Gibson v. Drainage Products, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Gibson v. Drainage Products, Inc., 95 Ohio St.3d 171, 2002-Ohio-2008.]

GIBSON, ADMR., APPELLANT, v. DRAINAGE PRODUCTS, INC., APPELLEE.
[Cite as Gibson v. Drainage Products, Inc., 95 Ohio St.3d 171, 2002-Ohio-
2008.]
Employer and employee -- Requirements employee must satisfy in order to
prevail against employer for an intentional tort -- Fyffe v. Jeno's, Inc.,
applied -- Determining whether sufficient evidence exists to survive
employer's motion for a directed verdict.
(No. 2001-0588 -- Submitted February 6, 2002 -- Decided May 8, 2002.)
APPEAL from the Court of Appeals for Paulding County, No. 11-99-14, 2001-
Ohio-2110.
__________________

DOUGLAS, J.
{¶1} On February 21, 1996, Mike Gibson was an employee of appellee,
Drainage Products, Inc. On that day, Gibson suffered severe burns as a result of a
manufacturing accident that occurred at one of appellee's plants. Gibson died
three days later as a result of his injuries and complications.
{¶2} Appellee is a manufacturer of corrugated plastic drainage tubing.
As part of appellee's manufacturing process, raw plastic is placed into a machine
called an extruder, which heats the plastic, melting it into a malleable form.
Electric heaters located on the outside of the extruders are used to heat the plastic
to approximately five hundred degrees Fahrenheit in order to keep it malleable
and permit it to flow through the manufacturing line. Once the plastic is heated in
the extruder, it travels through a "screen changer" that removes dirt and debris
from the plastic. The plastic then passes into a die, where it is molded into a
circular pipe shape.

SUPREME COURT OF OHIO
{¶3} On the day in question, Timothy Jewell was working as an
operator on one of the extruder lines when he noticed that "hot molten" plastic
appeared to be leaking from the screen changer. In an effort to stop the leakage,
Jewell attempted to tighten bolts near the screen changer and in the process broke
some of the bolts. At that point, Jewell notified his foreman, John Meggitt, who
instructed Jewell to shut down the line so that the bolts could be replaced.
{¶4} Either Jewell or Meggitt then proceeded to repair the broken bolts
that held the pipes and screen changer together.1 At some point Jewell remained
at the work site and began to remove plastic residue that had accumulated around
the screen changer, while Meggitt left the work area to find replacement bolts.
{¶5} Prior to cleaning the plastic residue, Jewell separated the
manufacturing line at the screen changer. The extruder was shut down and the
electrical heaters in the area of the repair were turned off.2 Apparently, however,
the electric heaters surrounding the pipe leading into the die cast were left on.
These heaters were located approximately four to five feet from the electric
heaters in the area of the screen changer that had been deactivated.
{¶6} Gibson was working as a "mixer" on the day of his accident in an
area of appellee's plant approximately thirty-five to forty feet from where Jewell
was stationed. Gibson approached Jewell and asked whether Jewell needed any
help. Appellee's employees indicated that it was company policy for workers to
offer such assistance once assigned duties were completed. In fact, appellee's
safety director testified that employees were expected to check with a supervisor
for another assignment once assigned tasks were completed. Meggitt, who had
left the area of repair to obtain new bolts, was Gibson's supervisor.

