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Summit County employer intentional tort claim reversed
TRACEY BLAIR
Legal News Reporter
Published: April 9, 2019
A Summit County trial court erred by granting a motion to dismiss an employer intentional tort claim that was filed by a man who was injured when an injection molding machine crushed his left hand, according to the 9th District Court of Appeals.
Plaintiff Brian J. McAllister was injured on April 3, 2014, while working as an employee of defendant-appellee Myers Industries, Inc. He filed suit in October 2017 against Myers Industries, Filter Specialties Inc. and Bill Hartwick, who performed work on the machine at issue about two months before the incident.
In addition to the tort claim, McAllister sued Filter Specialties for negligence and filed a claim for punitive damages against Hartwick.
The trial court granted Myers’ motion to dismiss on the grounds that McAllister failed to provide “specific facts showing that Myers intended to injure (McAllister), Myers believed it was substantially certain that (McAllister) would be injured or that Myers deliberately removed a safety guard.”
In his complaint, McAllister alleged his hand was crushed because Myers made the conscious and deliberate decision to continue to run the injection mold machine without an important safety guard it originally came with and to expose its employees to the dangerous safety condition that decision created.
On Feb. 5, 2014, Hartwick told management at Myers Industries there was a part on the machine that was worn out and needed replaced. But rather than shutting down the machine until the replacement part arrived and was installed, Myders told Hartwick to change the wiring system to keep the machine running, according to the suit.
Because of that decision, McAllister said he suffered serious permanent injuries, including a partial hand amputation, substantial medical expenses, lost wages, disfigurement, pain and suffering and mental anguish.
On appeal, Myers argued the plaintiff failed to identify how the “interlocked safety guard” met the definition of a safety guard in Ohio case law.
However, the appellate court disagreed.
“Myers Industries, Inc. has not pointed to a case requiring that, in order to survive a motion to dismiss, a plaintiff must not only identify a safety guard at issue, but also explain the workings of the safety guard so as to demonstrate that it meets the definition of a safety guard in Ohio case law,” 9th District Judge Donna J. Carr wrote in her majority opinion. “Essentially, it appears that it is Myers Industries, Inc.’s belief that Mr. McAllister had to prove much of his case at the pleadings stage.”
The appellate panel also concluded that McAllister’s allegations were sufficient to allege the company deliberately removed a safety guard.
Myers also argued the tort claim was barred by the statute of limitations. However, the panel declined to consider that issue since the trial court had not yet considered the merits of it.
Hartwick and Filter Specialties filed a motion for summary judgment based on the statute of limitations, which was also granted by the trial court.
“Specifically, Mr. McAllister argues that the statute of limitations was tolled pursuant to R.C. 2305.15 and that it did not begin to run until Mr. Hartwick’s and Filter Specialties Co.’s identities were discovered,” Judge Carr wrote. “However, we sustain Mr. McAllister’s assignment of error because Mr. Hardwick and Filter Specialties Co. failed to meet their initial summary judgment burden on the issue of the statute of limitations.”
Judge Carr added that the trial court took judicial notice of the proceedings in a prior case that was voluntarily dismissed.
“This was improper,” she said in her opinion, noting that it is well established that trial courts will not take judicial notice of their own proceedings in other cases – even between the same parties.
“Accordingly, the trial court erred in relying on evidence outside the record in determining summary judgment was appropriate,” Judge Carr stated. “Further, because Mr. Hartwick and Filter Specialties Co. failed to present evidence to establish their entitlement to summary judgment on the basis of the statute of limitations, the trial court erred in granting summary judgment on that basis.”
The case was reversed and remanded. Appellate judges Julie Schafer and Lynne Callahan concurred.
The case is cited McAllister v. Myers Industries, 2019-Ohio-773.