IN THE SUPREME COURT OF OHIO

CASENO. 08-1500

STEVE RICHARDSON Plaintiff-Appellant,

-vs-

WELDED TUBES, INC. Defendant-Appellee.

ON APPEAL FROM ASHTABULA COUNTY COURT OF APPEALS CASE NO. 2007-A-0069

DEFENDANT-APPELLEE'S RESPONSE TO PLAINTIFF-APPELLANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

W. CRAIG BASHEIN (0034591) JAN L. ROLLER (0008171) BASHEIN & BASHEIN CO., L.P.A. DAVIS & YOUNG Terminal Tower, 35th Floor 1200 Fifth Third Center 50 Public Square 600 Superior Avenue, E. Cleveland, Ohio 44113-2216 Cleveland, Ohio 44114-2654 Phone: (216) 771-3239 Phone (216) 348-1700 Fax: (216) 781-5876 Fax: (216) 621-0602 E-mail: cbasheinnabasheinlaw.com E-mail: [email protected] Attorney for Defendant-Appellee PAUL W. FLOWERS (0046625) PAUL W. FLOWERS CO., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113-2216 Phone: (216) 344-9393 Fax: (216) 344-9395 E-mail: [email protected] Attorneysfor Plaintiff-Appellant r LDDD A1.)G 2 0 ;'.;<'3 CLkRk( Or CpUMT SUPREME CQURT OF OHIO TABLE OF CONTENTS

TABLE OF AUTHORITIES ...... iu

I. INTRODUCTION ...... 1

B. ARGUMENT AGAINST APPELLANT'S PROPOSITION OF LAW 1: The admissibility of OSHA violations in employer intentional tort actions is not a matter of public or great general interest ...... 2

A. There is no conflict between Ohio Appellate Courts over whether, and to what extent OSHA violations may be properly considered in employer intentional tort cases ...... 2

B. Appellant introduced no evidence of prior OSHA violations relating to the conduct which caused the injury ...... 8

III. ARGUMENT AGAINST APPELLANT'S PROPOSITION OF LAW NO. II: An examination of the general prohibition against "double hearsay" is neither a matter of public or great general interest and is irrelevant in this case in any event ...... 9

IV. CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11

ii TABLE OF AUTHORITIES

CASES PAGE(S)

Anderson vs. Zavarella Bros. Const. Co., (Dec. 5, 1996), 8' Dist. No. 70657, 1996 Ohio App. LEXIS 5468 ...... 7

Drazetic vs. Coe Mfg. Co., 11"' Dist No. 2005-L-035, 2006-Ohio-1688 ...... 10

Estate ofMerrell vs. M. Weingold & Co., 8`'Dist. No. 88508, 2007-Ohio-3070, 2007 WL 1776357 ...... 4

Fyffe vs. Jeno's, Inc., (1991), 59 Ohio St.3d115 ...... 3

Hernandez vs. Martin Chevrolet, Inc., 72 Ohio St.3d 302, 1995-Ohio-200, 649 N.E.2d 215 ...... 1, 2, 3, 6

Hristovski vs. Bard Manuf. Co., 6' Dist. No. WM-03-022, 2004-Ohio-3984 ...... 3, 6

Logan vs. Birmingham Steel Corp., (2003), 8`' Dist. No. 80472, 2003-Ohio-4171 ...... 3, 4

Sanek vs. Duracote Corp., (1989), 43 Ohio St.3d 169, 172 ...... 9

Tapp vs. Mario's Beauty Salon, Inc., 8' Dist. No. 89401, 2008-Ohio-51 ...... 5

Van Fossen vs. Babcock & Wilcox Co., (1988), 36 Ohio St.3d 100, 112 ...... 9

iii I. INTRODUCTION

Appellant erroneously contends that this case presents an opportunity for this Court to

"resolve a sharp conflict" which allegedly exists between the District Appellate Courts over the potential relevancy of Occupational Safety and Health Administration (OSHA) violations in civil lawsuits. Appellant blames the "confusion" over this issue on the holding in Hernandez v. Martin

Chevrolet, Inc., 72 Ohio St.3d 302, 1995-Ohio-200, 649 N.E.2d 1215, wherein this Court held that an OSHA violation does not constitute negligence per se. While agreeing with this "sound holding,"Appellant states that appellate courts have misconstrued this holding to mean that OSHA violations are not relevant to a determination of an employer's liability in a tort action, and that the

6`', 8`h and 11 `h Districts do not apply this holding in any consistent manner. Appellant's argument is incorrect. As will be discussed below, the 6^', 8Ih and 11`h Districts are in agreement on how the holding in Hernandez should be applied in employer intentional tort cases such as this one.

