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Root v. Stahl Scott Fetzer Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 2, 2017


         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-14-822889

          ATTORNEYS FOR APPELLANTS/CROSS-APPELLEES Robert P. Ducatman Jeffrey Saks Jones Day, Natalia Steele Kimberly Weber Herlihy Heather M. Lutz Vorys, Sater, Seymour & Pease, L.L.P., Sean F. Berney David M. Douglass Douglass & Associates Co., John M. Alten Andrew V. Fontanarosa Paul R. Harris Ulmer & Berne, L.L.P., Collin R. Flake

          ATTORNEYS FOR APPELLEE/CROSS-APPELLANT Christopher J. Van Blargan John J. Reagan Kisling, Nestico & Redick, L.L.C., Michael J. Maillis Kisling, Nestico & Redick, L.L.C.

          BEFORE: Keough, A.J., E.T. Gallagher, J., and Boyle, J.



         {¶1} Defendant-appellant/cross-appellee, The Scott Fetzer Company, ("Scott Fetzer"), appeals from a judgment, rendered after a jury verdict, awarding plaintiff-appellee/cross-appellant, Broc Root ("Root"), damages in the amount of $1, 708, 109.67. For the reasons that follow, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

         I. The Injury

         {¶2} Stahl/Scott Fetzer ("Stahl") manufactures truck bodies at its facility in Wooster, Ohio. It is a sister company of Scott Fetzer, which is located in Westlake, Ohio. Both Stahl and Scott Fetzer are wholly owned subsidiaries of BHSF, Inc.

         {¶3} In early 2012, Root was working for RS Resources, a temp agency, which placed him at the Stahl Wooster facility where he was trained to operate a laser table that cut metal into shapes. During the training, Root worked first shift, and his supervisor was Larry Spade ("Spade"). After Root was approved to operate the laser table, he began working second shift.

         {¶4} On March 19, 2012, Root arrived for work, but was advised that the laser table was inoperable. Because he was paid only for time worked, he asked Spade if he could perform another job. Spade suggested that Root could operate a 90-ton brake press manufactured by Chicago Dreis & Krump and make a metal part called a divider. The dividers were 16 inches long and 3 inches wide, which were classified as "small parts."

          {¶5} The press brake operates by forcing down the upper piece, called a "ram, " and exerting pressure to form a metal part. Metal dies, which are used to cut or shape metal, are inserted into the press brake to form the part. The operator slides a piece of sheet metal into the gap below the ram, inserting it until it hits the back stop or back gauge, which will determine where the bend is formed. The operator then steps on a foot pedal that lowers the ram, bends the metal, and then raises the ram. The divider being made by Root required two separate steps in which he bent the metal one way using the first die, and then moved the divider over to the second die, to make the second bend.

         {¶6} Spade, a seasoned operator of this press brake, demonstrated and explained to Root how to operate the brake press and make the dividers. Spade expressly told Root to keep his hands out of the die area, instructing him to hold the metal piece when inserting it into the press brake with his thumb on top at the edge of the part and his fingers underneath. Spade testified that holding the part this way would keep the operator's fingers out of the die area because as the operator inserts the metal part into the gap, resting it on the bottom die, the operator's fingers necessarily will be blocked by the bottom die and cannot proceed into the pinch point.

         {¶7} Spade did not tell Root to use any hand tools or tongs, or show Root where hand tools could be obtained. Spade had used hand tools to make small dividers - those less than two and one-half inches wide - but felt hand tongs were not necessary for making dividers of this size.

          {¶8} After Root observed Spade making approximately six dividers and Spade observed Root making approximately eight dividers, Root operated the press brake without supervision. Testimony was given that Root assured Spade that he was comfortable operating the press. However, approximately 90 minutes later, Root's fingers, which were on top of, not underneath the metal part, became wedged in the 90-ton press. As a result of the injury, one of Root's fingers was partially severed and two fingers required surgical amputation.

         II. The Lawsuit

         {¶9} In March 2014, Root filed a cause of action against Stahl, Scott Fetzer, Marsh USA, Inc. ("Marsh"), Marsh USA Risk Services ("Marsh Risk"), and Stephen Buehrer, Administrator of the Ohio Bureau of Workers' Compensation ("OWC"), raising causes of action for employer intentional tort and negligence, and requesting declaratory judgment. Root also alleged that the defendants' conduct gave rise to punitive damages. Summary judgment was granted in favor of Stahl and Marsh on Root's negligence claim, and in favor of Scott Fetzer on Root's intentional tort claim. The causes of action tried before the jury were Root's claim against Stahl for employer intentional tort and against Scott Fetzer for negligence. Specific to Scott Fetzer, Root alleged it was negligent in the manner in which it oversaw safety reviews, assessments, and evaluations at various Stahl facilities, including the Wooster facility. This appeal centers around the relationship between Scott Fetzer and Stahl and whether Scott Fetzer owed a duty of care to Root such that it could be found negligent and liable for Root's injuries.

