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Cook v. Cleveland Electric Illuminating Co.

March 30, 1995


CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 229,048

The opinion of the court was delivered by: Donald C. Nugent, J.



This is an appeal from a grant of summary judgment by the Cuyahoga County Court of Common Pleas on the intentional tort and loss of consortium claims of plaintiffs-appellants Ed Cook and Denise Cook arising out of an electrical shock and explosion suffered by Ed Cook while he was in the employment of defendant-appellee Schloss Paving, Inc.*fn1 In his amended complaint, appellant Ed Cook alleges that appellee Schloss Paving knew harm was substantially certain to result because appellant was required to work in an electrical equipment room that had been "wired by a non-licensed and unqualified worker and which it knew was wired contrary to standards outlined in the National Electric Code Guidelines."

The following relevant facts are derived from the evidence adduced by the parties upon discovery. This evidence consisted of affidavits, depositions, photographs and expert investigation reports in support of, and in opposition to, appellee's motion for summary judgment.

Appellee, Schloss Paving Inc., is a paving contractor. On the morning of July 2, 1991, appellant was working as a "bin man" in the course and scope of his employment with appellee. As part of his regular job duties, appellant was required to operate the power transfer system at the end of his shift. Due to rising electricity costs from CEI, appellee introduced an on-site generator (Gen Set) to fulfill the needs of the plant during normal plant hours. The power transfer system at appellee's plant was designed and installed by the plant superintendent, Thomas Thompson, in 1987 or 1988. During night hours, when the electrical demand for the plant was low, the power was switched to CEI power by turning off the generator and then switching the power supply to CEI service.

The power transfer system was housed in a block house. Next to the block house was the on-site generator. The transfer system was designed to switch the power at appellee's plant from the on-site generator to the outside power lines of CEI. CEI supplied power to the plant through a service drop within the block house. Two parallel disconnect switches, an 800 amp fused disconnect and a 100 amp fused disconnect, received power from the service drop. Another 800 amp disconnect switch in the block house received power from the on-site generator. The transfer of the two power sources had to be done manually. Absent from the system was a transfer switch between the CEI and the on-site generator power sources to insure that there could not be a simultaneous connection of the two sources of power.

Appellant began operating appellee's power transfer system as a normal part of his duties during the summer of 1991. Appellant has a tenth-grade education and no previous electrical training, although he had worked around electrical lines in some of his previous work as a tree cutter. Appellant was instructed as to the procedure of properly operating the transfer system by Mr. Thompson and fellow worker Mr. Hanzel. Before the accident, appellant had operated the transfer system numerous times without any incident.

In the early morning hours of July 2, 1991, appellant went into the block house to execute the power transfer. Appellant threw the switch to turn off the generator from a "nine o'clock position to a six o'clock position." (This was the same procedure he had used to switch the power in the past.) After throwing this switch, appellant went over to the small CEI box and turned it on. At that moment, the transfer system exploded and the entire block house caught on fire. As a result of the explosion, appellant suffered burns to his right knee, face, arm and hand. Appellant also suffered serious injuries to his back as well as to his nervous system.

On March 18, 1992, appellant brought suit against CEI, alleging that CEI was negligent in the inspection, service and maintenance of the transfer system at Schloss Paving. On October 6, 1992, appellant filed an amended complaint, alleging an intentional tort against Schloss Paving.

On December 30, 1993, after all parties had extensively deposed numerous witnesses, appellee Schloss Paving filed its motion for summary judgment with the trial court. On February 24, 1994, appellant filed his motion in opposition to summary judgment alleging, inter alia, that appellee had full knowledge of the hazardous condition of the power transfer system yet intentionally required appellant to utilize the hazardous procedure.

On April 15, 1994, the trial court issued its ruling and opinion granting appellee Schloss Paving summary judgment. The trial court opined that there was "no evidence that the apparent cause of malfunction -- failure of the switch to move to the proper position when plaintiff moved it -- had ever occurred before or that defendant had knowledge that such malfunction was likely." Therefore, the trial court held that the "plaintiff has not presented evidence that defendant had knowledge of a substantial certainty of injury to the employees."

From the trial court's adverse ruling, appellant brought the present appeal. Appellant's sole assignment of error provides:


A motion for summary judgment shall only be granted by a trial court when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Summary judgment shall not be granted unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion is made. In reviewing a motion for summary judgment, the inferences to be drawn from the underlying facts must be viewed in a light most favorable to the party opposing the motion. Temple United, Inc. v. Wean (1977), 50 Ohio St.2d 317.