Accordingly, Appellant fails to present a substantial constitutional question or a question of public or great general interest.

The second issue raised by Appellant similarly fails to present a substantial constitutional question or a question of public or great general interest. Appellant argues that this Court should reexamine the general prohibition against "double hearsay," and that the Court of Appeals inappropriately applied the rule to this case when it refused to consider deposition testimony which was clearly inadmissible hearsay. As will be discussed below, the Court of Appeals properly disregarded this hearsay evidence, and in addition noted that even if the evidence was not hearsay,

1 the evidence would still be irrelevant to the facts of this case. Accordingly, whether or not the double hearsay was subject to a hearsay exception, the evidence would not have changed the Court of Appeals' decision in this case.

The Court of Appeals properly granted Appellee's Motion for Sununary Judgment, and contrary to Appellant's assertion, nothing in this case merits review by this Court. Indeed, the issues

Appellant raises are fact specific, and not of great general or public interest. The Appellate Court ruling in this case was based upon well-established legal precedent in hannony with other appellate courts addressing similar issaes. For these reasons, this Court should decline to entertain this appeal.

II. ARGUMENT AGAINST APPELLANT'S PROPOSITION OF LAW I: The admissibility of OSHA violations in employer intentional tort actions is not a matter of public and great general interest.

A. There Is No Conflict Between Ohio Appellate Courts Over Whether, And To What Extent, OSHA Violations May Be Properly Considered In Employer Intentional Tort Cases.

Appellant contends that a "stark conflict" has developed between Ohio appellate courts over the relevance of OSHA violations to an employer intentional tort action. Appellant erroneously asserts that in the proceedings below, the 11`h District Court of Appeals incorrectly held that

Appellee's "countless violations of OSHA regulations" were irrelevant to the instant claim. In fact, the 11' District Court of Appeals' holding was entirely consistent with prior holdings by the 6" and

8t° Districts.

This Court has held for more than a decade that Congress did not intend OSHA to affect the duties of employers owed to those injured during the course of their employment. Hernandez v.

Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 202, 203. For this reason, as a general rule, it is of no consequence whether a defendant employer in an employer intentional tort action is in actual

2 violation of OSHA for the conduct that actually lead to the employee's injury. Sanek v. Duracote

Corp. (1989), 43 Ohio St.3d 169, 172. For as the Court found in Hernandez, violation of OSHA does not constitute negligence per se. Hernandez, 72 Ohio St.3d 202, at syllabus.

What is relevant for consideration regarding OSHA violations for determining whether a defendant employer committed an employer intentional tort is the employer's actual knowledge that an injury to its employee is substantially certain to occur. Such evidence may be presented in the form of: (1) prior OSBA citations regarding the same conduct which lead to a Plaintiff employee's injury; and/or (2) prior OSHA violations which resulted in injury to other employees regarding the same conduct which lead to a Plaintiff employee's injury. Such prior citations and/or violations are relevant to the second prong of the test in Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, "in determining the employer's knowledge of substantial certainty of injury." Logan v. Birmingham

Steel Corp. (2003), 8th Dist. No. 80472, 2003-Ohio-4171. In fact, the 6th, 8"' and 11`n Appellate

District Courts all concur with these statements of law.

Appellant cites Logan v. Birmingham Steel Corp., 2003-Ohio-4171 at ¶27 for the proposition that the 8'n District holds that an employer's failure to comply with safety regulations is a relevant consideration in determining the employer's knowledge of substantial certainty of injury. In Logan, however, the Court allowed evidence of violations of OSHA regulations (for which the employer was not formally cited) where the employer was on notice that injury was substantially certain to occur because the same machinery which injured the employee had malfunctioned on at least five previous occasions. Id. at ¶36. The Court stated:

3 The testimony of David Atkins, the electrical supervisor, indicates the mast that injured Logan malfunctioned at leastfcve times in the past. Edward Bennett indicated he was almost injured when the mast unexpectedly moved toward him in manual mode while he was removing a coil. Chris Georgas also testified that the mast unexpectedly cycled in manual mode, almost striking a fellow employee, Ron Henley. Furthermore, Birmingham was violating OSfIA regulations by either not enforcing, properly training, or disciplining employees on proper ways to lock out machinery that may cycle and injure employees. These are all factors to be considered in determin;ng if the injury to Logan was substantially certain to occur. Id. (Emphasis added).

Because the prior OSHA violation at issue in Logan involved the exact same conduct which ultimately injured the employee, and the evidence established that the employer actually knew that the machine had malfunctioned several times, the Court, consistent with other Ohio Appellate

Courts, allowed the evidence of the prior OSHA violation because it tended to establish knowledge by the employer of substantial certainty of injury. Id.

Appellant further cites Estate of Merrell v. M. Weingold & Co., 8`" Dist. No. 88508, 2007-

Ohio-3070, 2007 WL 1776357 at ¶44, to support its argument that the 8"' District has found OSHA violations relevant to prove employer intentional tort. However, the Court in Estate ofMerrell stated that instructions given to an employer subsequent to an OSHA investigation which took place prior to the subject accident, and relating to the same conduct may be a factor in proving an intentional tort. Id. In Estate of Merrell, the employee was a"burner" on a scrap metal baler at the employer's scrap yard. One of his job duties was clearing scrap metal that became jammed in the baler. Id. at

¶4. The employee was killed when another worker turned on the baler while the employee was inside the baler clearing ajam. Id. at ¶14. On appeal of a trial court summary judgment ruling in favor of the employer, the Court of Appeals permitted the plaintiffs to introduce evidence showing

4 that the employer had been subject to a prior OSHA investigation in which the employer was instructed with regard to "maintenance and clearing jams on the baler: advise crane operator to stop delivering scrap. Baler operator to shut down and lock out main power controls." Id. at ¶¶48-49

(Emphasis in original). The court stated that:

This evidence suggests that, as early as 1995, M. Weingold [the employer] recognized the need for a lock out/tag out program for clearing j ams on its balers. The evidence also suggests, however, that despite its apparent recognition of the needfor such a program, M. Weingold never implemented any progrant. The OSHA inspector apparently recognized as much ... . Id at para. 50. (Emphasis added).

Accordingly, the Court held that because the evidence suggested that the employer had previously been citedfor a violation which involved the same conduct which ultimately caused the employee's death, the prior OSHA violation was admissible. Id.

The 8b District Court of Appeals demonstrated its concurrence with the above-stated analysis in its recent case, Tapp v. Mario's Beauty Salon, Inc., 8`h Dist. No. 89401, 2008-Ohio-51. The court at ¶12 stated:

There is no evidence that Mario's knew about the OSHA requirements before plaintiff was injured. Ohio law does not recognize OSHA violations as even negligence per se, much less an intentional tort. Hernandez v. Martin Chevrolet, Inc. (1995), 72 Ohio St.3d 202, 203. Under these circumstances, the violations of OSHA regulations do not demonstrate that Mario's knew of a dangerous condition on its premises. Cf. Ross v. William E. Platten Constr. Co., Cuyahoga App. No. 88749, 2007-Ohio-5733, ¶¶ 27-29 (employer's prior knowledge of OSHA guidelines regarding "shoring" of trenches created a genuine issue of fact whether employer's refusal to install shoring made the harm suffered by the employee a substantial certainty). (Emphasis added).

