[Cite as Bliss v. Johns Manville Corp. , 2021-Ohio-1673.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Robert Bliss, et al. Court of Appeals No. L-20-1091 Appellee Trial Court No. CI0201704824

v. Johns Manville, et al. DECISION AND JUDGMENT Appellant Decided: May 14, 2021 * * * * * Kevin J. Boissoneault and Jonathan M. Ashton, for appellee. Mark S. Barnes, Gregory B. Denny and Elizabeth L. Bolduc, for appellant.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} This matter is before the court on appeal from the judgment of the Lucas County Court of Common Pleas, denying summary judgment and ente ring judgment for appellant following a jury trial. For the following reasons, w e reverse.2. II. Background and Procedure {¶ 2} On November 17, 2015, appellee, John Bliss, sustained a deglovi ng injury to his right hand while operating a machine known as a Base Fiber Feeder. This machine uses a conveyor system to separate fiberglass fibers, feed the fibers into two adjacent lift aprons, and form the fibers into insulation. The conveyor beltof the lift apron has oneinch metal spikes on the surface, which help raise the fibers t o the top of the lift apron. The fibers then fall onto an incline conveyor before being tran sported to a pulper. {¶ 3} The lift apron has a sensor to control the speed of the conveyo r, and if the sensor is obstructed, the conveyor slows or completely stops, r equiring manual cleaning of the sensor with a nylon brush. The design of the machine, w ith an access window, permits this manual cleaning. In rare instances, an employee c annot clean the sensor with the brush via the access window, and maintenance staff must ser vice the machine. On the date of the injury, the sensor became obstructed and appell ee opened the access window to clear the sensor while the machine was running, which resulted in his injury. {¶ 4} Appellant, Johns Manville, maintains three lift aprons in the p lant. In response to a similar incident in 2013, appellant added bolts t o the access windows on the two lift aprons in use on the Base Fiber Feeder. A spare lift apron, not on the machine at the time, did not have bolts added to it. Sometime prior to th e incident, appellant removed a lift apron and replaced it with the spare lift apron, without bolts. Therefore, on the date of the injury, there were no bolts to impede appell ee from using the access window, which ultimately led to his degloving injury.3. {¶ 5} On November 15, 2017, appellee filed suit in the Lucas County C ourt of Common Pleas, alleging appellant intentionally caused injury to appellee in violation of R.C. 2745.01. Appellant filed a motion for summary judgment on May 30, 2019, on the grounds that there was insufficient evidence to establish it ac ted with intent to injure another under R.C. 2745.01(A) and (B). In response, appellee f iled a memorandum in opposition of summary judgment on July 18, 2019, alleging appel lee was entitled to a rebuttable presumption of intent to injure under R.C. 2745.01(C ), supported by the affidavit of his expert Gerald Rennell. On August 1, 2019, app ellant filed a reply memorandum in support of summary judgement which argued that ap pellee failed to carry his burden of proof under R.C. 2745.01(C), and moved to s trike the affidavit of

Rennell. {¶ 6} The affidavit stated, in relevant part: 6. Johns Manville knew the guard on the base fiber feeder was defective because it was not secured in position with bolts req uiring hand tools to open the guard. Having an unsecured and defective guar d is the same as removing a guard.

* * * 11. Johns Manville showed a total and complete disregard for t he safety of its employees by failing to secure guards in place wi th bolts.

* * *4. 13. It is my opinion that Johns Manville deliberately removed a safety guard when its personnel failed to bolt the guard in pos ition (even though the guard had previously been bolted following an identi cal incident) and allowed the unguarded machine to be operated in v iolation of OSHA 1910.212(a)(2). In other words, another incident was inevi table. While it is impossible, at this juncture, to determine the stat e of mind of any Johns Manville supervisor or safety personnel, what is clear is that the decision to remove this equipment guard in this instance came a s a result of deliberate, intentional, and volitional actions. These same peo ple, with specific knowledge of an identical incident to one of its emplo yees, took

