Opinion
Nos. WD–11–066 WD–11–067.
2012-07-27
Celerina ZUNIGA, et al., Appellants v. NORPLAS INDUSTRIES, INC., et al., Appellees.
Kevin J. Boissoneault and Jonathan M. Ashton, Toledo, for appellants. David Rodman Cooper, for appellee Norplas Industries, Inc.
Kevin J. Boissoneault and Jonathan M. Ashton, Toledo, for appellants. David Rodman Cooper, for appellee Norplas Industries, Inc.
Laurie J. Avery, Toledo, for appellee H.R. Draper Industrial Services.
SINGER, P.J.
{¶ 1} Appellant appeals summary judgments issued against her by the Wood County Court of Common Pleas in a suit alleging employer intentional tort and a product liability claim against the manufacturer of a conveyer belt on which she was injured. Because the trial court properly concluded that a ventilator system installed, then removed, beneath a conveyor belt did not constitute an equipment safety guard, we affirm the court's judgment on the employer intentional tort claim. Because we conclude that the trial court improperly found the conveyor belt upon which appellant was injured was not a “product” within the meaning of product liability law, we reverse on that point.
{¶ 2} Appellee Norplas Industries, Inc. (“Norplas”) manufactures automobile bumpers in its plant in Northwood, Ohio. As a final step in the manufacturing process, the bumpers are conveyed to an inspection station where those units with imperfections are separated and sent, via conveyer belt, to stations for repair. Those with minor imperfections are sent to “finesse” stations to be sanded and buffed. Bumpers with more significant issues are sent to “rework” stations where more significant repair can be accomplished. In each case, the area of non-conformity is marked with a small piece of tape.
{¶ 3} On April 13, 2006, appellant, Celerina Zuniga , was working at the end of one of two rework conveyer belts. At a pause in the work, appellant took the opportunity to clean up her work area. In the process, she noted a piece of tape stuck to the moving conveyer belt. When she attempted to remove the tape from the belt, her right hand went over the end and was pulled into a pinch point where the belt met a roller on the underside, eight inches from the end of the conveyer. Before co-workers could stop the belt, appellant's hand was maimed and her arm and shoulder injured.
Celerina Zuniga's husband, Teofilo Zuniga, is also an appellant by virtue of a loss of consortium claim. For this decision, we shall refer to Celerina Zuniga as appellant.
{¶ 4} On April 11, 2008, appellant brought suit against Norplas, alleging an employer intentional tort which she asserted caused her injury. The complaint was subsequently amended to include as a defendant the manufacturer of the conveyer belt upon which she was injured, appellee H.R. Draper Industrial Services (“Draper”). Appellant alleged that Draper defectively designed and manufactured the conveyer belt and failed to provide adequate warning or instruction about the product.
{¶ 5} Both defendants denied liability and, following discovery, moved for summary judgment. Draper argued that, since its conveyer belt was custom designed for Norplas, it was not a “product” within the meaning of R.C. 2307.71(A)(12)(a)(ii) and, as a result, was not subject to strict liability under product liability law. Norplas insisted that to succeed on an employer intentional tort claim pursuant to R.C. 2745.01, appellant had to present evidence that the employer intended to harm her. Norplas maintained that appellant could present no such proof.
{¶ 6} Appellant responded with memoranda in opposition to the summary judgment motions, arguing with respect to appellee Draper that the customization for Norplas involved nothing more than matching Norplas' request for belts of a specific height and length. The process, appellant suggested, was no more than a customer might have in ordering accessories and trim on a new car.
{¶ 7} In response to Norplas' motion, appellant pointed to the installation of a ventilation system by Norplas beneath the conveyer belt at issue. This system effectively blocked access to the pinch point on which appellant was injured. When Norplas subsequently removed this system sometime later, according to appellant, Norplas deliberately removed an equipment safety guard, giving rise to a presumption that it had deliberate intent to injure its employee.
{¶ 8} In separate judgment entries, the trial court granted appellees' summary judgment motions. With respect to Norplas, the court ruled that for a device to be considered an “equipment safety guard” it must have been specifically designed as a safety feature. The evidence before the court showed that, although the ventilation system functioned to block access to the nip point on which appellant was injured, it was not designed for that function. Appellant presented no evidence that the ventilation system was designed to be anything other than a dust collection device. As a result, its removal did not constitute removal of an “equipment safety guard” and appellant was not entitled to a presumption that its removal demonstrated employer intent to injure. Alternatively, the court concluded, even if the presumption had arisen, Norplas had presented sufficient evidence that the reason for the ventilator's removal was that it was ineffective as a dust collection device, thus defeating the statutory presumption.