5 Likewise, in Hristovski v. Bard Manuf. Co., 6"' Dist. No. WIvI-03-022, 2004-Ohio-3984, the

6u' District held that evidence of an alleged OSHA violation for which the employer had not been cited, was not admissible as evidence of the employer's liability because the alleged OSHA violation in that case involved the precise conduct which caused the Plaintiffs injury. The evidence suggested that the employer did not have knowledge of the safety hazard to a substantial certainty, in that it had not been previously cited and no prior accident occurred. Instead, the Plaintiff's expert stated in an affidavit that the, "Defendant knew or should have known, that with substantial certainty, the air hose, being positioned on the floor is a safety hazard," and that this was an OSHA violation.

Hristovskd at ¶13. After quoting this Court's holding in Hernandez, that Congress did not intend

OSHA to affect the duties of employers in workplace accidents, this Court went on to find that "* **

"any such OSHA violation," meaning the one alleged by Plaintiff s expert, "does not weigh into our consideration of whether Bard (the employer) knew Hristovski's injuries were a substantial certainty." Id at ¶13.

Hristovski, in other words, did not hold that OSHA violations are never to be considered in employer intentional tort actions. Instead, it held that the alleged violation at issue and which caused the accident was not to be considered because it did not establish any prior knowledge demonstrating that the employer knew with substantial injury that its employee's injury would occur.

What all of the holdings in the above-cited cases share in common is a determination that

OSHAviolations may be admissible to establish an employer intentional tort if: (1) the employer was previously put on notice of a condition substantially certain to cause injury (either by way of OSHA

6 citation or prior accident); and (2) the prior notice related to the precise conduct which caused the employee's injury.

Contraryto Appellant's argument, these holdings are not "diametrically opposed to the harsh and uncompromising rule which was adopted" by the 11' District in this case. Similar to holdings by the 6' and 8' Districts, in this case, the 1P District agreed with the trial court that any evidence of alleged prior OSHA violations against Appellee was irrelevant to the present case in that Appellee had never been cited for the conduct alleged to have caused the Appellant's injuries (i.e. the bent grate), and there was no evidence that the alleged violation(s) caused any injury. The Courtin fact distinguished the facts ofAnderson v. Zavarella Bros. Const. Co. (Dec. 5,1996), 8t° Dist. No. 70657,

1996 Ohio App. LEXIS 5468, relied upon by Appellant, in that Anderson involved a fall from scaffolding which lacked a guardrail, and because evidence was presented that the employer was previously cited by OSHA for a violation arising out of the same conduct when another employee fell from an area that was not protected by a guardrail. The court stated "[t]hus, in that case, the prior violation was for the same conduct which caused the injury in Anderson. It is undisputed that, here, appellee was never cited for the violation of any safety regulation arising from the bent grate."

Opinion, p. 20, ¶86.

Based upon the above authority, it is clear that there is no conflict between Ohio Appellate courts over whether, and to what extent, OSHA violations may be properly considered in employer intentional tort cases. Accordingly, this Court should decline to entertain this appeal.

7 B. Appellant Introduced No Evidence of Prior OSHA Violations Relating To The Conduct Which Caused The Injurv.

Appellant erroneously contends that "compelling evidence was presented" at the appellate level that Appellee had "long been flouting govemmental regulations that walking surfaces be maintained free from trip hazards." Both the trial court and the Court of Appeals reviewed and analyzed the evidence submitted, which included a report of Plaintiff s expert, Richard Hayes and deposition testimony of former employee Herman Madden ("Madden"), which discussed these

alleged OSHA violations. The lower courts both found the evidence irrelevant and inadmissible.

Although Hayes' report argued that Appellee, "failed to adhere to published OSHA safety regulations," the Court of Appeals aptly noted that:

Hayes does not state in his report that appellee violated any regulation of OSHA or any other governmental agency. He merely states that Appellee was aware that "floor holes" were violations of federal and state safety standards. He does not say which standards were violated. Further, appellee had never been cited by any state or federal agency with having a hole in its floor. Opinion at ¶87.

