Document mmK2w1pEzMyDKjYQwbXy98gGg

IN THE COURT OF COMMON PLEAS LAKE COUNTY, OHIO URL 23231 Ruth N. Bumheimer, etc., Plaintiff, v. Uniroyal Chemical Company, Inc., et al., Defendants. ) Case No. 93 CV 001758 ) Judge Martin O. Parks ) NOTICE OF SUPPLEMENTAL AUTHORITY OF DEFENDANT ) UNIROYAL CHEMICAL COMPANY. INC. ) Robert A. Bunda (0019775) ) Anne Y. Koester (0040609) ) BUNDA, STUTZ & DEWITT One SeaGaie, Suite 650 ) Toledo, OH 43604 Telephone: (419)247-2777 ) Telecopy: (419) 247-2727 ) Trial Counsel for Defendant Uniroyal Chemical Company, Inc. ) In further support of defendant Uniroyal Chemical Company, Inc.'s Motion for ( Summary Judgment, Uniroyal hereby gives notice of the recent decision of the Court of Appeals of Ohio, Summit County in Lucas v. R.C.A. Rubber Co. (1994), 93 Ohio App. 3d 389, attached hereto as Exhibit A. I Of significance in the Lucas court's opinion is the court of appeals' recognition that the plaintiff who is claiming his employer is liable for an intentional tort must demonstrate that the employer had "`"actual knowledge of the exact dangers which ultimately caused injury."*'* Id. at 391, citing Ortiz v. Elyria Foundry Co. (Oct. 21, 1992), Lorain App. No. 5302, unreported, at 5, 1992 WL 308556, quoting Sanek v. Duracote Corp. (1989), 43 Ohio St. 3d 169, 172. In Lucas, the trial court granted the defendant employer's motion for summary judgment, which was affirmed by the court of appeals. Uniroyal requests that the court's decision in Luca* be considered by this Court in ruling on Uniroyal's pending motion for summary judgment. Resoectfullv submitted. Of Counsel for Defendant Uniroyal Chemical Company, Inc.: BUNDA, STUTZ & DEWITT One SeaGate, Suite 650 Toledo, Ohio 43604 BUNDA, STUTZ & DEWITT One SeaGate, Suite 650 Toledo, Ohio 43604 Telephone: (419) 247-2777 Telecopy: (419)247-2727 Attorney for Defendant Uniroyal Chemical Company, Inc. 2 URL 23233 CERTIFICATE OF SERVICE This is to certify that a copy of the Notice of Supplemental Authority ofDefendant Uniroyal Chemical Company, Inc. was mailed this ^;y of September, 1994, to Peter J. Brodhead, Esq., attorney for plaintiff, at his office located at Spangenberg, Shibley, Traci, Lancione & Liber, 2400 National City Bank Building, Cleveland, Ohio 44114, and Victoria L. Vance, Esq., attorney for defendants, Borden, Inc. and Monochem, Inc., at her office located at Arter & Hadden, 1100 Huntington Building, Cleveland, Ohio 44115-1475. 3 \ ,1 LUCAS v. R.CJL RUBBER CO. 391 390 LUCAS V. R.CJL RUBBER CO. ' Cite** (!**), M OUo AppJrf 319 Clteu *3 Ohio App-W )S* i "The trial court erred and abused its discretion in granting defendant-appel Administration (OSHA) citation following accident; employer had used procedure lee's motion for summary judgment because: in past without incident, fact that procedure was not safest or even correct procedure did not negate fact that employer was not on notice of any problems with procedure prior to accident, and employee did not use procedure as "1. Reasonable minds could come to different conclusions based on the parties' affidavits. instructed in that he used one pipe instead of two to support elevator. "2. It weighed the evidence in reaching its decision. 3. Workers' Compensation *2093 In order to show that employer had knowledge that procedure used by employee was substantially certain to cause harm to employee, as required to prove that employer committed intentional tort against employee, employee is required to demonstrate that employer had actual knowledge of exact dangers which ultimately caused injury. "3. It totally disallowed the potential probative effect of circumstantial evi dence. "4. It determined the credibility of competing affidavits attached to the parties' summary judgment pleadings." Appellant argues that a material Issue of fact existed as to whether R.C.A. committed an intentional tort against Lucas, and that summary judgment was, therefore, inappropriate. Walter Vogel and Daniel Wilson, for appellant [1,2) In order to prove that an intentional tort was committed against an John Solomon, for appellee. employee, the employee must prove: " *(1) knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; (2) knowl Baird. Judge. edge by the employer that if the employee is subjected by his employment to This cause was heard upon the appeal of Maria I. Lucas, executor of the estate such dangerous process, procedure, instrumentality or condition, then harm to of John Lucas, from a judgment in the Summit County Court of Common Pleas the employee will be a substantial certainty; and (3) that the employer, under granting summary judgment to R.C.A. Rubber Company ("R.C.A."). We affirm. such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task" Fyffe u Jeno's, Inc. (1991), 59 Ohio On November 4, 1989, John Lucas was killed when the elevator which he was St.3d 115, 670 N.E.2d 1108, paragraph one of the syllabus. repairing fell and crushed him. At the time, Lucas was employed by R.C.A. His supervisor, John Spinks, instructed Lucas and another employee, Warner Shears, The Supreme Court of Ohio has explained that the burden is upon the plaintiff to repair the chevron packing on a hydraulic elevator which operated between the to establish these elements by proof beyond that required to prove negligence first two floors of the plant Spinks told the two men that, in order to repair the and beyond that necessary to prove recklessness. Id. at paragraph two of the elevator, it would have to be supported with two Bteel pipes. This procedure had syllabus; Brady v. Safety-Kleen Corp. (1991), 61 Ohio St3d 624, 631, 576 N.E.2d been used in the past to support the elevator for repair. Despite this fact, when I 722, 727. Appellant has not shown that R.CA. had the requisite knowledge that Lucas went to retrieve the pipes, he took only one, insisting to his co-worker that harm to its employee was substantially certain to occur in using the procedure one pipe would provide sufficient support which it instructed Lucas to use in fixing the elevator. The elevator was lowered onto the one pipe, and the power to the elevator was [3] In order to show that R.CA. had knowledge that the procedure used by turned ofT. Lucas entered the elevator pit and began the repair. The supporting . Lucas was substantially certain to cause harm to its employee, Lucas would be pipe began to bend, and the elevator came down on Lucas. * required to demonstrate that R.C.A. had " `actual knowledge of the exact dangers Lucas' estate filed suit against R.CA, alleging that R.C.A. had committed an intentional tort against Lucas. R.C.A. moved for summary judgment, which was granted by the trial court which ultimately caused injury."' Ortiz v. Elyria Foundry Co. (Oct. 21, 1992), Lorain App. No. 5302, unreported, at 5, 1992 WL 308556, quoting Sanek v. Duracote Corp. (1989), 43 Ohio St3d 169, 172, 539 N.E.2d 1114, 1116. The evidence set forth in opposition to the motion for summary judgment docs not It is from this judgment that the executor of Lucas' estate appeals, asserting a show this actual knowledge by R.C.A. R.C.A. had used the procedure which single assignment of error: vzzzz nan