[Cite as Barton v. G.E. Baker Constr., Inc.,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

ROSS BARTON, III, et al. C.A. No. 10CA009929

Appellants

v. APPEAL FROM JUDGMENT ENTERED IN THE G.E. BAKER CONSTRUCTION COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellee CASE No. 08CV158957

DECISION AND JOURNAL ENTRY

Dated: November 7, 2011

DICKINSON, Judge.

INTRODUCTION

{¶1} Ross “Buddy” Barton III was injured on a construction site while working for

G.E. Baker Construction Inc. Mr. Barton sued G.E. Baker, based on Section 2745.01 of the Ohio

Revised Code, the employer intentional tort statute. The trial court granted summary judgment

to the construction company, and Mr. Barton has appealed. This Court affirms because there are

no genuine issues of material fact and G.E. Baker is entitled to judgment as a matter of law.

BACKGROUND

{¶2} In October 2006, Mr. Barton was working for G.E. Baker installing a water pipe

in a trench along State Route 57 in Grafton, Ohio. He was seriously injured when the trench

collapsed, burying him up to the shoulders and trapping him for nearly three hours. According to

Mr. Barton, the trench was over five feet deep and the soil was wet. He has argued that a trench

box would have prevented his injuries. 2

{¶3} A trench box or shield is a large metal device designed to secure the sides of a

trench in order to protect people working inside it. Trench boxes are heavy metal devices that

must be moved with an equipment loader. According to witnesses, G.E. Baker had a trench box

available nearby, but was not using it at the time of the collapse.

{¶4} Mr. Barton testified that Glen Baker, the owner of G.E. Baker, had previously

threatened him, on approximately six separate occasions, regarding the use of trench boxes.

According to Mr. Barton, Mr. Baker warned him that, “if I ever ask for a box when we didn’t

need one or if I did not go down in a hole that I was instructed to go down into that he would

find somebody that would.” He understood Mr. Baker’s comments to mean that Mr. Barton

would be fired if he insisted on using a trench box for safety. Despite the threats, Mr. Barton

testified that he had asked for a trench box when working on previous jobs. He said that G.E.

Baker supplied a trench box for him one or two times out of approximately six times that he

requested one prior to the job on Route 57.

{¶5} Mr. Barton testified that, two or three days before he was hurt, he asked his

supervisor, Matthew Shriver, if he could use a trench box, but, due to time constraints, Mr.

Shriver would not allow it. According to Mr. Barton, when he asked Mr. Shriver for a trench

box, he refused, saying “if Glenn [Baker] knew we were using a box on this and taking that

much time he would fire [me].”

{¶6} Mr. Barton presented evidence that applicable federal, state, and industry

standards required employers to protect employees working in trenches more than five feet deep

by using a trench box or a sloping process called benching. Although G.E. Baker’s witnesses

agreed that the relevant part of the trench was more than five feet deep at the time of the

collapse, they testified that the walls had been properly benched. Mr. Barton, on the other hand, 3

testified that the trench had not been benched. The Occupational Safety and Health

Administration cited G.E. Baker for violating 29 C.F.R. 1926.652(a)(1) in relation to this

incident, finding that it had not used a trench box or benching to protect its employees. Mr.

Shriver testified that, contrary to safety standards, he did not inspect the trench for stability on

the morning of the collapse. The evidence indicated that, before Mr. Barton was injured,

employees had previously witnessed management cutting corners on safety, including failing to

use a trench box when the situation required one. There was also evidence that, prior to Mr.

Barton’s injury, two other G.E. Baker employees were injured while working in trenches. There

was no evidence, however, that G.E. Baker’s management acted with intent to injure anyone. In

fact, Mr. Barton testified that he did not believe anyone had intentionally tried to hurt him.

THE EMPLOYER INTENTIONAL TORT STATUTE

{¶7} Mr. Barton’s assignment of error is that the trial court incorrectly granted

summary judgment to G.E. Baker. Under Ohio law, employees injured in the workplace are

generally limited to the remedy provided by the Workers’ Compensation Act. R.C. 4123.74. In

limited circumstances, however, an employee may bring a claim against his employer for an

intentional tort under Section 2745.01 of the Ohio Revised Code. In order to prove an employer

intentional tort claim, the employee must prove “that the employer committed the tortious act

with the intent to injure another or with the belief that the injury was substantially certain to

occur.” R.C. 2745.01(A). As used in the statute, “‘substantially certain’ means that an employer

acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or

death.” R.C. 2745.01(B). The Ohio Supreme Court has held that the General Assembly’s intent

in enacting Section 2745.01 “is to permit recovery for employer intentional torts only when an 4

employer acts with specific intent to cause an injury[.]” Kaminski v. Metal & Wire Prods. Co.,

,

.

