The opinion
Cooney, Presiding Judge,
concurring in part and dissenting in part.
{¶ 53} I respectfully dissent regarding the first assignment of error involving Atlantic. I concur, however, with the majority’s disposition of the second assignment of error related to Littell on the product-liability claim.
{¶ 54} I would affirm summary judgment for Atlantic because Kerg has failed to demonstrate the second prong of the
Fyffe
test, knowledge by the employer that if Kerg is subjected to such a dangerous procedure, harm will be a substantial certainty.
{¶ 55} As the majority correctly points out, Kerg was usually reminded to put the keepers on, but Kattas, who filled in for the regular forklift operator, apparently failed to remind her. The employer had no knowledge that the forklift operator failed to observe the keepers or remind Kerg. The mere knowledge of a risk — something short of substantial certainty — is not intent.
Fyffe,
59 Ohio St.3d at 118, 570 N.E.2d 1108 . Failure to remind Kerg to put the keepers on is negligent, at best.
{¶ 56} The majority places great emphasis on Kerg’s lack of experience operating the Littell reel independently, without supervision. Yet part of the forklift operator’s job is to observe the keepers in place. And although Kattas
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did not frequently operate the forklift, he was experienced and licensed to operate it. He also had a thorough knowledge of loading the reel. Kerg learned that the keepers were a basic part of the operation as part of her on-the-job training. It is not as if this basic safety step was not taught to a trainee until lesson 12 in a 12-week program. Merely because a teenage driver is “in training” and backs the car out of the garage for the first time without a parent supervising does not mean the trainee-driver is not familiar with first closing the car door or opening the garage door before pulling out.
{¶ 57} The majority relies on
Page v. Taylor Lumber, Inc.,
161 Ohio App.3d 644 , 2005-Ohio-3104 , 831 N.E.2d 1017 , for the premise that inadequate training is a relevant factor that supports the substantial-certainty prong.
Page,
however, did not involve inadequate training, but cited
Vermett v. Fred Christen & Sons Co.
(2000), 138 Ohio App.3d 586, 602 , 741 N.E.2d 954 , for the proposition that inadequate training may be a relevant circumstance. In
Vermett ,
the plaintiff-employee had trained on the machine only between 15 minutes and two hours and had never operated the press independently prior to the day of the accident. He had not been instructed what to do when a piece became stuck and could not recall being instructed to keep his hands out of the die space or reading the warning label on the press itself.
{¶ 58} In a recent case,
Estate of Merrell v. M. Weingold & Co.,
Cuyahoga App. No. 88508, 2007-Ohio-3070 , 2007 WL 1776357 , this court reversed the granting of summary judgment for the employer because a reasonable juror could conclude that the burners-employees were adequately trained regarding how to safely clear a jam in the baler when the door would not close properly. The defendant-employer, M. Weingold, could not cite any specific training given to any of its employees about how to safely clear a jam. No safety meetings had ever been conducted, nor were any safety manuals distributed regarding the safe operation of the baler. Id. at ¶ 32. In fact, one of the employees testified that he had not been trained on a safe way to clear a jam and just did it “whatever way’s the easiest.” Id.
{¶ 59} The instant case involves far different facts. Kerg had been trained for several weeks in putting on the keepers and had done the operation independently for two weeks before her accident. Granted, the supervisor or forklift operator would frequently remind her to do that basic step, but that reminder was an added safety measure by the employer. The dangerous condition here was Kattas’s failure to remind Kerg, but there is no evidence that Atlantic knew that Kerg would be with a forklift operator who would not remind her of the basic step and that harm would be a substantial certainty.
{¶ 60} I would follow a more analogous case decided by this court to affirm summary judgment for Atlantic. We affirmed the granting of summary judg
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ment for the employer in
Burgos v. Areway, Inc.
(1996), 114 Ohio App.3d 380 , 683 N.E.2d 345 , in which the plaintiff-employee was provided on-the-job training in his position as a plater, a job that he had performed for four months. He was injured when he fell into a tank as he walked on the lips of the tank to retrieve racks that had fallen into the tank. His supervisor expected Burgos to retrieve the rack from the catwalk or use safety boards. Burgos, however, testified that the safety boards were never used to retrieve parts, and no one had ever told him to use the safety boards. Moreover, his trainer did not always use safety boards. Id. at 382 , 683 N.E.2d 345 . In 20 years of operation, no one had ever fallen into a tank at Areway, but plaintiffs expert stated that Areway must have known that injury was substantially certain to occur by the practice of employees retrieving racks from the lips of the tank. Id. at 383 , 683 N.E.2d 345 .
{¶ 61} Despite the expert’s report and Burgos’s testimony regarding his alleged inadequate safety training, we held that reasonable minds cannot conclude that the employer knew that injury was substantially certain to occur. Id. at 384 , 683 N.E.2d 345 . We held that where the employer makes safety devices available but does not enforce their use, the conduct is negligent or reckless, but not intentional, citing
Foust v. Magnum Restaurants, Inc.
(1994), 97 Ohio App.3d 451 , 646 N.E.2d 1150 . Burgos knew the safety boards were available, even though he was never told to use them to retrieve racks. “The injury to [plaintiff] was not substantially certain to occur because safety devices were available.” Id.
{¶ 62} Likewise, in the instant case, Kerg received on-the-job training and knew the keepers had to be placed on the mandrel. Even though at the time of the accident, she was not reminded to put the keepers on, she knew that this basic safety measure existed. Usually, she was reminded to do so, but to hold the employer liable for an intentional tort under these unexpected circumstances flies in the face of
Fyffe .
{¶ 63} Therefore, I respectfully dissent.