[Cite as Beary v. Larry Murphy Dump Truck Serv., Inc.,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: JOSEPH BEARY : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellant : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 2013CA00240 LARRY MURPHY DUMP TRUCK : SERVICE, INC. : : OPINION Defendant-Appellee

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 2010CV01412

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 29, 2014

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

DANIEL SUCHER KENNETH CALDERONE Young Sucher PLL JOHN CHLYSTA 1001 Jaycox Road 3737 Embassy Parkway Avon, OH 44011 Akron, OH 44334 [Cite as Beary v. Larry Murphy Dump Truck Serv., Inc.,

.]

Gwin, P.J.

{¶1} Appellant appeals the November 15, 2013 judgment entry of the Stark

County Court of Common Pleas granting appellee’s motion for summary judgment.

Facts & Procedural History

{¶2} In October of 2009, appellee Larry Murphy Dump Truck Services, Inc.

(“LMDT”) had a contract to repave a parking lot at the Giant Eagle Grocery Store in

Louisville, Ohio. The first day of the project involved blocking off, prepping, and paving

one-half of the parking lot. The second day of the project involved moving barricades,

prepping, and paving the remaining half of the parking lot. On the second day, foreman

Ron Blackburn (“Blackburn”) gave his crew members their job assignments. Blackburn

was employed by Road Aggregate. Matt Hoopes was told to use a skid steer to clean

dirt and debris from the remaining section of the parking lot before it was repaved. The

skid steer, often called a “Bobcat,” had a mechanical broom device to sweep dirt and

debris from the area. The skid steer was owned by LMDT. Hoopes and appellant

Joseph Beary (“Beary”) were employed by LMDT.

{¶3} Appellant and another worker were assigned to stretch caution tape

around the remaining parking lot section as a barricade to keep motorists from driving

into the area where they would be paving. As appellant was tying caution tape to an

overturned shopping cart, he was struck from behind by the skid steer, sustaining

serious injuries. At the time of the accident the skid steer was in reverse and the

operator did not know appellant was behind him. Appellant did not know the skid steer

was headed in his direction because he had his back turned to the machine. The skid Stark County, Case No. 2013CA00240 3

steer was equipped with a backup alarm. However, on the day of the accident, the

backup alarm was not working.

{¶4} Appellant brought suit against his employer LMDT for an intentional tort

pursuant to R.C. 2745.01 and against Blackburn’s employer, Road Aggregate, Inc., for

negligence. Both LDMT and Road Aggregate, Inc. are owned by the same person,

Larry Murphy. LMDT and Road Aggregate moved for summary judgment and the trial

court granted both of their summary judgment motions on February 17, 2011. Appellant

appealed the trial court’s decision. In Beary v. Larry Murphy Dump Truck, Serv. Inc.,

5th Dist. Stark No. 2011-CA-00048,

, this Court affirmed the trial court’s

ruling. We found the reasoning in Fickle v. Conversion Technologies, Int’l Inc., 6th Dist.

Williams No. WM-10-016,

, to be persuasive and held that the backup

alarm is not equipment safety guard pursuant to R.C. 2745.01(C). Further, that

summary judgment was appropriate with regards with Road Aggregate because

Blackburn was a loaned servant to LMDT and any negligence of Blackburn is not

ascribable in respondeat superior to Road Aggregate.

{¶5} Appellant appealed this Court’s ruling to the Ohio Supreme Court,

asserting two propositions, the first focused on whether the backup alarm was an

equipment safety guard under R.C. 2745.01(C) and the second focused on whether

Ohio law requires an analysis of control as a factor in determining whether an employee

is a loaned servant. The Ohio Supreme Court accepted appellant’s appeal on the first

proposition of law only. Thus, the only remaining claim is appellant’s intentional tort

claim against LMDT. The Ohio Supreme Court held this case in abeyance pending its

decision in Hewitt v. L.E. Myers Co., 8th Dist. Cuyahoga No. 96138,

. Stark County, Case No. 2013CA00240 4

After the Ohio Supreme Court decided the Hewitt case, the Court reversed and

remanded this case to the trial court to “apply this court’s decision in Hewitt to determine

whether the backup alarm is an ‘equipment safety guard.’” Beary v. Larry Murphy

Dump Truck Serv., Inc.,

,

,

.

