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Johnson v. International Masonry, Inc.

Court of Appeals of Ohio, Tenth District

July 8, 2013

Delores Johnson, Administrator, Plaintiff-Appellant,
International Masonry, Inc., Defendant-Appellee. The Cincinnati Insurance Company, Intervenor-Plaintiff-Appellee,

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 11CVC11-13800)

William W. Johnston, for appellant.

J. Richard Brown; Michael M. Neltner, for appellee The Cincinnati Insurance Company.

Kegler, Brown, Hill & Ritter, Timothy T. Tullis and Timothy A. Kelley, for appellee International Masonry, Inc.



{¶ 1} In this employer intentional-tort case, plaintiff-appellant, Delores Johnson ("appellant"), who is administrator of the estate of her husband, Wilbur Lee Johnson, ("Johnson"), appeals from a summary judgment entered by the Franklin County Court of Common Pleas in favor of defendant-appellee, International Masonry, Inc. ("employer") and intervenor plaintiff-appellee, The Cincinnati Insurance Company. Because we conclude that no genuine issue of material fact is present; that the employer was entitled to judgment as a matter of law; and that the claim of appellee Cincinnati Insurance Company is moot, we affirm.

{¶ 2} Johnson died after a workplace incident that occurred on July 1, 2009. Johnson and two co-workers were installing brick and stone veneers on the exterior of a building. Upon finishing one phase of their assigned masonry work, the workers proceeded to the next section of the building. The workers used scaffolding that had not been secured to the building. Their supervisor had not instructed them to perform work in that area, nor had he told them not to work there. The two surviving workers testified, however, that they believed it was their responsibility to "keep busy, " even if they finished their assigned tasks, and that they therefore continued working by installing flashing in the area of the unsecured scaffold. The supervisor had no knowledge that the workers were on the unsecured scaffold and had not approved the scaffold for use prior to the time the workers used it. Within five minutes, the scaffolding collapsed when a corner outrigger bracket, which is designed to support the scaffold platform, gave way. The bracket had been inspected multiple times before the accident, and no problems had been reported or observed with the part.

{¶ 3} Citing extensive precedent, the trial court concluded that, pursuant to R.C. 2745.01, appellant could recover under a theory of employer intentional tort only "when an employer acts with specific intent to cause an injury" and that proof of negligence or even recklessness does not suffice. (Oct. 30, 2012 Entry, 4.) The court noted that there was no dispute that the employer had not assigned Johnson to work on the scaffold that fell. To the contrary, the workers had entered the area on their own initiative. The court acknowledged that the employees had never been specifically advised not to use the scaffold. It further observed that the record is devoid of any evidence demonstrating that the employer knew, or should have known, that the scaffold bracket was defective. The court concluded that the appellant had failed to prove that the employer deliberately intended to cause injury.

{¶ 4} The trial court further found moot any issues relative to insurer's duty to indemnify the employer for claims sounding in employer intentional tort.

{¶ 5} Appellant appeals from the common pleas court's judgment and asserts that the trial court erred in granting summary judgment.[1]

{¶ 6} We review a grant of summary judgment de novo. Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court's decision." Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9 (internal citations omitted). Summary judgment is appropriate where "the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. Therefore, we undertake an independent review to determine whether appellees were entitled to judgment as a matter of law.

{¶ 7} Appellant argues that a genuine question of material fact exists warranting submission of the case to a jury. She contends that the trial court made three inaccurate findings of fact, as discussed below.

{¶ 8} Appellant first suggests that the trial court incorrectly found that the employer instructed its employees to work only in a specific area of the project, that being on a part of the building with a separate scaffold. Appellant notes that Johnson's coworkers testified that no company employee told them they should not use the scaffold that ultimately fell and that their supervisor had not told them that they should not work beyond their assigned area on the building.

{¶ 9} Similarly, appellant disputes the trial court's conclusion that Johnson and his co-workers entered the area of the unsecured scaffolding on their own initiative. She suggests that Johnson's co-workers testified that they were not told not to work in the area of the scaffold from which they fell, nor were they told to stay off that scaffold, ...

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