          III. Scott Fetzer's Role

         {¶10} Scott Fetzer provides services, including consulting and risk management, to BHSF, Inc. companies under a shared services arrangement and charges each company for this service. The risk management function involves interacting with insurance brokers to obtain insurance coverage, as well as acting as a center for safety-related information and coordinating the distribution of all safety-related information to Stahl and the related entities for use by the BHSF, Inc. companies. At the time of Root's injury, Scott Bellack ("Bellack") was the head of risk management at Scott Fetzer, and was the direct contact for Marsh and Stahl employees.

         {¶11} Scott Fetzer and Marsh worked under a master contract, with Scott Fetzer establishing the parameters of Marsh's safety-related services and the number of consulting hours to be provided each year. The price for this service and all of the other terms were set forth in a yearly agreement called "Statements of Work."

         {¶12} At Scott Fetzer's request, Marsh conducted OSHA Readiness Assessments at Stahl's Wooster facility. These assessments were customized based on Scott Fetzer's requests. Marsh conducted these assessments in 2004, June 2006, October 2009, and one was planned for 2012.

         {¶13} The assessments consisted of a one- or two-day plant walkthrough during which a Marsh safety engineer or other Scott Fetzer employees would (1) meet with Stahl plant personnel, (2) examine the machines and the facility to identify safety concerns, and (3) correct unsafe practices when observed. Marsh worked with Stahl at the time of assessment to correct observed risks that could be immediately remedied. Assessments also included a review of Stahl's written safety policies, procedures, and history, as well as conversations with Stahl managers who have assigned safety duties.

         {¶14} Thereafter, Marsh prepared a written report describing any OSHA violations observed during the inspections, and provided recommendations to Scott Fetzer to remedy the violations. If Scott Fetzer accepted these recommendations, Stahl would implement the approved recommendations because Stahl maintained day-to-day control of the operations of its Wooster facility, including: (1) hiring, assignment, training, and supervision of personnel, (2) maintenance of equipment, and (3) enforcement of workplace safety policies and procedures. Scott Fetzer would verify that Stahl implemented these improved recommendations.

         {¶15} Keith Yeater, Director of Operations at Stahl from 2004-2006, explained the relationship among Stahl, Scott Fetzer, and Marsh. He testified that directives regarding safety issues typically came through Bellack, and if Marsh had recommendations, those also went through Bellack and then to Stahl. Yeater also testified that he was expected to notify Bellack when corrections were made regarding these directives, but he did not report these corrections to Marsh. Regarding the written policy concerning the press brake, Yeater stated that, to the best of his knowledge, the policy was developed by Stahl, submitted to Scott Fetzer for approval, and if approved, implemented by Stahl.

          {¶16} In September and October 2004 at the request of Scott Fetzer, Marsh conducted a safety compliance audit of two of Stahl's facilities - Wooster and Durant.[1] The memo provided to Bellack from Don Esker, Scott Fetzer's primary loss control consultant at Marsh, specifically noted:

Power press. When small parts are formed in a press brake, the operators' fingers are unacceptably close to the point of operation. A small error or a brief lapse of attention could result in severe injuries. Holders or tongs have been purchased for use with small parts, but they were not being used because they do not offer adequate control or "feel" of the piece as it is formed. Enforce the use of holders or tongs for small parts that bring the operators' fingers within 12" of the point of operation.

         {¶17} Eric Heffelflinger, second shift supervisor at Stahl's Wooster facility, testified that he did not use hand tools or tongs when he operated the press brake because he felt it was easier and safer to not use tools - the press could pull the operator's hand up toward the press if the piece was not timely released. He testified that he did not know of any internal policy to use tongs or of any OSHA regulations requiring their use. However, Heffelflinger admitted that if he had known about the policy, he would have used tongs and would have instructed individuals to use tongs during training. Additionally, Heffelflinger testified that he was not aware of any Stahl guarding manual that stated the use of tongs on small parts was required.

          {¶18} Subsequently, on October 14, 2005, Zurich, one of Scott Fetzer's insurance companies, sent a memo to Scott Fetzer inquiring about the status of the 2005 HSE Risk Engineering Recommendations. Specific to the Stahl Wooster facility, it had been recommended that Scott Fetzer

05-05-3 - Perform a formal machine guarding survey on the press brakes utilized throughout the facility. Some press brakes were adequately guarded while others were without guarding. The evaluation should be in accordance with established OSHA and ANSI standards. The guarding survey should be performed at the Cardington and Wooster locations at a minimum.

         The memo noted that to date, "NO RESPONSE" had been received regarding the recommendation. Despite this memo and recommendation, no action was taken by Scott Fetzer to conduct a "formal machine guarding survey on press brakes utilized throughout" the Stahl Wooster facility. However, Bellack testified that he expected that the next OSHA readiness assessment by Marsh in 2006 would address press brake guarding, and meet OSHA and other applicable standards.

         {¶19} The next risk assessment was conducted at the Stahl Wooster plant on June 13-14, 2006. Prior to the audit, Marsh employees exchanged emails discussing the Stahl Wooster facility and its past problems with "machine guarding." The emails further stated that "[Bellack] will send us the OSHA 300 and claim data." Present at the assessment were members of Marsh's team as well as Stahl employees and management.