{¶6} On remand, the parties again briefed the issue in cross-motions for

summary judgment. The trial court issued a judgment entry on November 15, 2013,

granting summary judgment to LMDT. The trial court applied the Hewitt test and

determined the backup alarm is not an “equipment safety guard” because the “alarm

does not shield the operator or bystander from exposure to or injury by a dangerous

aspect of the equipment. It serves only to alert or warn of the skid steer’s approach.”

The trial court also found that even if the backup alarm is an equipment safety guard, no

rebuttable presumption of intent to harm arises because there was no evidence that

LMDT deliberately removed the alarm.

{¶7} LMDT appeals the November 15, 2013 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

{¶8} “I. THE TRIAL COURT ERRED BY DETERMINING THAT A BACKUP

ALARM IS NOT AN EQUIPMENT SAFETY GUARD AS SET FORTH IN R.C.

2745.01(C).

{¶9} "II. THE TRIAL COURT ERRED BY FINDING THAT THERE WAS NO

DELIBERATE REMOVAL OF A SAFETY GUARD WHEN IT WEIGHED THE FACTS

AND IN ITS APPLICATIONS OF THE REBUTTABLE PRESUMPTION OF INJURY AS

SET FORTH IN R.C. 2745.01(C).” Stark County, Case No. 2013CA00240 5

Summary Judgment

{¶10} Civ.R. 56 states, in pertinent part:

“Summary judgment shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, written admissions, affidavits,

transcripts of evidence, and written stipulations of fact, if any, timely filed

in the action, show that there is no genuine issue of material fact and that

the moving party is entitled to judgment as a matter of law. No evidence or

stipulation may be considered except as stated in this rule. A summary

judgment shall not be rendered unless it appears from the evidence or

stipulation, and only from the evidence or stipulation, that 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, that

party being entitled to have the evidence or stipulation construed mostly

strongly in the party’s favor. A summary judgment, interlocutory in

character, may be rendered on the issue of liability alone although there is

a genuine issue as to the amount of damages.”

{¶11} A trial court should not enter a summary judgment if it appears a material

fact is genuinely disputed, nor if, construing the allegations most favorably towards the

non-moving party, reasonable minds could draw different conclusions from the

undisputed facts. Hounshell v. Am. States Ins. Co.,

,

(1981). The court may not resolve any ambiguities in the evidence presented. Inland

Refuse Transfer Co. v. Browning-Ferris Inds. of Ohio, Inc.,

,

(1984). A fact is material if it affects the outcome of the case under the Stark County, Case No. 2013CA00240 6

applicable substantive law. Russell v. Interim Personnel, Inc.,

,

(6th Dist. 1999).

{¶12} When reviewing a trial court’s decision to grant summary judgment, an

appellate court applies the same standard used by the trial court. Smiddy v. The

Wedding Party, Inc.,

,

(1987). This means we review

the matter de novo. Doe v. Shaffer,

,

,

.

{¶13} The party moving for summary judgment bears the initial burden of

informing the trial court of the basis of the motion and identifying the portions of the

record which demonstrates absence of a genuine issue of fact on a material element of

the non-moving party’s claim. Drescher v. Burt,

,

(1996). Once the moving party meets its initial burden, the burden shifts to the non-

moving party to set forth specific facts demonstrating a genuine issue of material fact

does exist.

The non-moving party may not rest upon the allegations and denials in

the pleadings, but instead must submit some evidentiary materials showing a genuine

dispute over material facts. Henkle v. Henkle,

,

(12th Dist. 1991).

I.