Also, while Appellant relied heavily on comments made by Madden, Madden left the

company in June, 2002, more than two years before the Plaintiff's accident. Plaintiff's Memorandum

in Opposition to Defendant's Motion for Summary Judgment at pp.4-5. Moreover, the grate had

been replaced a year before Plaintiffl s accident. Defendant's Reply Brief, Exhibit A, p. 10. Madden, therefore, did not see the conditions in the plant or the grate in question for several years prior to the

accident in this case. In reference to Madden's comments, the Court of Appeals correctly concluded:

Appellant's reference to maintenance manager Madden's opinion that appellee was `violating OSHA regulations and numerous aspects of the regulations (sic)' does not evidence appellee's substantial certainty of harm regarding the grate because Madden did not testify what regulations were allegedly violated. Further since no such

8 regulations are in the record or even cited, we are unable to consider the evidentiary basis, if any, for Madden's opinion. Opinion at ¶87.

Based upon the above, Appellants presented no evidence that Appellee had received any prior

OSHA citations involving the grate in question or any other floor holes, which would potentially be relevant to Appellant's intentional tort claim. In addition, the evidence suggested that there had been no prior accidents involving the grate in question. Accordingly, any "evidence" which Appellant sought to introduce to support the contention that Appellee had received OSHA violations for matters which did not relate to the floor grate or other floor holes, was irrelevant and inadmissible and was properly ignored by the lower courts.

III. ARGUMENT AGAINST APPELLANT'S PROPOSITION OF LAW NO. II: An examination of the general prohibition against "double hearsay" is neither a matter of public or great general interest and is irrelevant in this case in any event.

Appellant contends that this entire case would have been decided differently had the lower courts allowed the admission of testimony by Madden that he had been told by his superiors that they had been told by the company owner, Bob Lewis, that paying OSHA fines was cheaper than furnishing a safe workplace. The lower courts carefully examined the evidence presented about alleged safety violations, and also noted the requirement in employer intentional tort cases that the plaintiff must prove the employer had "actual knowledge of the exact dangers which ultimately caused" the injury. Citing, Van Fossen v. Babcock & Wilcock Co. (1988), 36 Ohio St.3d 100, 112;

Sanek v. Duracote Corp. (1989), 43 Ohio St.3d 169, 172, Opinion of June 16, 2008 at ¶74.

Moreover, the plaintiff must demonstrate that the employer had knowledge "that injury from a

9 particular procedure or process was substantially certain to occur." (Emphasis added by this Court.)

Drazetic v. Coe Mfg. Co., I 1'" Dist. No. 2005-L-035, 2006-Ohio-1688 at ¶22.

Because of these proof requirements, an alleged comment from a plant owner or plant

manager to the effect that it was more advantageous to pay OSHA fines than spend money on safe

working conditions was given proper consideration by the lower courts. The Court of Appeals found

that the alleged comment, whether made at all, was made considering chains for steel coils, not the

subject grate, and, therefore, was not relevant to the plaintiff's claim. Opinion at ¶80.

Accordingly, even if each part of the double hearsay was subject to a hearsay exception, the

alleged comment was irrelevant and immaterial to this case,

IV. CONCLUSION

Because the Ohio Appellate courts are not in conflict on how the holding in Hernandez should

be applied in employer intentional tort cases such as this one, and because an examination of the

general prohibition against "double hearsay" does not present a substantial constitutional question or

a question of public or great interest, Appellee Welded Tubes, Inc. respectfully requests that this

Court decline to entertain this appeal.

10 Respectfully submitted,

J . ROLLER (0008171) DAVIS & YOUNG 1200 Fifth Third Center 600 Superior Avenue, E. Cleveland, Ohio 44114-2654 Phone: (216) 348-1700 Fax: (216) 621-0602 E-mail: 'rot ller(^a daviVoung . com

Attorney for Defendant-Appellee, Welded Tubes, Inc.

CERTIFICATE OF SERVICE 0- A copy of the foregoing was sent by regular U.S. mail this j day of August, 2008 to:

W. Craig Bashein, Esq. Bashein & Bashein Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 Attorneyfor Plaintiff-Appellant

Paul W. Flowers, Esq. Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113 Attorneyfor Plaintiff-Appellant

J^. ROLLER (0008171) Att rney for Defendant-Appellee, Welded Tubes, Inc. W:\GCOZ0977\PLEADINGSWIemo Re Jurisdiction Response,wpd

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