{¶ 9} Concerning appellee Draper, the court stated, “[b]ased on the evidence presented, the court finds that the conveyer system installed at Norplas was custom-made for Norplas by Draper.” Because the conveyer system Draper sold Norplas was custom designed it was not a “product” within the meaning of R.C. 2307.71(A)(12)(a)(ii) and not subject to the law of product liability, the court concluded.
{¶ 10} From these judgments, appellant brought separate appeals. We consolidated these appeals. Appellant sets forth the following two assignments of error:
I. The trial court erred where it granted summary judgment in favor of Appellee H.R. Draper Industrial Services.
II. The trial court erred where it granted summary judgment in favor of appellee Norplas Industries, Inc.
{¶ 11} Appellate review of a summary judgment is de novo, Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) 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, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 12} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact. Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A “material” fact is one which would affect the outcome of the suit under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733 N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826, 675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
{¶ 13} We shall discuss appellant's assignments of error in reverse order.
I. Employer Intentional Tort
{¶ 14} Workplace injuries are ordinarily compensated by the workers' compensation system. In Ohio, employers pay into a state fund out of which employees who are injured in the course and scope of their employment receive remuneration irrespective of fault. Fulton, Ohio Workers' Compensation Law, Section 1.2, at 4–5 (4th Ed. 2011). To participate in the fund, employees are deemed to have waived their right to sue their employer in negligence. Id., Section 1.5, at 8. For the vast majority of workplace injuries, a workers' compensation claim is an employee's exclusive remedy. Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100, 110, 522 N.E.2d 489 (1988).
{¶ 15} An exception to this rule of exclusivity occurs when an employer's conduct goes beyond mere negligence or even wanton behavior. When an employer's act or omission in a workplace constitutes an intent to injure the worker, such an act or omission is considered to have occurred outside the employment relationship and the employee may seek redress in a suit on the intentional tort. Brady v. Safety–Kleen Corp., 61 Ohio St.3d 624, 576 N.E.2d 722 (1991), paragraph one of the syllabus. The exact nature of this exception has been the subject of legislative and judicial attention since the beginning of workers' compensation. See Kaminski v. Metal & Wire Prods., 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 21–45.
{¶ 16} The most recent pronouncement on this topic was the enactment of R.C. 2745.01, effective April 7, 2005. In material part, the statute provides:
(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.
(C) Deliberate removal by an employer of an equipment safety guard * * * creates a rebuttable presumption that the removal * * * was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result. * * *.
{¶ 17} The constitutionality of R.C. 2745.01 has been challenged in this case and elsewhere, but the statute has been held not to violate the Ohio Constitution, Article II, Section 34 or 35, Kaminski at the syllabus, nor does it violate Ohio's constitutional right-by-jury provision (Article I, Section 5), the right-to-a-remedy or open-courts provisions (Article I, Section 16), the equal protection provision (Article I, Section 2), or the separation-of-powers doctrine. Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, paragraph one of the syllabus. Consequently, R.C. 2745.01 is the law applicable to appellant's employer intentional tort claim.
{¶ 18} In order to withstand a motion for summary judgment on this claim, appellant must present suitable evidence that Norplas deliberately removed an equipment safety guard. Appellant insists it is unrefuted that Norplas installed, then removed, a ventilation system that effectively blocked access to the nip point on which she was injured. Since the ventilation system would have prevented appellant's injury had it remained in place, appellant maintains that it served as an equipment safety guard and its removal satisfies R.C. 2745.01(C), or at least creates a question fact as to whether the statute has been met.
{¶ 19} Norplas responds that the ventilation system was a ventilation system. It was not part of the original conveyer system and was installed, not to prevent injury, but to collect dust. It was removed not to injure employees, but because it did not work as a dust collector. Norplas insists that the evidence of the reason for the ventilator system's removal is unrefuted and is sufficient to rebut the statutory presumption, if indeed any such presumption ever arose.
{¶ 20} Once a statutory presumption of employer intent to injure is established, rebuttal of that presumption necessarily involves some weighing of evidence. This would preclude summary judgment on such an issue because weighing evidence or choosing among reasonable inferences is not permissible in a summary judgment analysis. Bickham v. Standley, 183 Ohio App.3d 422, 2009-Ohio-3530, 917 N.E.2d 330, ¶ 7 (3d Dist.).
{¶ 21} At issue is whether there was sufficient evidence before the court to establish that Norplas deliberately removed an equipment safety guard, establishing the presumption. It is undisputed that Norplas installed, then removed, the ventilator system at the base of the rework conveyer belt. Neither party disputes that the ventilator was removed.
{¶ 22} As to whether the ventilator system was an “equipment safety guard,” as we have noted the legislature does not define this term. McKinney v. CSP of Ohio, L.L.C., 6th Dist. No. WD–10–070, 2011-Ohio-3116, 2011 WL 2535606, ¶ 14. Applying ordinary rules of construction, we have construed the phrase as follows:
“Guard” is defined as “a protective or safety device; specif.: a device for protecting a machine part or the operator of a machine.” MerriamWebster's Collegiate Dictionary (10 Ed. 1996) 516. “Safety” means “the condition of being safe from undergoing or causing hurt, injury, or loss.” Id. at 1027. “Equipment” is defined as “the implements used in an operation or activity: APPARATUS.” Id. at 392. 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. “Protect” means “to cover or shield from exposure, injury or destruction: GUARD.” Id. at 935. “Safe” is defined as “free from harm or risk” and “secure from threat or danger, harm, or loss.” Id. at 1027. McKinney at ¶ 18.
{¶ 23} In conformity with these definitions, we have held that “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.” Fickle v. Conversion Techs. Internatl., Inc., 6th Dist. No. WM–10–016, 2011-Ohio-2960, 2011 WL 2436750, ¶ 43.Accord Abrams v. Dept. of Rehab. & Corr., Ct. of Cl. No. 2006–04679, 2010-Ohio-1530, 2010 WL 1415473.
{¶ 24} While the ventilation system may have had the effect of shielding the conveyor nip point, appellant has presented no evidence that it was designed for that purpose. Neither was there any evidence presented that the ventilation system was adopted as a de facto shield for the nip point at any time. Absent such evidence, we must concur with the trial court that the ventilation system was not an “equipment safety guard” within the meaning of the statute. Accordingly, appellant's second assignment of error is not well-taken.
II. Product Liability
{¶ 25} The manufacturer of a product is liable in damages to one injured by that product if (1) the injured establishes by a preponderance of the evidence that the product was defective in manufacture, construction, design, formulation, or was defective due to inadequate warning, instruction or not in conformity with the representation of its manufacturer; (2) the defect was the proximate cause of the claimant's injury; and (3) the manufacturer designed, formulated, produced, constructed, created, assembled, or rebuilt the actual product that was the cause of harm. R.C. 2307.73(A). The law defines a “product” as:
* * * any object, substance, mixture, or raw material that constitutes tangible personal property and that satisfies all of the following:
(i) It is capable of delivery itself, or as an assembled whole in a mixed or combined state, or as a component or ingredient.
(ii) It is produced, manufactured, or supplied for introduction into trade or commerce.
(iii) It is intended for sale or lease to persons for commercial or personal use. R.C. 2307.71(A)(12)(a).
{¶ 26} Appellee Draper concedes that the conveyor belts it sold to Norplas were objects capable of delivery and intended for sale to persons for commercial use. Draper argues, and the trial court concluded, that the conveyor belts at Norplas, however, were not manufactured for introduction into trade or commerce and were, therefore, not “products” within the scope of the law.
{¶ 27} Appellee Draper and the trial court relied on this court's decision in Estep v. Rieter Auto. N. Am., 148 Ohio App.3d 546, 2002-Ohio-3411, 774 N.E.2d 323 (6th Dist.). There we held that “[a] product which is custom-made at the express request and design of the purchaser and which is not launched into the stream of commerce to consumers is not a ‘product’ for purposes of imposing strict liability upon the maker.” Id. at ¶ 43.
{¶ 28} Although Estep concerned claims arising after the enactment of statutory product liability, R.C. 2307.71, et seq., on this point the case borrows from the reasoning articulated prior to its enactment. Estep at ¶ 43, fn. 1. This court found instructive the reasoning in Queen City Terminals v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 653 N.E.2d 661 (1995), which in turn relied on the product liability analysis articulated in the 2 Restatement of the Law 2d, Torts, Section 402(A) (1965). Id.
{¶ 29} In Queen City, the owner of a river and rail terminal in Cincinnati obtained a contract to transport a chemical from a Lima, Ohio refinery by rail. The refiner contracted with General American Transportation Corporation (“GATX”) to lease a multiple car proprietary “TankTrain.” GATX subcontracted with another company to build the TankTrain using GATX's designs and patents. GATX wanted to add a washout port to the cars to make them more marketable after the lease and asked the subcontractor to design and install these ports.
{¶ 30} On the train's maiden trip eight of the train's 36 cars leaked toxic chemicals into the environment due to poor design and installation of the washout ports. Damages resulted. The refiner and terminal owner sued GATX and its subcontractor for, among other things, product liability. Although the refiner and terminal owner prevailed on other claims, the trial court directed a verdict against them on the product liability claim. GATX settled after judgment, but the matter went to appeal on the subcontractor's challenge of the verdict against it and the terminal owner and refiner's cross-claim on the directed verdict. The intermediate appellate court ruled in favor of the refiner and terminal owner on both issues. Queen City Terminals at 613, 653 N.E.2d 661.
