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Rallya v. A.J. Rose Mfg. Co.

December 8, 2008

TIMOTHY RALLYA, ET AL. APPELLANTS
v.
A.J. ROSE MFG. CO. APPELLEE



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07CV149570.

The opinion of the court was delivered by: Carr, Presiding Judge.

DECISION AND JOURNAL ENTRY

{¶1} Appellants, Timothy and Virginia Rallya, appeal the judgment of the Lorain County Court of Common Pleas, which granted summary judgment in favor of Appellee, A.J. Rose Manufacturing Co. ("A.J. Rose"). This Court reverses.

I.

{¶2} On February 10, 2003, Timothy Rallya ("Rallya") was working for A.J. Rose as a tool and die maker, "flipping" a die to access the internal tooling, when the 4,760-pound die fell on his feet, severely injuring him. On February 6, 2007, Rallya refiled a complaint sounding in employer intentional tort. His wife Virginia alleged a claim for loss of consortium. On April 9, 2007, A.J. Rose filed both an answer and a motion for summary judgment. Rallya filed a brief in opposition, appending, among other documents, an affidavit of a purported expert, Richard Harkness. A.J. Rose moved to strike Harkness' affidavit. The company further filed its reply brief in support of its motion for summary judgment. On January 4, 2008, the trial court granted the motion for summary judgment in favor of A.J. Rose and against Rallya. Rallya timely appeals, raising one assignment of error for review.

II.

ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED BY ENTERING [SUMMARY] JUDGMENT IN FAVOR OF A.J. ROSE."

{¶3} Rallya argues that the trial court erred by granting A.J. Rose's motion for summary judgment because genuine issues of material fact exist with regard to all three elements of his employer intentional tort claim. This Court agrees.

{¶4} This Court reviews an award of summary judgment de novo.*fn1 Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105. This Court applies the same standard as the trial court, viewing the facts in the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12.

{¶5} Pursuant to Civ.R. 56(C), summary judgment is proper if: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327.

{¶6} To prevail on a motion for summary judgment, the party moving for summary judgment must be able to point to evidentiary materials that show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 293. Once a moving party satisfies its burden of supporting its motion for summary judgment with sufficient and acceptable evidence pursuant to Civ.R. 56(C), Civ.R. 56(E) provides that the non-moving party may not rest upon the mere allegations or denials of the moving party's pleadings. Rather, the non-moving party has a reciprocal burden of responding by setting forth specific facts, demonstrating that a "genuine triable issue" exists to be litigated for trial. State ex rel. Zimmerman v. Tompkins (1996), 75 Ohio St.3d 447, 449.

{¶7} The legislature modified R.C. 2745.01 addressing employer intentional tort liability on April 7, 2005. However, those provisions are inapplicable to this case because Rallya's accident occurred prior to the effective date of that statute.*fn2 Talik v. Fed. Marine Terminals, Inc., 117 Ohio St.3d 496, 2008-Ohio-937, at ¶17. Accordingly, the three-prong test set forth in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, remains applicable to this Court's analysis. Talik at ¶17.

{¶8} In Fyffe, the Ohio Supreme Court enunciated the legal standard by which courts must determine whether an employer has committed an intentional tort against an employee:

"[I]n 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. at paragraph one of the syllabus.

{¶9} Rallya argues that genuine issues of material fact exist in regard to all three prongs of the Fyffe test. The Fyffe test is a conjunctive test, i.e., all three elements must be established in order to maintain a prima facie case of an intentional tort by an employer. It follows, therefore, that if there remains no genuine issue of material fact as to one of the elements, discussion of the other elements becomes moot. See Pintur v. Republic Technologies Internatl., LLC, 9th Dist. No. 05CA008656, 2005-Ohio-6220, at ¶11 (finding the issue of substantial certainty dispositive and not addressing the other Fyffe elements).

{¶10} As a preliminary matter, this Court notes that A.J. Rose, as part of its "argument and law" asserts that the trial court should have stricken the affidavit of Rallya's expert. Although it never formally ruled on A.J. Rose's motion to strike the affidavit below, the trial court declined to consider the expert's assertions regarding what A.J. Rose "knew," stating that "Ohio law is clear that an expert may not opine as to an employer's state of mind." January 4, 2008 journal entry, citing Sanfrey v. USM Corp. (Dec. 17, 1990), 12th Dist. No. CA90-02-003, reversed on other grounds, (1991), 61 Ohio St.3d 718. The trial court, however, declined to strike the entire affidavit.

{¶11} This Court has stated that "when a trial court fails to rule upon a [pretrial] motion, it will be presumed that it was overruled." Lorain v. Hodges, 9th Dist. No. 06CA008920, 2007-Ohio-456, at ¶11, quoting Franco v. Kemppel Homes, Inc., 9th Dist. No.21769, 2004-Ohio-2663, at FN4. A.J. Rose asserts its agreement with this proposition of law. It then argues in its appellate brief that the trial court erred by failing to order the affidavit stricken from the record. A.J. Rose failed, however, to file a notice of cross appeal in this case.

{¶12} App.R. 3(C)(1), regarding when a cross appeal is required, states: "A person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order or, in the event the judgment or order may be reversed or modified, an interlocutory ruling merged into the judgment or order, shall file a notice of cross appeal within the time allowed by App.R. 4."

In this case, the trial court's implicit denial of A.J. Rose's motion to strike the expert's affidavit constitutes an interlocutory ruling merged into the final judgment on the motion for summary judgment. As A.J. Rose now seeks to challenge that ruling, it must have filed a cross appeal. As it failed to do so, this Court has no authority to consider A.J. Rose's challenge to the trial court's denial of its motion to strike.

{¶13} In regard to substantive matters raised on appeal, Rallya argues that genuine issues of material fact exist in regard to all three prongs of the Fyffe test. The uncontested facts are as follows.

{¶14} A.J. Rose manufactures automotive parts using dies which are designed and maintained at its two plants. This matter involves an incident at the Avon plant in which Rallya was injured when a 4,700-pound die fell and crushed his feet. Rallya had been working as a tool and die maker at A.J. Rose for 6 years at the time of the accident. Tool and die makers are responsible for repairing and maintaining the dies. In order to access the tooling for repair and maintenance, the tool and die maker must first open, then flip, the die. To open the die, he threads chains through four eye bolts on opposite sides of the top half of a die. Using a crane, he lifts the top half of the die and moves it over to rest on metal horses. At this point, the tooling is facing downwards, so he must "flip" the die so the tooling is facing upwards and is therefore accessible for repair and maintenance.

{ΒΆ15} Rallya was injured while flipping a medium-size transfer die. The die-flipping process at A.J. Rose for such dies was as follows. As the die rests tooling-side down on metal horses, the tool and die maker threads two chains through each of the two eye bolts on one side of the die. Using the control attached to a crane by a cord, the tool and die maker raises the die from a horizontal to a vertical position, at which point the die is completely suspended in the air. He then positions two metal horses onto which the die is lowered and tipped in the opposite direction from vertical to horizontal, exposing the tooling. Once the die approaches the horizontal position, another metal horse might be positioned underneath. After the repair and maintenance is performed, the tool and die maker flips the die, with ...


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