I concur with the majority opinion and write separately because I believe there is a stronger case to support the granting of summary judgment based upon the remedial acts of Appellee Hi-Stat Manufacturing Company, Inc.

The majority cites to the employee's "knowledge" of a dangerous condition based upon the complaints of Appellant Jane Doe, thereby satisfying the first prong of the Fyffe test. I believe the analysis of "knowledge" should begin anew after the remedial action is completed because an employer's knowledge of a dangerous condition prior to remedial action and subsequent to remedial action is different. This analysis presumes that the remedial conduct was reasonably contemplated to resolve the dangerous condition.

First, the concept of a remedial act suggests a responsible action, on the part of the employer, which appears inconsistent with the concept of an intentional act as used in the context of an intentional tort action. Where an employer is made aware of a dangerous condition and takes steps reasonably calculated to resolve the dangerous condition, does the employer in fact still have knowledge of a dangerous condition?

I would suggest, without further comment from an employee, that the employer no longer has "knowledge" because it would have a good faith belief that its action resolved the dangerous condition. This places the focus upon whether the employer's belief that the remedial action would solve the dangerous situation was reasonable.

In the case sub judice, I find Appellee Hi-Stat Manufacturing Company, Inc.'s remedial actions were reasonably contemplated to resolve the dangerous condition and appellee had the right to believe the dangerous condition no longer existed. Under the Fyffe analysis, this would defeat Appellant Jane Doe's intentional tort claim. I would affirm the trial court's granting of the appellee's motion for summary judgment.

___________________ JOHN W. WISE, JUDGE

I respectfully dissent from the majority's disposition of appellant's assignment of error.

I agree with Judge Boggins, assuming appellant's assertions are true (as we are required to do under Civ.R. 56), appellant has satisfied the first and third prongs of the test set forth in Fyffe v. Jeno'sInc.(1991), 59 Ohio St.3d 115.

The majority concludes, as did the trial court, the second prong of theFyffe test was not met. The majority concludes there was not a substantial certainty injury would occur.¹ I concede there did not exist a likelihood, much less a substantial certainty, injury would occur upon any individual exposure to the risk, however, repeated exposure to the risk increased the probability of injury to the point reasonable minds could differ as to whether the injury was substantially certain to occur. Although exposure to a particular risk may only result in injury one out of 1000 times and therefore, not be substantially certain to occur, injury is substantially certain to occur if the employee is exposed to that risk 1000 times.

Given appellant's allegations as to the number of times she was required to encounter the risk; the number of times syringes were found in the trash bags; and the "near miss" of injury to another employee, I believe the determination of whether there was a substantial certainty of injury is a question best left to the trier of fact.

Accordingly, I would reverse the trial court's grant of summary judgment on behalf of the employer.

_________________________ WILLIAM B. HOFFMAN, JUDGE

¹ In his concurring opinion, Judge Wise concludes appellee's remedial actions were reasonably contemplated to resolve the dangerous condition and appellee had the right to believe the dangerous condition no longer existed. As noted in Judge Boggins' opinion at page 2, whether appellee engaged in remedial actions is itself in dispute. Such dispute must be resolved in appellant's favor for purposes of summary judgment. Assuming, arguendo, it was undisputed remedial actions were taken, appellant asserts she continued to be exposed to the syringes on a weekly basis and reported the same to appellee until the date of injury. The very fact the injury to appellant occurred despite appellee's remedial actions (though admittedly relevant to both the first and second prongs of the Fyffe test), creates a dispute as to the sufficiency of the remedial actions taken.

Appellant began employment with appellee in September, 1996, on the assembly line. In April, 1997, she successfully bid for transfer to a position as second-shift custodian.

Included in the job description for such position was emptying trash cans and sanitary napkin containers in the plant restrooms.

In a particular restroom identified as the Vibraseal restroom, appellant encountered a discarded syringe in the sanitary napkin container and reported such to a supervisor. This occurred in August or September, 1997.

Subsequent similar discoveries occurred in each of the succeeding weeks with reportings of such by appellant to appellee.

On January 14, 1998, appellant suffered a puncture injury to one of her fingers by a syringe contained within a sanitary napkin, the needle end of which protruded through the plastic bag provided for disposal of such napkins.

Appellant asserts that she contracted Hepatitis C as a result of such wound.

A discrepancy exists between appellant's deposition testimony as to non-action by appellee, and response to her pre-injury reports as to the syringes.