         {¶20} The 2006 OSHA readiness report prepared on June 26, 2006, by Marsh indicated a "significant" hazard that open areas of a specific press brake should be guarded when the press brake was in operation. As to the Chicago press brake, Marsh indicated a "significant" hazard that

A Chicago press brake is equipped with "holdbacks" that keep hands away from the point of operation when the holdbacks are adjusted properly. Holdbacks are acceptable, but must be policed regularly because most operators do not like holdbacks or pullbacks. Holdbacks are not as effective as light curtains or other passive safety systems. We understand that the Chicago press brake is used exclusively for the larger doors, where the press brake operator's hands will be well away from the point of operation. Consider installing a presence sensing device (light curtain, RF sensor) to protect the point of operation. If a light curtain is not practical, hold-backs may be used, provided that the operator is trained, the supervisor verifies the adjustment, and it is always used OR use this machine only for large parts that can be held well away from the POO, it may be appropriate to operate the machine without additional guarding.

         {¶21} According to the July 28, 2006 final report, which was generated after Stahl implements the Scott Fetzer's approved recommendations, Stahl's "[employees have bee[n] instructed on the use of holdbacks. They are required to use these each time they run the press." Additionally, guards were placed on both ends of the identified press brake.

         {¶22} After the 2006 risk assessment was conducted at Stahl Wooster, an injury occurred at the Stahl Durant facility when both hands of an employee were crushed in a power press. According to the June 23, 2006 email from Robert Gaus, senior vice president at Marsh, to Margaret Ludwig and other Marsh employees, he "spoke with [Bellack] late last night. They had another press-related incident. * * * [Bellack] wants to develop an [sic] risk assessment score sheet and guideline ASAP to get a better handle on exposure and risk." The email also suggested that the Bellack had the authority to assess $200, 000 against each division that did not respond to the risk assessment score sheet and take corrective actions. Despite this injury, Scott Fetzer did not order the Zurich recommended "formal machine guarding survey on press brakes" at the Stahl Wooster facility.

         {¶23} The Machine Tool Risk Assessment and Inventory Guideline was prepared in June 23, 2006, by Marsh at the request of Scott Fetzer and specifically stated that the purposes of the guidelines were to (1) prevent traumatic injuries by properly evaluating the risk potential, determining the level of tolerable risk, and applying suitable safeguarding when needed; (2) provide guidance, uniformity and accountability of machine-tool-related risk across each Division; (3) increase management and employee understanding of machine-tool risk; and (4) comply with applicable federal, state, and local laws. The focus of the guidelines was about machine guarding. In the months that followed, various emails were exchanged between Scott Fetzer, Marsh, and Stahl regarding brake press guarding.

         {¶24} In September 2009, Bellack notified the Stahl Wooster facility that Marsh would be conducting an OSHA readiness assessment. In an October 2009 email between Bellack and Zurich, Zurich inquired about recommendations they made to Stahl facilities where the response was "No Plans to Comply." Assurances were made by Bellack to Zurich that these responses were not meant to be interpreted as "chose not to act, " but rather, the locations just did not respond. Additionally, Bellack maintained, "I assure you that we take employee safety very seriously which is why we have [Zurich] assist us with the IH side of things and why [Scott Fetzer] has spent over $1 million over the past five years focusing on human capital * * *." Bellack's memo to Zurich, specifically addressed Zurich's recommendation:

05-05-3 (Stahl - Wooster) Adam Novak (Scott Fetzer Risk Department) and a member of Marsh Risk Consulting will be at the Wooster facility the week of October 19, 2009 and will be conducting an OSHA Readiness Assessment. Machine guarding is one of the many areas that will be reviewed. We will issue corrective action where necessary and if this area is one of the areas where a corrective action is taken we will report the closing of the open recommendations directly to Zurich to clear this item.

         The jury heard that Bellack gave conflicting statements regarding whether he believed Marsh's OSHA readiness assessment would cover Zurich's recommendations.

         {¶25} Gil Mayo, Stahl's operations manager, testified that he met with Colton Young, Marsh's consultant, at the Stahl Wooster facility. Mayo said he understood that Marsh was "going to do a complete audit of every piece of equipment and every operation in our process within our four walls."

         {¶26} Young, at the direction of Bellack, conducted the 2009 OSHA readiness assessment. He testified that he was allotted eight hours to review the entire Stahl Wooster facility. Although he was copied on an email regarding an open recommendation by Zurich and that "machine guarding" would be reviewed at the 2009 OSHA assessment, he did not conduct a full press brake audit because he was not instructed by Bellack to conduct the audit.

         {¶27} Young testified about the difference between an OSHA readiness assessment and a full brake press audit. He explained that an OSHA readiness assessment is a "drive-by review of the machines, whereas the full brake press audit is an observation of the operation of the machine during all stages, from tear down to start up to operation - he would observe parts being made. During an OSHA assessment, however, he would generally observe the machines as he walked through the facility, but he would review them for further safety parameters only if the machines were in operation. According to Young, if he had seen a press brake in operation that was not in compliance with OSHA standards, he would have noted that in his report.

         {¶28} The 2009 OSHA report prepared by Young indicated that "chuck guards were missing" on a ...

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