In a motion for summary judgment brought pursuant to Civ.R. 56, the burden of establishing that material facts are not in dispute and that no genuine issue of facts exists is on the party moving for summary judgment. Harless v. Willis Day Warehousing (1978), 54 Ohio St.2d 64. However, in that Civ.R. 56(E) requires that a party set forth specific facts showing that there is a genuine issue for trial, such party must so perform if he is to avoid summary judgment. Accordingly, in an action by an employee against the employer, the employee must set forth specific facts which show that there is a genuine issue of whether the employer had committed an intentional tort against the employee. Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 117.

In the present case, the trial court held that appellant, Ed Cook, failed to meet the burden of Civ.R. 56(E) in attempting to prove the requisite action required for a claim of intentional tort. Appellant seeks this court's review of the trial court's decision. An appellate court's review of a finding of summary judgment is a de novo review. We will consider the facts and evidence properly presented by the parties to determine if there are genuine issues of material fact upon which reasonable minds could differ. Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. If this court determines that there exist genuine issues of material fact, then we will reverse the judgment of the trial court and remand the case for further proceedings.

The present case arose from an injury which occurred while the appellant was in the course and scope of his employment with appellee. However, this case does not fall within the "no fault" confines of the Ohio Workers' Compensation Statute of R.C. 4123.01, et seq. Rather, this case represents a claim for an intentional tort by an employer which removes the case from the protective confines of the Workers' Compensation Statute. See, Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608.

The standard by which an employee must establish an intentional tort of an employer is set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115. Therein, the Ohio Supreme Court established a three-prong test as follows:

Within the purview of Section 8(A) of the Restatement of the Law 2d, Torts, and Section 8 of Prosser & Keeton on Torts (5 Ed. 1984), 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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.) Id., paragraph one of the syllabus.

Further, the court described the requisite intent of an employer in the following manner:

To 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. (Van Fossen v. Babcock & Wilcox Co. [1988], 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph five of the syllabus, modified as set forth above and explained.) Id., paragraph one of the syllabus.

Therefore, we must now determine whether the evidence submitted by the parties raises genuine issues of material fact upon which reasonable minds could come to different conclusions concerning whether appellee's conduct established an intentional tort under the three prong test set forth in Fyffe, supra.

The initial inquiry must begin with the condition, design and sufficiency of the transfer system. Appellant claims that the transfer system, by its very nature, was a hazard for anyone who had to operate the system. In response to this contention, appellee argues that in its three years of operation, there were no prior accidents or problems with the transfer system and that no one had knowledge it represented a dangerous process or condition. Therefore, appellee argues, it was impossible for appellee to have intended any harm to appellant.

However, appellant claims that the entire transfer system was poorly designed and maintained. Appellant's complaint is based, in part, on the fact that the transfer system did not contain a transfer switch. A transfer switch would have insured that the two sources of power would have never met, thus eliminating the possibility of an explosion as occurred in the present case.

The transfer system was designed and installed by the appellee's superintendent, Mr. Thompson. Appellant contends that Mr. Thompson had little or no electrical training and was highly unqualified to design an electrical transfer system. Further, appellant contends that the appellee knew that the transfer system, as it existed, was substantially certain to cause harm to an employee. In response to this substantial certainty of harm, the appellant contends, the appellee did nothing to correct the dangerous condition of the system.

The deposition testimony of Ralph Dolence, a licensed electrician and inspector for Aetna Insurance, indicated that the transfer system was not designed with a transfer switch. Mr. Dolence concluded that if there had been a transfer switch installed, the explosion and Mr. Cook's subsequent injuries would not have occurred. However, Mr. Dolence testified that a trained person who "understood how that [transfer] system worked and properly actuated the circuits in a sequence" would have no problem with the system. In addition, Mr. Dolence testified that the National Electrical Code did not require such a transfer switch to connect two or more sources of power. Specifically, Mr. Dolence testified in part as follows:

A. I was explaining that for years and years this operation had worked because people had did it, were trained in doing it. It may or may not have been the best way or the proper way, but there was a procedure and if the procedure was followed, as it was for many years, there was no injuries, no damage, no equipment breakdown or failure would happen.

What happened in my opinion was, as you read, the procedures that were laid out weren't followed. The gen set was not disconnected from the system, thus when CEI was put on line the resultant accident occurred.

Q: Are you through?

A: I'm through.

Q: Now, let's see if you can answer my question.

If there had been transfer equipment which was suitable for the intended use and so designed and installed to prevent the inadvertent interconnection of a normal and alternate source of supply would this injury have been prevented?

A: No, there would not have been.

Q: There would not have been an injury if that equipment had been installed?

A: That's correct.

Q: And that's the reason for this requirement, that is that there be equipment which would prevent this type of ...

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