Appellee, in contrast, states that warning signs were posted, sharp receptacles were provided and in-plant television safety warnings were shown to employees, as to appropriate disposal of medical syringes, prior to the injury.

A prior occurrence of some contact with a syringe was occasioned by a custodian when disposing of a trash bag filled with syringes used on a particular day by the Red Cross, or other outside entity, giving flu shots to employees. Such custodian had not been notified of the contents of such particular trash bag.

Also, prior to the injury to appellant, another custodian experienced a near-miss similar to appellant's injury when a syringe needle end punctured a plastic trash bag and went between her fingers, but without contact. Such incident was also reported.

The issue in question is whether the inaction of appellee, if established, constituted negligence or recklessness subject to participation by appellant under Workers' Compensation, or whether the same rose to the level of an intentional tort, which could be imputed to appellee. If the latter could be a consequence, then a jury question would arise, abrogating the applicability of a summary judgment ruling.

Appellant's sole Assignment of Error is as follows:

THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF HAD FAILED TO PRESENT EVIDENCE TENDING TO SHOW THAT INJURY TO ITS EMPLOYEE, IF SHE WAS REQUIRED TO CONTINUE EMPTYING THE TRASH BAGS CONTAINING THE USED SYRINGES, WAS SUBSTANTIALLY CERTAIN TO RESULT AS REQUIRED BY THE SECOND PRONG OF THE TRIPARTITE ANALYSIS OF FYFFE.

"Party seeking summary judgment, on the ground that nonmoving party cannot prove its case, bears initial burden of informing trial court of basis for motion and identifying portions of record, such as pleadings, depositions, and answers to interrogatories, which demonstrate absence of genuine issue of material fact on essential elements of nonmoving party's claims; although movant need not support motion with affidavits negating opponent's claims, movant cannot discharge its initial burden simply by making conclusory assertion that nonmoving party has no evidence to prove its case and instead must point to specific evidence affirmatively demonstrating that opponent lacks evidence to support its claims.

If party moving for summary judgment satisfies its initial burden of identifying portions of record which demonstrate absence of genuine issue of material fact on essential elements of nonmoving party's claims, then nonmoving party has reciprocal burden to set forth specific facts showing that there is genuine issue for trial.

Summary judgment may be rendered if pleadings and arguments of party seeking summary judgment clearly establish that nonmoving party has no legally cognizable cause of action.

The trial court appropriately accepted appellant's assertions as true for purposes of the summary judgment.

Under Fyffe vs. Jeno's, Inc. (1991), 59 Ohio St.3d 115, and its predecessors, the determination of the possible existence of an employer intentional tort is subject to a three-prong test:

In order to establish "intent" for purposes of proving existence of intentional tort committed by employer against his employee, within purview of Restatement (Second) of Torts, there must be: a showing of knowledge by employer of existence of a dangerous process, procedure, instrumentality, or condition within its business operation: knowledge by the employer that, if the employee is subjected by his employment to such dangerous process, procedure, instrumentality, or condition, harm to the employee will be substantially certainty; and showing that the employer, under those circumstances and with that knowledge, acted to require the employee to continue to perform the dangerous task.

To establish 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 negligent but, as the probability increases that particular consequences may follow, the employer's conduct may be characterized as recklessness and, 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 process, procedure or condition, and he still proceeds, he is treated by the law as if he had in fact desire to produce the result; mere knowledge and appreciation of risk, something short of substantial certainty, is not intent.

Under the case sub judice, there is no question that, assuming appellant's assertions are true, the first requirement of Fyffe, supra, is present, in that contact with the needle of a used syringe, the likelihood of its extruding through trash bags, is potentially dangerous; and that disposal of the trash bags is part of the business operations of appellant. Also, as such disposal constitutes part of the job requirements of appellant, the third recited prong is potentially present.

The crux of the issue is whether imputable knowledge that injury to employees, such as appellant, by non-action of appellee, if such occurred, was certain or substantially certain to result.

The trial court found that appellee's claims, though presumed to be true, did not rise beyond negligence or recklessness to the threshold of intentional tort. As the certainty or substantial certainty of the second requirement of Fyffe, supra, was not present.

This Court agrees with the determination made by the Richland County Common Pleas Court to the effect that recklessness or negligence was potentially present, but that the standards of the Fyffe three-prong test were not met, and therefore, did not rise to the level of an intentional tort by the employer.

Therefore, the decision by the Court of Common Pleas of Richland County is affirmed.

Boggins, J., and Wise, J. concur and concurs separately.

Hoffman, P.J. dissents.