these actions and left Mr. Bliss to suffer the inevitable conse quences. {¶ 7} The trial court denied appellant’s motion to strike Rennell’s a ffidavit on August 29, 2019. On September 30, 2019, the trial court also d enied appellant’s motion for summary judgment. The trial court relied on the expert aff idavit of Rennell, which opined that a guard was deliberately removed, to conclude that appellant failed to show that there was no genuine issues of material fact. In its ruli ng, the trial court did not, however, conclude as a matter of law that the access window and /or modified lift apron was an equipment safety guard. {¶ 8} The date for trial was ultimately set for November 18, 2019. O n November 1, 2019, appellant took the deposition of Rennell and subsequently filed a5. motion for leave to file summary judgment instanter. Appellee opposed the motion for leave. The trial court denied appellant’s motion on November 1 4, 2019. {¶ 9} Appellant next filed a motion in limine to exclude Rennell’s te stimony on November 11, 2019. Appellee opposed the motion and also filed a motion in limine to exclude testimony by appellant’s expert, Salvatore Malguarnera. On November 15, 2019, in judgment entries without opinion or analysis, the tria l court granted appellant’s motion and appellee’s motion, to the extent it sought to preven t expert testimony as to the ultimate issue for trial, but denied both motions to the extent that it sought to exclude Rennell’s and Malguarnera’s respective testimony in its entiret y. {¶ 10} Trial began on November 18, 2019. At the close of appellee’s c ase, appellant moved for a directed verdict. Appellant argued that appellee failed to produce evidence sufficient to establish appellant deliberately removed an equipment safety guard, or in the alternative, that appellant intended to injure appellee. On November 20, 2019, the trial court denied appellant’s motion for directed ve rdict. {¶ 11} On November 22, the jury found in favor of appellee and awarded $451,000 in damages. The trial court entered judgment consiste nt with the jury’s verdict on December 5, 2019. On December 23, 2019, the trial court fil ed an entry captioned: Opinion and Judgment Entry on Definition of “Equipment Safety G uard” and “Deliberate

Removal” Under R.C. 2745.01. 1

1 At the time the trial court issued its opinion, there was no p ending motion for ruling, and neither appellant nor appellee reference this decision in t he present appeal.6. {¶ 12} On January 2, 2020, appellant moved for judgment notwithstandin g the verdict. Appellee filed opposition on January 16, 2020. The t rial court denied this motion on April 17, 2020, expressly incorporating the December 23 entry. {¶ 13} On May 14, 2020, appellant filed a timely appeal. III. Assignments of Error {¶ 14} In challenging the trial court’s judgment, appellant asserts th e following assignments of error: I. The trial court erred by denying [appellant’s] motion for s ummary judgment, as there was no evidence to support the finding that [appellant] deliberately intended to injure appellee. II. The trial court erred by denying [appellant’s] motion to s trike the affidavit of Gerald Rennell during the summary judgment proceed ings. III. The trial court erred by permitting Gerald Rennell to tes tify at trial and provide opinion testimony on matters which were neith er relevant nor probative of [appellant’s] alleged intent to injure appelle e. IV. The trial court erred in finding the access window and the bolts affixed to the access window constituted equipment safety guard s under R.C. 2745.01(C) and that [appellant] deliberately removed the a ccess window and/or bolts, creating a rebuttable presumption that [ap pellant] intended to injure appellee.7. V. The trial court erred by denying [appellant’s] motion for d irected verdict at the close of plaintiff’s case in chief. VI. After the close of [appellant’s] case, the court erred in finding the access window was an equipment safety guard under R.C. 2745 .01(C), that [appellant] deliberately removed the access window, and th at [appellant] failed to adequately rebut the presumption [appella nt] intended to injure appellee. VII. The trial court erred by instructing the jury that [appel lant] deliberately removed an equipment safety guard and to presume [ appellant] removed and equipment safety guard with the intent to injure ap pellee. VIII. The trial court erred by denying [appellant’s] motion fo r judgement notwithstanding the verdict. IV. Analysis {¶ 15} We address appellant’s assignments of error out of order for cl arity. Because the trial court considered the affidavit in ruling on t he motion for summary judgment, we address the assigned error concerning the affidavi t first.

A. Motion to Strike Affidavit {¶ 16} In its second assignment of error, appellant argues that the tr ial court erred by denying appellant’s motion to strike the affidavit of Gerald Rennell. A trial court’s decision to deny a motion to strike will not be overturned abse nt abuse of discretion. Bank of Am., N.A. v. Hizer , 6th Dist. Lucas No. L-13-1035, 2013-Ohio-4621, ¶ 16, citing8. State ex rel. Mora v. Wilkinson , 105 Ohio St.3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 10. Abuse of discretion means that the trial court’s attitud e was unreasonable, arbitrary,

