

this case would exceed 90 degrees. Montgomery made the decision to attach the cable

slings directly to the crane hook after unevenly spacing the holes for the cable slings.

There is no evidence that the decision to proceed without a clevis shackle was the

result of careful and thorough consideration or a deliberate decision.

       {¶54} Based on the facts in this case, we do not find that the clevis was an

equipment safety guard and further find that the clevis was not deliberately removed

pursuant to R.C. 2745.01(C).
Licking County, Case No. 15 CA 53                                                       16

                                        Deliberate Intent

       {¶55} Appellants further contend that the evidence is sufficient to withstand

summary judgment under R.C. §2745.01(A) even without the presumption provided in

division (C).

       {¶56} Appellants argue that Double Z acted with deliberate intent to injure

Montgomery. In support, Appellants argue (1) both foremen at the job site were aware

that Montgomery had improperly rigged the I-beam, causing the load to be uneven; (2)

one of the foremen was aware that Montgomery’s ariel lift was stuck in the mud, out of

the view of the crane operator, in the fall zone when they began to move/lower the

beam; (3) Double Z failed to provide the required clevis shackle; and (4) OSHA citations

were issued finding that Montgomery was not a qualified rigger, an unused cable sling

line was left in the crane hook, and Appellee failed to stop operations when the dangers

in this case became apparent.

       {¶57} We have already determined that the evidence is insufficient to establish

that Double Z deliberately removed an equipment safety guard for purposes of the

presumption under division (C). In light of that determination, we must conclude that

such is also insufficient to establish that Double Z acted with deliberate intent to injure

under divisions (A) and (B). We also find that a failure to provide adequate training is

not sufficient to establish deliberate intent to injure. These kinds of failures did not

suffice to establish an employer intentional tort even under the common-law standard of

“substantial certainty.” See, e.g., Davis v. AK Steel, 12th Dist. No. CA2005–07–183,

2006–Ohio–596, ¶12; McCarthy v. Sterling Chems., Inc., 193 Ohio App.3d 164, 2011-

Ohio-887. While the conduct of Double Z in moving/removing the improperly rigged I-
Licking County, Case No. 15 CA 53                                                      17


beam may be reckless, there is no evidence that Double Z acted with deliberate intent

to injure Montgomery. Here, Montgomery's death was the result of a tragic accident,

and at most, the evidence shows that this accident may have been avoided had certain

precautions been taken. However, this evidence does not show that Appellee

deliberately intended to injure Montgomery as set forth in R.C. §2745.01.

                                      OSHA Regulations

      {¶58} Appellants also argue that Appellee Double Z Construction was

substantially certain that injury would occur because it was subsequently cited with

violating OSHA safety regulation.

      {¶59} As noted by this Court in Reising v. Broshco Fabricated Prods., Richland

App. No. 2005CA0132, 2006-Ohio-4449 at paragraph 61: “ ‘OSHA citations, standing

alone, do not demonstrate an intent to injure.’ Fleck v. Snyder Brick and Block (Mar. 16,

2001), Montgomery App. No. 18368; see, also, Vermett v. Fred Christen and Sons Co.

(2000), 138 Ohio App.3d 586, 603, 741 N.E.2d 954 (refusing to consider an OSHA

violation issued after an accident in determining substantial certainty and stating that

OSHA does not affect an employer's duty to an employee); Cross v. Hydracrete

Pumping Co. (1999), 133 Ohio App.3d 501, 507 n. 1, 728 N.E.2d 1104 (stating that the

employee's ‘attempt to impute actual knowledge through an OSHA violation is

misplaced. An OSHA violation might present evidence of negligence’); Neil v. Shook

(Jan. 16, 1998), Montgomery App. No. 16422 (‘We conclude that the prior OSHA

violations do not manifest the substantial certainty of harm required, but are only one of

many factors to be considered). An employer's failure to follow proper safety procedures

might be classified as grossly negligent or wanton, but does not constitute an intentional
Licking County, Case No. 15 CA 53                                              18

tort. Neil, supra citing Young v. Miller Bros. Excavating, Inc. (July 26, 1989),

Montgomery App. Nos. 11306 and 11307.” (See also Harris v. Benjamin Steel Co., 5th

Dist. Richland No. 14 CA 96, 2015-Ohio-1499, ¶¶ 41-43).

       {¶60} Appellant’s Assignments of Error are denied.

       {¶61} For the foregoing reasons, the judgment of the Court of Common Pleas,

Licking County, Ohio, is affirmed.



By Wise, J.,

Baldwin, J., concurs

Hoffman, P. J., concurs in part and dissents in part.



                                              _________________________________
                                              HON. JOHN W. WISE


                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN


                                              _________________________________
                                              HON. CRAIG R. BALDWIN

JWW/ 0302
Licking County, Case No. 15 CA 53                                                        19

Hoffman, P.J., concurring in part and dissenting in part

         {¶62} I concur in the majority’s analysis and decision the clevis shackle is not an

equipment safety guard, and thereby, overrule Appellant’s first assignment of error. I

further concur in the majority’s decision to overrule Appellant’s second assignment of

error.

         {¶63} Having determined in the first assignment of error the clevis shackle was

not an equipment safety guard, any discussion of “deliberate removal” is unnecessary to

our disposition of this appeal. Nevertheless, I disagree with the majority’s conclusion a

“45 minute delay” occasioned by the need to retrieve an available equipment safety

guard is insufficient to find the employer made it unavailable for use.

         {¶64} Furthermore, I find any discussion regarding Montgomery’s actions in

improperly rigging the I-beam irrelevant to our analysis of Appellant’s intentional tort

claims. Ohio law bars the application of assumption of risk or contributory negligence as

a defense to an intentional tort claim. Cremeans v. Willmar Henderson Mfg. Co., a Div.

of Waycrosse, Inc. (1991), 57 Ohio St.3d 145, 566 N.E.2d 1203.