{¶14} Appellant contends the trial court erred in finding that the backup alarm in

this case is not an equipment safety guard. Appellant argues the backup alarm is a

protective device on a skid steer designed to make it safe and guard against the known

danger of operating the machine in reverse. Stark County, Case No. 2013CA00240 7

{¶15} In Hewitt v. L.E. Myers Co.,

,

,

, the Ohio Supreme Court was asked to determine whether “equipment

safety guard” for purposes of R.C. 2745.01(C) includes only those devices on a

machine that shield an employee from injury by guarding the point of operation of that

machine.

The Supreme Court held that, as used in R.C. 2745.01(C), “equipment

safety guard” means “a device designed to shield the operator from exposure to or

injury by a dangerous aspect of the equipment.”

The Court rejected a broader

interpretation that would include any generic safety-related items as such a broad

interpretation “ignores not only the meaning of the words used but also the General

Assembly’s intent to restrict liability for intentional torts.”

Further, the Court adopted

the rationale found in Fickle v. Conversion Technologies, Int’l Inc., 6th Dist. Williams No.

WM-10-016,

, that while an equipment safety guard encompasses

something more than an actual physical structure erected between the employee and

the danger, it must be a device that is designed to shield the operator from exposure to

or injury by a dangerous aspect of the equipment.

The Court thus determined that

protective rubber gloves and sleeves are not equipment safety guards.

{¶16} In Beyer v. Rieter Automotive North American,

, 2012-

Ohio-5627,

, the Ohio Supreme Court reversed the decision of the

appeals court that found that face masks were equipment safety guards, and entered

judgment in favor of the employer. In Houdek v. Thyssenkrupp Materials, N.A., Inc., the

Court determined that orange cones, reflective vests, and retractable gates are not

equipment safety guards.

,

,

. The

Supreme Court declined to accept cases in which appeals courts determined that the Stark County, Case No. 2013CA00240 8

following were not equipment safety guards: a trench box, a jog control and an

emergency stop cable, a jib crane and an observation platform, and a tire bead and

bead taper. Barton v. G.E. Baker Construction, 9th Dist. Lorain No. 10CA009929, 2011-

Ohio-5704; Fickle v. Conversion Technologies, Int’l Inc., 6th Dist. Williams No. WM-10-

016,

; Downard v. Rumpke of Ohio, Inc., 12th Dist. Butler No. CA2012-

11-218,

; Roberts v. RMB Ents., Inc., 12th Dist. Butler No. CA2011-03-

060,

.

{¶17} In this case, we find the backup alarm is not an equipment safety guard for

purposes of R.C. 2745.01(C). The backup alarm does not shield the operator or

bystander from exposure or injury by a dangerous aspect of the skid steer and serves

only to alert or warn of the skid steer’s approach. An operator or bystander is not

shielded from injury by the mere existence of the backup alarm. While the backup

alarm may alert a bystander before he enters the zone of danger, it does not keep the

bystander away from this zone of danger and does nothing to stop the skid steer from

operating when an individual gets close to the machine. As noted by the trial court, if a

bystander were directly behind the skid steer while it was backing up, the alarm would

merely keep beeping while the skid steer ran over the bystander. While the backup

alarm may make the skid steer safer, it does not shield the operator or a bystander from

exposure to or injury by a dangerous aspect of the skid steer. As noted by the court in

Fickle, the standard which the Ohio Supreme Court adopted in Hewitt, an equipment

safety guard is more than a device that alerts of a condition or makes a machine safer.

6th Dist. Williams No. WM-10-16,

. Stark County, Case No. 2013CA00240 9

{¶18} Appellant argues the instant case is analogous to Pixley v. ProPak Indus.,

6th Dist. Lucas No. L-12-1177,

, and encourages this Court to adopt the

reasoning in that case, in which the Sixth District found that a safety bumper on a

transfer car is clearly designed to protect employees from a dangerous aspect of the

equipment and is thus an equipment safety guard. We first note that the employer’s

appeal in Pixley has been accepted by the Ohio Supreme Court. Further, we find the

facts in this case are not analogous to those in Pixley. As noted above, the backup

alarm does not shield the operator or bystander from exposure or injury by a dangerous

aspect of the skid steer and serves only to alert or warn of the skid steer’s approach.