or unconscionable. Wilkinson at ¶ 10. {¶ 17} An affidavit offered in support of or in opposition to a motion for summary judgment must comply with Civ.R. 56 and the Rules of Evidence r egarding expert opinion testimony. Warren v. Libbey Glass, Inc. , 6th Dist. Lucas No. L-09-1040, 2009- Ohio-6686, ¶ 13. Civ.R. 56(E) states that an affidavit “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the m atters stated in the affidavit.” Under Evid.R. 703, “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by the expert or admitted in evidence at the hearing.” Additionally, Evid.R. 705 states that an “expert may testify in terms of opinion or inference and give his reasons therefore after discl osure of the underlying facts or data.” These rules require that affidavits set forth facts, not legal conclusions. Warren at ¶ 15, citing Youssef v. Parr , Inc. , 69 Ohio App.3d 679, 689, 591 N.E.2d 762 (8th Dist.1990). {¶ 18} In construing the statute at issue, this court previously held that the interpretation of the words “equipment safety guard” and “delib erate removal” in R.C. 2745.01 are specific questions of law, not questions of fact. Fickle v. Conversion Techs. Int’l, Inc. , 6th Dist. Williams No. WM-10-016, 2011-Ohio-2960, ¶ 25. Furt her, “such terms are not susceptible to definition by an expert witness.” Id. at ¶ 26. Thus, this court9. held that “the meaning of the terms ‘equipment safety guard’ an d ‘deliberate removal’ in R.C. 2745.01(C) [are] to be ascertained as a matter of law by t he court, and that the testimony of [an expert witness] is irrelevant to that determin ation.” Id. at ¶ 28. {¶ 19} Moreover, we have previously found that a trial court did not e rr in striking an expert affidavit in an employer intentional tort case. In Warren v. Libbey Glass, Inc. , 6th Dist. Lucas No. L-09-1040, 2009-Ohio-6686, we held that the trial court did not abuse its discretion in striking an expert affidavit of Gerald Rennell. The trial court gave various reasons for striking statements in the affidavit and ul timately struck the entire affidavit because it was comprised of improper statements. Id. at ¶ 18. Significantly, this court found that the expert made improper legal conclusions as to ultimate issues in the

case. Id. at ¶ 18, 23. Several statements in the affidavit gave opinion s on “defendant’s knowledge or awareness of the dangerous nature of a process or machine” which was an

ultimate issue in the case. Id. at ¶ 23. Thus, in part because the affidavit was made up of improper legal conclusions, we found the trial court did not ab use its discretion in striking the affidavit. {¶ 20} Other districts have decided similarly in cases where a trial c ourt struck an expert affidavit. Although these cases did not involve employe r intentional torts, they did concern specific, statutorily defined words as in the instant c ase. In Hinkston v. Sunstar Acceptance Corp. , 1st Dist. Hamilton No. C-990681, C-990701, 2000 WL 1886388, * 6 (Dec. 29, 2000), the First District Court of Appeals found that the trial court did not abuse its discretion in striking two expert affidavits that contained legal conclusions regarding10. the definition of a specific word in the statute at issue. The court determined that “[b]oth experts, overstepping their bounds, drew legal conclusions rega rding the definition of ‘cash price’ under ORISA.” Id. This was an improper attempt to have an expert interpret a statute, thus the affidavits were properly stricken. Id. , citing Dawson v. Williamsburg of Cincinnati Mgt. Co. , 1st Dist. Hamilton No. C-981022, 2000 WL 125891 (Feb. 4, 2000 ). {¶ 21} Additionally, in State ex rel. Simmons v. Geauga Cty. Dept. of Emergency

Servs. , 131 Ohio App.3d 482, 493, 722 N.E.2d 1063 (11th Dist.1998), t he Eleventh District Court of Appeals determined that several expert affida vits were not admissible evidence, as they were comprised of conclusory statements findi ng that certain things met the definition of a phrase in the statute at issue. The statut e at issue in the case defined the term “countywide public safety communications systems.” Id. Appellee offered affidavits that contained “conclusory statements concerning wha t equipment constitutes the public safety communications system.” Id. The court determined that the construction of the statute was a question of law and therefore the expert opinion was “not admissible to ‘assist’ the court in making its decision.” Id. , citing Sikorski v. Link Elec. & Safety Control Co. , 117 Ohio App.3d 822, 691 N.E.2d 749 (8th Dist.1997). {¶ 22} Here, the expert affidavit specifically opined that the employe r deliberately removed a safety guard. In it, Gerald Rennell stated “what is clear is that the decision to remove this equipment guard in this instance came as a result o f deliberate, intentional, and volitional actions.” With this affidavit, appellee attempt ed to establish that appellant deliberately removed an equipment safety guard. However, the i nterpretation and11. meaning of these phrases from R.C. 2745.01 is a question of law for the court to determine, not a question of fact for which expert testimony wo uld be permissible.

Fickle at ¶ 25. Further, Civ.R. 56 and the Rules of Evidence regardi ng expert opinion testimony require affidavits to set forth facts and not legal c onclusions. Warren , 6th Dist. Lucas No. L-09-1040, 2009-Ohio-6686, at ¶ 15, citing Youssef v. Parr , Inc. , 69 Ohio App.3d 679, 689, 591 N.E.2d 762 (8th Dist.1990). Thus, the exp ert affidavit, comprised of legal conclusions regarding statutory terms, is impermissibl e, and the trial court abused its discretion in denying appellant’s motion to strike the expe rt affidavit. {¶ 23} Accordingly, appellant’s second assignment of error is well-tak en. B. Summary Judgment {¶ 24} In its first assignment of error, appellant argues that the tri al court erred in denying its motion for summary judgement. On appeal, the stand ard of review for denial of a motion for summary judgement is de novo. Zuniga v. Norplas Industries , 2012- Ohio-3414, 974 N.E.2d 1252, ¶ 11 (6th Dist.). The appellate court will employ the same standard as the trial court, without deference to it. Mike McGarry & Sons, Inc. v. Constr. Resources One, LLC , 2018-Ohio-528, 107 N.E.3d 91, ¶ 56 (6th Dist.). {¶ 25} The standard for summary judgment is set forth in Ohio Civil Ru le 56(C), which provides in relevant part: Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, af fidavits, transcripts of evidence, and written stipulations of fact * * * show that there12. is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgme nt shall not be rendered unless it appears from the evidence or stipulat ion, and only from the evidence or stipulation, that reasonable minds can com e 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 most strongly in the party’s favor. {¶ 26} “[T]he moving party bears the initial burden of demonstrating t hat there are no genuine issues of material fact concerning an essential elem ent of the opponent’s

case.” Dresher v. Burt , 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once the moving party has satisfied the initial burden, the nonmoving pa rty must “ set forth specific facts showing that there is a genuine issue for trial and, if t he nonmovant does not so respond, summary judgment, if appropriate, shall be entered aga inst the nonmoving party .” Id. at 293. {¶ 27} The specific, relevant statute for this matter, R.C. 2745.01, p rovides in part: (A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages res ulting from an intentional tort committed by the employer during the c ourse of employment, the employer shall not be liable unless the plainti ff proves that the employer committed the tortious act with the intent to inju re another or with the belief that the injury was substantially certain to oc cur.13. (B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to su ffer an injury, a disease, a condition, or death. (C) Deliberate removal by an employer of an equipment safety gu ard or deliberate misrepresentation of a toxic or hazardous substan ce creates a rebuttable presumption that the removal or misrepresentation wa s committed with intent to injure another if an injury or an occu pational

disease or condition occurs as a direct result. {¶ 28} “[T]he General Assembly’s intent in enacting R.C. 2745.01, as e xpressed particularly in 2745.01(B), is to permit recovery for employer intentional torts only when an employer acts with specific intent to cause an injury, subje ct to subsections (C) * * *.”

Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 56. Under R.C. 2745.01(C), if the employee shows that the employer deliberately removed an equipment safety guard, the employee is entitled to a rebuttable presumption that there was intent to injure. In the instant ca se, appellee argued that subsection C applied to warrant the presumption of intent to in jure. {¶ 29} As noted by this court in Fickle , “[t]he General Assembly has not provided a definition of ‘equipment safety guard’ or ‘deliberate removal ’ for purposes of R.C. 2745.01(C).” Fickle , 6th Dist. Williams No. WM-10-016, 2011-Ohio-2960 at ¶ 24. Thus, interpretation of these undefined statutory terms are a q uestion of law, not a14. question of fact. Id. at ¶ 25. Further, “such terms are not susceptible to definiti on by an expert witness.” Id. at ¶ 26. {¶ 30} The Ohio Supreme Court held that the term “equipment safety gua rd” “means a device designed to shield the operator from exposure t o or injury by a dangerous aspect of the equipment.” Hewitt v. L.E. Myers Co. , 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, ¶ 2. Not all safety equipment in a workplace will be considered an “equipment safety guard.” Id. at ¶ 24 (“[t]o construe ‘equipment safety guard’ to include any generic safety-related item ignores not o nly the meaning of the words used but also the General Assembly’s intent to restrict l iability for intentional torts.”). {¶ 31} Further, the “‘deliberate removal’ of an equipment safety guard occurs when an employer makes a deliberate decision to lift, push asid e, take off, or otherwise eliminate that guard.’” Id. “Deliberate removal” of a safety guard requires evidence demonstrating a “careful and thorough decision to get rid of or eliminate an equipment safety guard.” Id. at ¶ 29. “Although ‘removal’ may encompass more than physical ly removing a guard from equipment and making it unavailable, such as bypassing or disabling the guard, an employer’s failure to train or instruct an employee on a safety procedure does not constitute the deliberate removal of an equi pment safety guard.” Id. at ¶ 29, citing Fickle at ¶ 45. {¶ 32} In this case, the trial court denied summary judgment and deter mined there were issues of fact regarding “deliberate removal,” based on “a n expert affidavit by15. Gerald Rennell opining that the guard at issue was deliberately removed by [appellant].” However, in finding issues of fact remained as to “deliberate r emoval,” based on expert opinion, the trial court failed to determine the issue of law c oncerning the meaning of “equipment safety guard,” relative to the facts in this case. {¶ 33} While there is not an exact consensus as to what qualifies as a n “equipment safety guard,” several Ohio courts have made case specific dete rminations regarding objects that do and do not constitute “equipment safety guards. ” In a Third District Court of Appeals case, the court found that a hand guard on a chainsa w was an equipment safety guard designed to protect employees by describing its fu nction: “[i]f a kickback occurs, causing the operator to lose control of the chainsaw, t he hand guard triggers the saw’s brake when contacted. This act prevents the operator fro m being cut by the saw.” Thompson v. Oberlanders Tree & Landscape, LTD. , 2016-Ohio-1147, 62 N.E.3d 630, ¶ 31 (3d Dist.). {¶ 34} In regard to objects that do not constitute an “equipment safet y guard,” the Ohio Supreme Court has ruled that safety devices such as orange cones, reflective vests, and retractable gates are not equipment safety guards. Houdek v. ThyssenKrupp Materials N.A., Inc. , 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, ¶ 27. T hat court also “declined to accept cases in which appeals courts de termined that the following were not equipment safety guards: a trench box designed to pro tect workers from a trench collapse; a jib crane and an observation platform (part of a system of safety devices implemented on a tire shredder); and a tire bead and be ad taper, parts of a wheel16. assembly unit.” Turner v. Dimex , LLC, 2019-Ohio-4251, 147 N.E.3d 35, ¶ 13 (4th Dist.), citing Barton v. G.E. Baker Constr. , 9th Dist. Lorain No. 10CA009929, 2011- Ohio-5704; Downard v. Rumpke of Ohio, Inc. , 2013-Ohio-4760, 3 N.E.3d 1270 (12th Dist.); Roberts v. RMB Enters. , 197 Ohio App.3d 435, 2011-Ohio-6223, 967 N.E.2d 1263 (12th Dist.). {¶ 35} These cases are illustrative of what does not constitute an “equipment safety guard” and can provide guidance in this court’s analysis as to whether the modified lift guard constitutes such a safety device as defined within t he statute. The modified lift apron with the added bolts on the access window can be fairly c haracterized to be part of a system of implemented safety devices. The access window itse lf would not be a safety device as it was designed to allow the operator to see inside t he machine and it was designed to open and close, for access to the inside of the mac hine. Two of the lift aprons were modified with bolts following the 2013 accident to help prevent a similar incident, but the addition of bolts to the access window did no t transform the access window into an equipment safety device. {¶ 36} The spare lift apron did not have any modifications from the or iginal design, and instead, simply utilized the originally designed la tch mechanism to secure the access window. This original latch design is certainly not “a device designed to shield the operator from exposure to or injury by a dangerous aspect o f the equipment.” Hewitt , 134 Ohio St.3d 199, 2012-Ohio-5317, 981 N.E.2d 795, at ¶ 2. Fu rthermore, the added bolts on the modified lift aprons did not prevent an employee f rom opening the access17. window, they simply made it more difficult to do so. The purpo se and design of the access window was to allow an employee to open it, and this pur pose was not changed