1.
The testimony on this point is conflicting, as Jewell and Meggitt each testified that he had
removed the bolts.
2.
Once again the testimony of Jewell and Meggitt is at odds. While there is no dispute that
the extruder was shut down and the heaters were turned off in the vicinity of the repair, Jewell and
Meggitt disagree as to who actually performed this procedure.
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January Term, 2002
{¶7} Jewell declined Gibson's offer of assistance. At about the same
time, appellee's maintenance supervisor, Randy Bullinger, came upon the area of
repair. After a brief discussion with Jewell, Bullinger heard a hissing sound and
immediately yelled "watch out." Jewell, who testified that he heard a bang or
"popping" sound prior to the explosion, was able to drop to the floor. However,
Gibson, who was standing approximately three feet away from the open pipe, was
sprayed directly in the face, neck, and chest with hot molten plastic.
{¶8} Gibson was transported by ambulance to Van Wert Hospital and,
thereafter, transferred to Parkview Hospital in Fort Wayne, Indiana. While at
Parkview, Gibson was treated for first, second, and third degree burns. Gibson
also underwent a surgical procedure to remove the molten plastic material that
had adhered to his skin, primarily to his face. Gibson died three days after he was
admitted to Parkview.
{¶9} The Occupational Safety and Health Administration ("OSHA")
cited appellee for numerous violations related to Gibson's accident, including
appellee's failure to comply with its own written lockout/tagout safety program.
The lockout/tagout safety procedure is required during "the servicing and
maintenance of machines and equipment in which the unexpected energization or
start up of the machines or equipment, or [the] release of stored energy could
cause injury to employees." (Emphasis sic.) Section 1910.147(a)(1)(i), Title 29,
C.F.R. OSHA rules mandate that employers establish energy control
lockout/tagout procedures, including employee training and periodic inspections,
to ensure that before any employee performs any servicing or maintenance on a
machine or equipment that is subject to unexpectedly energizing, starting up, or
releasing stored energy, "the machine or equipment shall be isolated from the
energy source, and rendered inoperative." Section 1910.147(c)(1), Title 29,
C.F.R. Appellee had previously been cited by OSHA in 1994 for not having a
written lockout/tagout program.
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SUPREME COURT OF OHIO
{¶10} On January 21, 1997, Gibson's widow, appellant Susan R. Gibson,
individually and as administrator of the estate of Mike Gibson, and also as parent
and natural guardian of Kayla and Samantha Gibson, filed a complaint against
appellee and others in the Court of Common Pleas of Paulding County.3
Appellant's complaint alleged that appellee had committed an intentional tort
against Mike Gibson that resulted in his death. Appellant also alleged claims of
medical malpractice against Parkview Memorial Hospital and two Indiana
physicians who had treated Mike Gibson. Appellant's malpractice claims were
dismissed prior to trial due to a lack of personal jurisdiction over the Indiana
defendants.
{¶11} The matter proceeded to trial solely on the intentional tort claim
against appellee. Appellee moved for summary judgment contending, in part, that
appellant had failed to present evidence sufficient to establish intent according to
the "substantial certainty" test set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio
St.3d 115, 570 N.E.2d 1108, paragraphs one and two of the syllabus. By entry
dated April 27, 1998, the trial court overruled appellee's motion for summary
judgment.
{¶12} The matter proceeded to a jury trial on October 25, 1999. At the
close of appellant's case, appellee moved for a directed verdict pursuant to Civ.R.
50(A), again contending that appellant had not proven the necessary elements for
establishing an intentional tort as set forth in Fyffe. The trial court agreed and
granted appellee's motion for directed verdict. The trial court found that
appellant had failed to establish, as required by the second element of the Fyffe
test, that prior to the accident appellee knew of the existence of a dangerous

3.
Haviland Drainage Products, Inc., was originally named as a party defendant. Haviland
and appellee, Drainage Products, Inc., are separate but related companies. Mike Gibson worked
for Drainage Products, Inc., and an amended complaint was filed correcting this error.
4

January Term, 2002
process, procedure, equipment, or condition within its facility that was
substantially certain to cause harm to Mike Gibson or any other employee.
{¶13} Appellant appealed the trial court's ruling to the Paulding County
Court of Appeals. The court of appeals, in a split decision, affirmed the trial
court's judgment on different grounds. The court of appeals focused its attention
on the third element of the Fyffe test, which requires the employee to demonstrate
"that the employer, under such circumstances, and with such knowledge, did act
to require the employee to continue to perform the dangerous task." Id., 59 Ohio
St.3d 115, 570 N.E.2d 1108, at paragraph one of the syllabus. The court of
appeals determined, based on the evidence submitted, that appellant had failed to
raise even the inference that appellee had required Mike Gibson to continue to
perform any dangerous task. The court of appeals found appellant's remaining
evidentiary issues moot. Judge Shaw dissented, finding that appellant presented
sufficient evidence at trial to survive a motion for directed verdict in regard to all
three elements of the test set forth in Fyffe.
{¶14} This matter is now before this court upon the allowance of a
discretionary appeal.
{¶15} Appellant contends that the court of appeals erred in affirming the
directed verdict in appellee's favor. Appellant urges this court to find that an
injured employee can satisfy the third element of the Fyffe test if evidence is
submitted showing that the employer required the employee to be in the work
environment or vicinity where a dangerous process, procedure, condition, or
instrumentality is substantially certain to cause injury.
{¶16} The law setting forth the necessary elements and level of proof
required in order to demonstrate a workplace intentional tort is well established.
In Fyffe, 59 Ohio St.3d 115, 570 N.E.2d 1108, we modified and explained the
three-prong test originally set forth in Van Fossen v. Babcock & Wilcox Co.
(1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, that an
5