{¶19} The backup alarm in this case does not constitute an “equipment safety

guard” for purposes of R.C. 2745.01(C). Consequently, appellant failed to establish a

rebuttable presumption pursuant to R.C. 2745.01(C) and appellee is entitled to a

judgment as a matter of law. Appellant’s first assignment of error is overruled.

II.

{¶20} Appellant further argues the trial court erred by finding, assuming

arguendo that the backup alarm is an equipment safety guard, that there was no

evidence of deliberate removal of a safety guard. We disagree.

{¶21} There is a rebuttable presumption of employer intent upon a showing of

the “deliberate removal * * * of an equipment safety guard * * * if an injury * * * occurs as

a direct result.” R.C. 2745.01(C). The Ohio Supreme Court recently held that, in order

to receive the benefit of the rebuttable presumption that an employer acted with

deliberate intent to cause the plaintiff’s injury, a plaintiff must establish that the employer

“makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that Stark County, Case No. 2013CA00240 10

guard.” Hewitt v. L.E. Myers Co.,

,

,

. The Court stated that removal may encompass more than “physically removing a

guard from equipment and making it unavailable, such as bypassing or disabling the

guard.”

{¶22} The Supreme Court further found in Houdek v. Thyssenkrupp Materials,

N.A., Inc.,

,

,

, that, in the absence

of deliberate removal, a plaintiff must establish that the employer acted with specific

intent to injure him. In Houdek, the Court rejected the argument that the intent inquiry

was an objective one satisfied by an employer’s mere knowledge of a hazardous

condition, as such would be covered by workers’ compensation. See Broyles v. Kasper

Machine Co., 6th Cir. No. 12-3464,

(March 7, 2013). Even if an

employer places an employee in a potentially dangerous situation, there must also be

evidence that either management or the supervisor deliberately intended to injure the

employee for R.C. 2745.01(C) to apply. Houdek,

,

,

.

{¶23} Even if we found that the backup alarm is an equipment safety guard, we

cannot find any evidence the employer deliberately removed it. Appellant asserts that

the evidence that the backup alarm was disconnected and did not work for three to six

months was enough to establish the rebuttable presumption of intent. Alternatively, that

the affidavit and/or testimony of Steve Mumford (“Mumford”) demonstrates that an issue

of fact exists as to deliberate intent.

{¶24} As specifically stated in Houdek, the Ohio Supreme Court rejected the

argument that the intent inquiry was an objective one satisfied by an employer’s mere Stark County, Case No. 2013CA00240 11

knowledge of a hazardous condition. Accordingly, evidence that the alarm was

disconnected and did not work is not enough to establish the rebuttable presumption

without evidence of deliberate intent. We further find the affidavit or testimony of

Mumford is insufficient to establish deliberate intent. Mumford, a truck driver, stated

that he personally observed the wires disconnected in the backup alarm. However,

Mumford also stated that when he saw the wires disconnected, he did not tell anyone or

take a closer look. Mumford could not say why they were disconnected or who

disconnected the wires. Mumford did not state that Blackburn or any other manager

deliberately removed the backup alarm or deliberately disconnected a wire. Further,

when asked why he felt the foreman deliberately intended to injure him on the day of the

accident, appellant testified that because the foreman knew the backup alarm was not

functional and therefore put him at risk. However, appellant also testified that he didn’t

“think his intentions was to deliberately intend to injure me per se” and stated that he is

not aware of any evidence that suggests before the day of the accident the foreman

planned for him to be injured.

{¶25} After reviewing the evidence, we cannot find any indication that the

employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate

the backup alarm. Appellant’s second assignment of error is overruled. Stark County, Case No. 2013CA00240 12

{¶26} Based on the foregoing, appellant’s assignments of error are overruled

and the November 15, 2013 judgment entry of the Stark County Common Pleas Court is

affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur