Pariseau v. Wedge Products, Inc.

Holmes, J.,

concurring. The evidence presented in this case readily shows the difficulty that may arise in determining the existence of the so-called intentional tort claimed to have been committed by an employer against his employee. There is little room to doubt that we are here confronted, upon review of the trial court’s granting of a motion for judgment n.o.v., with testimonial evidence which, as accepted by the jurors, would establish conduct amounting to recklessness, which is well beyond mere negligence. However, there is a missing link in the proof necessary for the establishment of an intentional tort, a most necessary link, which is evidence that the employer had the required knowledge that the event was substantially certain to occur.

As we stated in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100 , 522 N.E. 2d 489 , at paragraph six of the syllabus: “To establish an intentional tort of an employer, proof beyond that required to prove negligence hnd beyond that to prove recklessness must be established. * * * However, the mere knowledge and appreciation of a risk — something short of a substantial certainty — is not intent.”

We guide our analysis of whether *130 entry of judgment n.o.v. was proper by paragraph five of the syllabus of Van Fossen, supra, which requires that: “* * * [I]n order to establish ‘intent’ for the purpose of proving the existence of an intentional tort committed by an employer against his employee, the following must be demonstrated: (1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowledge * * * 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 not just a high risk; and (3) that the employer * * * did act to require the employee to continue to perform the dangerous task.”

Therefore, we must first inquire whether there was evidence that a dangerous condition existed and that the employer knew of it. There was considerable testimony, set forth in nearly absolute terms, :that the 2/11 punch press at issue was known to “repeat” its cycle, which means that the ram descended at a time when the operator might ordinarily have his hand(s) within the breech for the purpose of removing the completed part. A former maintenance specialist testified that he informed the management orally and in writing that the machine repeated, and therefore jeopardized the hands of the operator. He recommended that particular safety systems be installed, which was not done. Employees testified that they and other employees had experienced instances of repeat ram strokes by the 2/11, that they were frightened of operating the machine, and would do so only when they could use a 2x4 inch piece of wood or a stick to remove the finished parts. There was corroborating testimony of one employee that she had operated the machine the very night of the accident, and had refused to operate it further after it began to repeat. Moreover, after informing the foreman of this situation, which all the employees testified to doing, and refusing to further operate the machine at issue, she observed the foreman assign appellee to the machine. Appellee testified that the foreman removed the 2x4 inch piece of wood from the area, refused to explain its use to him, and instructed him to use his hands to remove the parts. In other words, there was sufficient credible evidence which demonstrated that the foreman subjectively and specifically knew that, for whatever reason, the 2/11 punch press occasionally repeated.

Furthermore, the foreman and company knew that there was a considerable risk of serious harm even if its hand pullback safety devices were functional. There was testimony that, just two years prior to appellee’s injuries, one Verde Adams had lost three fingers from his hand when this very machine repeated, due to accidental jamming. The former maintenance specialist testified that he and other employees had to remove the pullback harness from Adams’ hand which was held within the pinch points, “because it [the pullback device] was pulling on him real hard * * There was, therefore, testimony that the company’s safety device had not protected employees in the past and that this was probably due to faulty adjustment of the safety device. Moreover, the foreman testified that he knew of that accident. 7

*131 The safety device, referred to as a Possons safety device, was connected by cables to the ram and individually adjusted to each machine operator. Ordinarily, it would automatically pull the operator’s hands out of the danger zone any time the ram descended. It was the employer’s contention that the bolt which held the cable to the ram had somehow sheared off, which resulted in the failure of the pullback device, and injury to appellee. This explanation was countered by a number of witnesses. Two employees stated that following the accident, the foreman sent them away from the machine at issue; that they observed him return to the area of the machine and heard him beating on it with something metallic; that afterward he emerged from the area with a broken bolt, asserting that its failure had resulted in the injuries. Later, the testifying expert asserted that the bolt was over three-quarters of an inch thick and, when properly connected, would not shear off from the pressures ordinarily applied to it, but would if it were struck repeatedly. Finally, and perhaps most crucially, testimony indicated that after the ram descended onto his hand, the pullback engaged and stretched his tendons between the pinch point where his fingers were trapped and the remaining part of his hand. By their interrogatory answers, the jurors clearly did not accept the sheared bolt explanation for the injury.