SUPREME COURT OF OHIO
employee must satisfy in order to prevail on a workplace intentional tort claim
against an employer. We held in Fyffe that "in 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 by the employer 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 (3) that the employer, under such circumstances, and with such
knowledge, did act to require the employee to continue to perform the dangerous
task." Id., 59 Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus.
{¶17} In paragraph two of the syllabus in Fyffe, we further outlined the
proof necessary to establish intent on the part of the employer when we stated that
"[t]o establish an intentional tort of an employer, proof beyond that required to
prove negligence and beyond that to prove recklessness must be established.
Where the employer acts despite his knowledge of some risk, his conduct may be
negligence. As the probability increases that particular consequences may follow,
then the employer's conduct may be characterized as recklessness. As the
probability that the consequences will follow further increases, and the employer
knows that injuries to employees are certain or substantially certain to result from
the process, procedure or condition and he still proceeds, he is treated by the law
as if he had in fact desired to produce the result. However, the mere knowledge
and appreciation of a risk--something short of substantial certainty--is not
intent."
{¶18} As previously noted, for reasons different from those relied upon
by the trial judge, a majority of the court of appeals found no error in the trial
court's decision to grant appellee's motion for directed verdict. The court of
appeals determined that appellant had failed to establish the third element of the
6

January Term, 2002
test set forth in Fyffe, and instead concluded that Mike Gibson had placed himself
in danger by choice and not as a requirement of employment. The court of
appeals concluded that there was no evidence from which the jury could have
inferred that appellee had required Mike Gibson to be in the area to offer
assistance with the problem. The court of appeals further found that there was no
evidence submitted that Gibson was in the area in search of his immediate
supervisor to obtain another assignment. We disagree.
{¶19} Civ.R. 50(A)(4) provides:
{¶20} "When a motion for a directed verdict has been properly made, and
the trial court, after construing the evidence most strongly in favor of the party
against whom the motion is directed, finds that upon any determinative issue
reasonable minds could come to but one conclusion upon the evidence submitted
and that conclusion is adverse to such party, the court shall sustain the motion and
direct a verdict for the moving party as to that issue."
{¶21} "By the same token, if there is substantial competent evidence to
support the party against whom the motion [for directed verdict] is made, upon
which evidence reasonable minds might reach different conclusions, the motion
must be denied. Kellerman v. J.S. Durig Co. (1964), 176 Ohio St. 320 [27 O.O.2d
241], 199 N.E.2d 562." Hawkins v. Ivy (1977), 50 Ohio St.2d 114, 115, 4 O.O.3d
243, 363 N.E.2d 367. As we stated in O'Day v. Webb (1972), 29 Ohio St.2d 215,
58 O.O.2d 424, 280 N.E.2d 896, "[i]t is the duty of a trial court to submit an
essential issue to the jury when there is sufficient evidence relating to that issue to
permit reasonable minds to reach different conclusions on that issue, or,
conversely, to withhold an essential issue from the jury when there is not
sufficient evidence relating to that issue to permit reasonable minds to reach
different conclusions on that issue." (Emphasis sic.) Id., paragraph four of the
syllabus. Moreover, the party against whom the motion is directed is entitled to
have the trial court construe the evidence in support of its claim as truthful, giving
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SUPREME COURT OF OHIO
it its most favorable interpretation, as well as having the benefit of all reasonable
inferences drawn from that evidence. Ruta v. Breckenridge-Remy Co. (1982), 69
Ohio St.2d 66, 68, 23 O.O.3d 115, 430 N.E.2d 935.
{¶22} Appellant introduced deposition and trial court testimony
indicating that it was company policy for employees, once their own assigned
duties were completed, to seek out additional work assignments and to assist
fellow employees in fulfilling other employment responsibilities. Timothy
Jewell, a former mixer and the operator of the extruder line that caused Gibson's
injuries, testified that if employees completed their work, the company expected
them to perform other duties and to help fellow employees complete job tasks.
Furthermore, Robert Hughes, appellee's safety director, testified by deposition
that on the date of the accident, Mike Gibson did nothing wrong to cause his
injuries.4 In addition, during his deposition Hughes indicated that it would not be
unusual for Gibson to complete his duties as a mixer and that, in those instances,
he would be expected to find other work. During his examination at trial, Hughes
reiterated that Mike Gibson was expected to seek other work once he completed
his mixing duties and, more important, Hughes testified that employees who had
completed assigned tasks were required to ask their supervisors for additional
assignments.
{¶23} In Hannah v. Dayton Power & Light Co. (1998), 82 Ohio St.3d
482, 696 N.E.2d 1044, we considered a situation analogous to the instant matter.
The employee in Hannah was a volunteer member of the employer's emergency

4.
We are aware that Hughes's trial testimony on this issue conflicts with his deposition
testimony and that appellant's trial counsel attempted to impeach the witness regarding this
discrepancy. However, in ruling on the propriety of a directed verdict, we are not permitted to
weigh the evidence. Ruta v. Breckenridge-Remy Co. (1982), 69 Ohio St.2d 66, 23 O.O.3d 115,
430 N.E.2d 935, paragraph one of the syllabus ("A motion for directed verdict does not present a
question of fact or raise factual issues, but instead presents a question of law, even though in
deciding such a motion it is necessary to review and consider the evidence"). In determining
whether sufficient evidence exists to survive a motion for directed verdict, our task is merely to
construe the evidence, as well as all reasonable inferences, in favor of the nonmoving party.
8

January Term, 2002
rescue squad who died while attempting to rescue fellow employees stranded
several hundred feet in the air on the platform of a nine-hundred-foot smokestack.
We held in Hannah that, according to the third element of the Fyffe test, the
employer did not have to expressly order the employee to engage in the dangerous
task that led to his death. Id. at 487, 696 N.E.2d 1044. Instead, we concluded
that, in an action alleging a workplace intentional tort, in order to overcome a
motion for summary judgment, an opposing party can satisfy this requirement by
presenting evidence that raises an inference that the employer, through its actions
and policies, required the employee to engage in the dangerous task. Id. In
Hannah, there was evidence that the rescue squad was composed entirely of
volunteers and that decedent had volunteered to perform the rescue.

Nevertheless, based upon testimony that the employer expected the rescue squad
to respond to the emergency and to do so in a safe manner, as well as other
evidence, we concluded that reasonable minds could differ as to whether the
employer required the employee to engage in the dangerous task. Id.
{¶24} While the issue in Hannah concerned the evidence necessary to
survive summary judgment in relation to the third element of Fyffe, the rationale
applied in Hannah is equally applicable to situations involving Civ.R. 50 motions
for directed verdict. See Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169,
172, 539 N.E.2d 1114, citing Pariseau v. Wedge Products, Inc. (1988), 36 Ohio
St.3d 124, 127, 522 N.E.2d 511. Thus, for purposes of surviving a motion for
directed verdict, it is not necessary for an employee to show that the employer
expressly ordered the employee to engage in the dangerous task. Instead, the
third element of the Fyffe test can be satisfied by presenting evidence that raises
an inference that the employer, through its actions and policies, required the
employee to engage in that dangerous task. Hannah, 82 Ohio St.3d at 487, 696
N.E.2d 1044. Moreover, Hannah was quite explicit in its determination that a
jury issue arises concerning the third element of the Fyffe test when sufficient
9

SUPREME COURT OF OHIO
credible evidence is presented that the employer merely expected the employee to
engage in a dangerous task. Id. In light of the foregoing, and after consideration
of the evidence submitted herein, we conclude that appellant presented sufficient
evidence to withstand appellee's motion for directed verdict.
{¶25} Construing the evidence and all reasonable inferences in favor of
appellant, we find that reasonable minds could differ in this matter as to whether
the employer required the employee to engage in a dangerous task. Clearly, a jury
could reasonably conclude that Mike Gibson was in the area of repair offering
assistance to Tim Jewell as he was expected to according to the terms and
conditions of employment or, alternatively, that Gibson had been in the area
attempting to locate his supervisor to obtain another assignment. As Judge Shaw
correctly noted in his dissent, either determination by a jury would satisfy the
appellant's burden on the third element of Fyffe.
{¶26} In so holding we necessarily reject the court of appeals' assertion
that the appellee's general expectation that its employees will inquire about and
perform work outside their primary duties "is not tantamount to a requirement
that Mike Gibson specifically assist in the repair of a manufacturing line without
the power to the entire line having been first shut down." (Emphasis sic.) There
is nothing in the language of the third element or in our prior case law that would
lead to the conclusion that appellee must specifically require Gibson to engage in
repair of the manufacturing line. The test set forth in Fyffe requires only that the
employer possess knowledge of a dangerous condition within its business and
knowledge that, if the employer exposes an employee to such dangerous
condition, then harm to the employee is substantially certain to occur. Fyffe, 59
Ohio St.3d 115, 570 N.E.2d 1108, paragraph one of the syllabus.
{¶27} In any event, the standard for establishing an intentional tort
"emerges not so much from the words used to formulate the test as it does from
the decisions rendered in response to specific fact situations. Such is the nature of
10

