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Michael Simonelli v. Kelman Fligner

December 26, 2012

MICHAEL SIMONELLI APPELLANT
v.
KELMAN FLIGNER, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CV169586

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

Cite as Simonelli v. Fligner,

DECISION AND JOURNAL ENTRY

{¶1} Plaintiff, Michael Simonelli, appeals from the judgment of the Lorain County Court of Common Pleas, which granted summary judgment to Fligner Enterprises, Fligner's Market, and Kelman Fligner (collectively "Fligners") and dismissed Mr. Simonelli's complaint. This Court affirms.

I.

{¶2} In 2009, Mr. Simonelli was working as a butcher at Fligner's Market. During the course of his employment, a meat-cutting band saw amputated the tip of Mr. Simonelli's thumb. Thereafter, Mr. Simonelli filed a complaint against Fligners. In the complaint, Mr. Simonelli did not specifically delineate the causes of action on which his complaint was based, but broadly speaking, his allegations included that he was wrongfully terminated, that Fligners intentionally caused his injury, and that he suffered financial and emotional damages due to Fligners' conduct.

{¶3} Fligners filed a motion for summary judgment, arguing that no genuine issue of material fact existed in regard to Mr. Simonelli's claims and that they were entitled to judgment as a matter of law. Mr. Simonelli filed a response in opposition to the motion. The trial court issued a judgment entry granting Fligners' motion, and thereafter issued a journal entry dismissing all of Mr. Simonelli's claims. Mr. Simonelli has appealed from the trial court's rulings, and he presents one assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF [FLIGNERS].

{¶4} In his sole assignment of error, Mr. Simonelli argues that the trial court erred in granting summary judgment to Fligners. We disagree.

{¶5} This Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Pursuant to Civ.R. 56(C), summary judgment is proper if:

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., 50 Ohio St.2d 317, 327 (1977).

{¶6} The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). The moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Dresher at 292-93. Once this burden is satisfied, the non-moving party bears the burden of offering specific facts to show a genuine issue for trial. Id. at 293. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to, or provide, some evidentiary material that demonstrates a genuine dispute over a material fact. In re Fike Trust, 9th Dist. No. 06CA0018, 2006-Ohio-6332, ¶ 10.

{¶7} Here, the trial court granted Fligners summary judgment on all of Mr. Simonelli's claims. We will separately discuss the propriety of summary judgment on each of the claims identified by Mr. Simonelli in his merit brief.

Intentional Tort

{¶8} Mr. Simonelli first argues that the trial court erred in granting summary judgment in favor of Fligners on his claim for an employer intentional tort. "Under Ohio law, employees injured in the workplace are generally limited to the remedy provided by the Workers' Compensation Act." Barton v. G.E. Baker Constr., Inc., 9th Dist. No. 10CA009929, 2011-Ohio- 5704, ¶ 7, citing R.C. 4123.74; see also Houdek v. ThyssenKrupp Materials N.A., Inc., Slip Opinion No. 2012-Ohio-5685, ¶ 25. However, in limited situations, an injured employee may bring a claim ...


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