From the foregoing testimony, the jurors could correctly have found that the first and part of the third elements set forth in paragraph five of the syllabus of Van Fossen were met. There was evidence that the employer knew that the 2/11 punch press had a tendency to repeat, for whatever reasons, and that harm could result to an employee if it did repeat. The mere fact that the machine occasionally repeated is insufficient to demonstrate intent when the employer equipped the machine with safety devices. We are left to determine whether the employer assigned appellee to the task with knowledge that by subjecting him to the “dangerous process, procedure, instrumentality or condition, then harm to the employee * * * [would] be a substantial certainty and not just a high risk.”

To decide this issue, we must focus upon appellee’s core contention that the injuries resulted from the failure of the foreman to properly adjust the pullback safety device. There were several witnesses who testified that the foreman customarily failed to adjust the pullback harness in accordance with those procedures set forth in the instruction manual. This was appellee’s single theory to explain how his hand could remain in the danger zone while the ram descended on the repeat stroke. Thus, it is not the act of assigning appellee to the machine which would be the focal point, since there would be no expectation of harm to one wearing the pullback safety device. Instead, the mental element of this intentional tort must be found in the act of misadjusting the pullback device, or it is not to be found at all.

It might be argued at this point that the foreman knew to a substantial certainty that. if the safety devices were inadequately adjusted, plaintiff’s injury would be substantially certain to occur, given the foreman’s knowledge of the 2/11’s propensity to repeat. This, however, is too broad a statement for our purposes. Any employer, or employee, is aware that if a safety device fails, there is a substantial likelihood that the employee will be injured. To so construe our inquiry here would result in a transmutation of any degree of negligent act connected with the failure of a safety device into an inten *132 tional tort. This would occur because knowledge of the possible consequences, even to a near certainty, is not necessarily related to the underlying act at issue which, as in this instance, was negligence and, however gross, was not an intentional tort. The focus must therefore be more precisely upon the actor’s knowledge of all elements surrounding his misadjustment of the pullback devices in light of his background and available knowledge of the dangerous consequences that were substantially certain to occur in the use of this machine by this employee. We must inquire whether evidence existed that foreman Miller knew that his methods of adjustment of the pullback safety device would be inadequate and substantially certain to occasion the incident.

At the outset, it is observable that the pullback device was a safety device intended to guard against the very harm which occurred. Also, appellee’s own expert conceded that these devices were fully approved by both OSHA and the Ohio Industrial Commission. As to their use, the testifying employees allowed that the foreman did make adjustments to the harness for those employees who operated the 2/11. The specific evidence in the record before us shows that foreman Miller’s methods of adjusting safety harnesses, although not as recommended by the manufacturer’s manual, had ordinarily been sufficient to protect other employee press operators. There was no proof that any of his adjustments had resulted in, or were connected to, a previous injury on a punch press. 8 This is the key link in the evidence that is missing. Therefore, it cannot, as a matter of law, be inferred that Miller knew, to a substantial certainty, that what he was doing would injure this employee. At best, we observe a reckless disregard of a known safety procedure.

Consequently, the trial court was entirely justified in granting a judgment n.o.v. The interrogatories indicate that the jury was misled in its focus and, as we have concluded, there was not sufficient evidence that the employer acted with knowledge to a substantial certainty. Accordingly, I concur.

It must be made clear that the evidence shows that foreman Miller did not work at the plant at the time of that prior accident, and therefore obviously had not adjusted the pullbacks being used by Verde Adams.

Appellee proffered some evidence to the trial court to the effect that on other occasions, this foreman had made adjustments to pullback devices on machines other than the 2/11, which had resulted in amputations. The trial court disallowed this evidence although it was crucially on point for establishing the mental state of the foreman at the time in question. We note that appellee has not raised this as an issue at any stage of the appellate proceedings. It is accordingly waived.