{¶ 31} On the issue of the applicability of product liability to the case, the Ohio Supreme Court reversed the intermediate appellate court, concluding that the trial court had properly rendered a directed verdict on that claim. The court noted that the policy reasons for strict liability in such cases were to promote product safety, place the burden of accidental injuries caused by products intended for consumption on those who market them and provide consumers with a degree of protection from a manufacturer who launches a product into the stream of commerce, none of which applied on these facts. Id. at 621, 653 N.E.2d 661.
{¶ 32} According to the court, “the product here was coaxed into the market by its consumers. [The subcontractor] did not launch this product into the stream of commerce. This was a custom-made order, fashioned expressly at the request of GATX.” Id. at 622, 653 N.E.2d 661. The court concluded with a caveat:
This holding is not meant to be a panacea for all manufacturers of defective products, but is instead intended to address the rare factual circumstance where the purchaser and lessee of a product are heavily involved in the manufacturing process of the defective item. Id. at 623, 653 N.E.2d 661.
{¶ 33} Even after the enactment of statutory product liability, in Estep, supra, we looked to the reasoning employed in Queen City to determine whether production equipment installed in a work setting was a “product” within the meaning of R.C. 2307.71. Estep was a production worker at Rieter Automotive. In 1997, Rieter converted from one type of production line to another.
This conversion required the installation of new machinery, including a combination pinch roller and shear press machine. To accomplish the conversion, Rieter hired AHM to manufacture the pinch roller machine according to certain size specifications. The shear machine was manufactured by Alfa Machine Company and was sent to AHM who then incorporated it into the pinch roller machine design. Once at the Rieter's factory, IPS installed the electrical systems necessary for the operation of the combined pinch roller/shear machine. Other companies not pertinent to the issues on appeal were also involved in developing the physical setting and computer controls for the barrier line. Estep at ¶ 3.
{¶ 34} Estep was injured on the equipment that had been installed. In 1998, he sued Rieter, for employer intentional tort, and the numerous companies involved in putting together the new production line on a product liability claim. The trial court granted summary judgment to the defendants on all counts.
{¶ 35} On review of the product liability branch of the appeal, we noted that the pinch roller
was a custom-made unit, designed primarily by Rieter. IPS, an electrical contractor, installed various components and wiring which were created specifically for this unit. Likewise, Helm and Lumm, were involved with the construction of the guards which were also ordered by Rieter. None of these parties were engaged in the business of constructing the particular components installed. Rather, they were contacted to perform specific custom services on the machinery designed and ordered by Rieter. Id. at ¶ 44.
We concluded that, based on these facts, none of the parties were either manufacturers or suppliers of a “product” within the definition of R.C. 2307.71(A)(12). Estep at ¶ 44.
{¶ 36} Applying the analytic framework of Queen City and Estep, we look to the deposition testimony of appellee Draper's principal, Henry Draper. Henry Draper describes a prior relationship with some of the managers of Norplas at an Ontario, Canada plant at which Draper had installed a conveyer system. When those managers, now at Norplas, decided that they needed a conveyer system for Norplas, they contacted Draper. According to Henry Draper, Norplas provided specifications for the conveyor belt's length, height, width, speed and sequencing. Draper insists that all of his installations are custom-designed. With respect to safety features, or lack thereof, Draper states that, as a Canadian, he is unfamiliar with American safety requirements and relied on Norplas to indicate the safety features that were necessary.
{¶ 37} Henry Draper's assertion that all of his products are custom-designed is self-serving.
{¶ 38} Large commercial entities are consumers and the goods they consume can be the basis of product liability claims against the manufacturer of such goods. Queen City, supra, at 620, 653 N.E.2d 661. Appellee Draper, according to its letterhead, is in the business of designing and building machinery. It had sold at least one conveyor belt system prior to the system at issue, so it cannot be said that the product was “coaxed into the market” by Norplas. Neither was Norplas operating as some sort of general contractor, micromanaging multiple subcontractors to produce a product of its own vision. Norplas told Draper what it wanted and Draper supplied it. There is nothing in the record to suggest that any part of the finished product was novel or invented for the occasion. The impression is that Draper configured off-the-shelf items to meet its customer's needs. This is as it should be, but it does not place this product in the “rare circumstance” in which a purchaser's involvement in the design or manufacture of a product is so integrated as to deem the result outside the definition of a product. Consequently, we conclude that the conveyor system on which appellant was injured is a product within the meaning of R.C. 2307.71(A)(12). Accordingly, appellant's first assignment of error is well-taken.
{¶ 39} On consideration whereof, the judgment of the Wood County Court of Common Pleas is affirmed, in part, and reversed, in part. This matter is remanded to said court for further proceedings on the product liability aspect of the case. It is ordered that the costs of this appeal, pursuant to App.R. 24, are to be divided equally between appellant and appellee Draper.
Judgment affirmed, in part, and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
ARLENE SINGER, P.J., PETER M. HANDWORK and STEPHEN A. YARBROUGH, JJ., concur.