{¶8} Last year, the Ohio Supreme Court upheld the constitutionality of the newest

incarnation of Section 2745.01, effective April 2005. Kaminski v. Metal & Wire Prods. Co.,

,

, at syllabus. In his dissenting opinion in Kaminski, Justice

Pfeifer wrote that, under the statute, “in order to prove an intentional tort[,] . . . the employee . . .

must prove, at a minimum, that the actions of the employer amount to criminal assault.” Id. at

¶116 (Pfeifer, J., dissenting) (quoting Johnson v. BP Chemicals Inc.,

(1999)). In this case, the trial court agreed with that assessment. The trial court wrote that,

based on Kaminski, “it is uncertain how anything less than criminal misconduct can ever rise to

th[e] level [required by Section 2745.01 to prove an employer intentional tort].” The trial court

determined there was no genuine issue of material fact regarding whether G.E. Baker’s actions

rose to that level and, therefore, granted it summary judgment.

{¶9} On appeal, Mr. Barton has argued that his employer’s failure to use a trench box

to protect its workers created a rebuttable presumption of the intent to injure as contemplated by

the exception in Section 2745.01(C). Under that subsection, “[d]eliberate removal by an

employer of an equipment safety guard . . . creates a rebuttable presumption that the removal . . .

was committed with intent to injure another if an injury or an occupational disease or condition

occurs as a direct result.” R.C. 2745.01(C). Mr. Barton has argued that G.E. Baker deliberately

removed “an equipment safety guard” by not continuing to use the trench box as workers

progressed down the length of the trench.

{¶10} The General Assembly did not define the term “equipment safety guard” as used

in Section 2745.01. “In the absence of clear legislative intent to the contrary, words and phrases 5

in a statute shall be read in context and construed according to their plain, ordinary meaning.”

Fickle v. Conversion Techs. Int’l Inc., 6th Dist. No. WM-10-016,

, at ¶29

(quoting Kunkler v. Goodyear Tire & Rubber Co.,

(1988)).

“[E]quipment” is defined as “the implements (as machinery or tools) used in an operation or

activity[.]” Webster’s Third New Int’l Dictionary 768 (1993). “[S]afety” is defined as “the

condition of being safe: freedom from exposure to danger: exemption from hurt, injury, or

loss[.]” Id. at 1998. A “guard” is “a fixture or attachment designed to protect or secure against

injury . . . .” Id. at 1007.

{¶11} From these common dictionary definitions, it becomes apparent that not all

workplace safety devices are “equipment safety guards” as that term is used in Section 2745.01.

See Fickle v. Conversion Techs. Int’l Inc., 6th Dist. No. WM-10-016,

, at ¶42.

“[A]s used in R.C. 2745.01(C), an ‘equipment safety guard’ would be commonly understood to

mean a device that is designed to shield the operator from exposure to or injury by a dangerous

aspect of the equipment.” Id. at ¶43. In this case, the trench box is not an “equipment safety

guard” under Section 2745.01(C) because it is designed to protect workers from trench collapse.

A trench is not a piece of equipment and the trench box is not designed to protect the operator of

any piece of equipment. Therefore, Section 2745.01(C) does not apply, and G.E. Baker’s failure

to use a trench box to protect its workers from the danger of trench collapse does not create a

rebuttable presumption of intent to injure under the employer intentional tort statute. Mr.

Barton’s assignment of error is overruled.

{¶12} Construing the evidence in a light most favorable to Mr. Barton, we assume that

the trench was more than five feet deep, the walls of the trench were not benched, the soil was

wet, Mr. Barton asked for a trench box, and G.E. Baker violated applicable regulations by 6

refusing to provide it. Even so, under Section 2745.01 of the Ohio Revised Code, there is no

genuine issue of material fact regarding whether G.E. Baker committed a tortious act with the

intent to injure an employee or whether it acted with deliberate intent to cause an employee to

suffer an injury. R.C. 2745.01(A)-(B). G.E. Baker is entitled to judgment as a matter of law.

CONCLUSION

{¶13} There is no genuine issue of material fact, and G.E. Baker is entitled to judgment

as a matter of law. The judgment of the Lorain County Common Pleas Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

CLAIR E. DICKINSON FOR THE COURT 7

BELFANCE, P. J. WHITMORE, J. CONCUR

APPEARANCES:

R. CRAIG MCLAUGHLIN and PETER D. TRASKA, Attorneys at Law, for Appellant.

SHANNON M. FOGARTY, Attorney at Law, for Appellee.