January Term, 2002
the common law." Kunkler v. Goodyear Tire & Rubber Co. (1988), 36 Ohio
St.3d 135, 139, 522 N.E.2d 477. With that in mind, cases involving workplace
intentional torts must be judged on the totality of the circumstances surrounding
each incident. Here, molten plastic was forcefully discharged from appellee's
manufacturing line and traveled a distance of approximately three to four feet
before it struck and severely burned Mike Gibson. Whether Gibson was
specifically requested to participate or was actually participating in the ongoing
repair of the extruder is not relevant to determining whether Mike Gibson was
required to perform a dangerous task. Rather, the primary concern is whether
appellee, through its policies and conditions of employment, placed Gibson in a
position where he was subjected to a "dangerous process, procedure,
instrumentality or condition" and harm was substantially certain to follow.
{¶28} Finally, we address appellee's apparent confusion regarding the
degree of knowledge required for the third element of the Fyffe test. Appellee
contends that there is no evidence in this case that appellee knowingly required
appellant's decedent to engage in a dangerous task. Not only is this argument
completely contrary to our holding in Hannah, it is also contrary to the very
foundation relied upon by this court in establishing workplace intentional tort
jurisprudence in this state. " `All consequences which the actor desires to bring
about are intended, as the word is used in [the] Restatement. Intent is not,
however, limited to consequences which are desired. If the actor knows that the
consequences are certain, or substantially certain, to result from his act, and still
goes ahead, he is treated by the law as if he had in fact desired to produce the
result.' " Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d at 115, 522 N.E.2d
489, quoting 1 Restatement of the Law 2d, Torts (1965) 15, Section 8A,
Comment b. In other words, appellee could be liable for the consequences of its
acts even though it never intended a specific result.
11

SUPREME COURT OF OHIO
{¶29} Accordingly, we hold that, in regard to the third element of the test
set forth in Fyffe, appellant has submitted sufficient, credible evidence to
overcome appellee's motion for directed verdict. A final determination regarding
the third element of Fyffe must, nevertheless, be left to a jury. However, because
the appellate court found appellant's remaining issues on appeal moot, this matter
must first be remanded to the court of appeals in order to address appellant's
remaining assignments of error, including whether appellant has presented
sufficient evidence to survive a motion for directed verdict in relation to the first
two elements of the Fyffe test.
{¶30} Accordingly, the judgment of the court of appeals is reversed, and
this cause is remanded to the court of appeals for further proceedings consistent
with this decision.
Judgment reversed
and cause remanded.
MOYER, C.J., RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK and LUNDBERG STRATTON, JJ., dissent.
__________________

COOK, J., dissenting.
{¶31} I cannot join the majority's departure from the test this court set
forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 570 N.E.2d 1108. Fyffe
refined this court's determination that an Ohio employee could recover damages
from his or her employer where the employer could be said to have intended to
injure the employee. Today's majority essentially obviates the third prong of
Fyffe. It does so by concluding that reasonable minds could find the required
performance of a dangerous task in an employer's general mandate that an
employee seek other work.
{¶32} Here, the plaintiff produced no evidence in her case-in-chief that
the employer assigned Gibson to perform a particular task. Without evidence of
12

January Term, 2002
that, there could be no proof that the employer knew that Gibson was substantially
certain to be harmed in "perform[ing] the dangerous task," as the third prong of
Fyffe prescribes. Thus, the trial court properly directed the verdict at the close of
the plaintiff's case. I would, accordingly, affirm the judgment of the court of
appeals upholding the directed verdict.

LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
__________________

Murray & Murray Co., L.P.A., W. Patrick Murray, William H. Bartle and
Steven C. Bechtel, for appellant.

Cook, Troth & Burkard, Ltd., Glenn H. Troth and Norman E. Cook, for
appellee.
__________________
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