with the addition of bolts. {¶ 37} While there is no bright line rule established by R.C. 2745.01 or case law to determine what objects constitute an “equipment safety guard,” we find that the modified lift apron at issue in the current case is not an equipment saf ety guard. Considering the fact that a trench box specifically designed to protect employe es and parts of a system of safety devices implemented on a tire shredder do not constitute equipment safety guards, a lift apron designed to see inside of and allow access to a ma chine does not become an object designed to shield the employee simply because bolts wer e added to it. See Turner at ¶ 13, citing Barton and Downard . A determination that the modified lift apron with bolts on the access window constitutes an equipment safety guar d would “ignore[] not only the meaning of the words used [in the employer intentional tort statute] but also the General Assembly’s intent to restrict liability for intentional torts.” Hewitt at ¶ 24. {¶ 38} “A broad interpretation of the phrase does not comport with the General Assembly’s efforts to restrict liability for intentional tort b y authorizing recovery ‘ only when an employer acts with specific intent.’” Id. at ¶ 25, quoting Stetter v. R.J. Corman

Derailment Servs. , L.L.C. , 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 26 (emphasis in original). Again, it is important to note that no t every “generic safetyrelated item” constitutes an equipment safety guard. Id. at ¶ 24.18. {¶ 39} We decline to broaden R.C. 2745.01 beyond the limits intended b y the legislature by holding that the modified lift apron is an equip ment safety guard, especially in light of the evidence relevant to this appeal. In the insta nt case, the only evidence appellee offered to show that the modified lift apron constitut es an equipment safety guard was the expert testimony of Gerald Rennell. In its denia l of appellant’s motion for summary judgement, the trial court specifically relied on the a ffidavit of Rennell by stating “[appellee] filed an expert affidavit by Gerald Rennell opining that the guard at issue was deliberately removed by [appellant].” However, as we have already determined that this affidavit should have been stricken, it sh ould not have been considered by the trial court in its analysis of the motion for summary judgment. Without the affidavit, appellee presented no evidence that the modified lift apron is an equipment safety guard. Accordingly, we find that the modified lift apro n does not constitute an equipment safety guard based upon our own interpretation of the applicable statute. {¶ 40} Given that we have determined that the modified lift apron is n ot an equipment safety guard, appellee was not entitled to the presum ption that removal of an equipment safety guard was committed with an intent to injure. R.C. 2745.01(C). We now turn to the question of whether there was any evidence to s how deliberate intent to harm appellee, as appellee argued that R.C. 2745.01(A) applied to this case. {¶ 41} The Ohio Supreme Court has stated “absent a deliberate intent t o injure another, an employer is not liable for a claim alleging an empl oyer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system.”19. Houdek , 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1253, at ¶ 25. “An injured employee cannot recover for an on the job injury unless he or s he demonstrates that the employer acted with ‘a conscious or deliberate intent directed toward the purpose of inflicting an injury.’” Forwerck v. Principle Business Ents. , 6th Dist. Wood No. WD-10-040, 2011-Ohio-489, ¶ 10, quoting Kaminski v. Metal & Wire Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 100. {¶ 42} In determining whether appellee proved deliberate intent to inj ure by appellant, it is helpful to consider cases that have confronted this issue. The instant case can be compared to other cases where there was a lack of eviden ce to show deliberate intent to injure. In Houdek , the Ohio Supreme Court found that the employer may have placed the employee in a potentially dangerous situation, but t hat fact does not demonstrate that there was deliberate intent to injure the empl oyee. Houdek at ¶ 26. The employee presented no evidence that the employer deliberately i ntended to injure him when management directed him to work in the area where he susta ined injury. Id. The court asserted that the employee’s injuries were “the result of a tragic accident, and at most, the evidence shows that this accident may have been avoid ed had certain precautions been taken.” Id. at ¶ 28. But there was no liability for the employer because the employee did not prove the intent element. Id. {¶ 43} Additionally, in a Seventh District Court of Appeals case, the court held that an employer’s failure to place guardrails around a perch a nd scaffolding was not deliberate removal as the guardrails were never in place and we re not required or20. provided by the manufacturer. Wineberry v. N. Star Painting Co. , 2012-Ohio-4212, 978 N.E.2d 221, ¶ 39 (7th Dist.). This is analogous to the current case, as the spare lift apron on the machine at the time of appellee’s injury was never modif ied to include added bolts like the other two lift aprons appellant maintained. There is also no indication that the bolts were provided or required by the manufacturer. {¶ 44} While it may be true that the injury in this case could have be en avoided if certain precautions had been taken, case law is clear that such facts do not establish the “intent to injure” element of the statute. In this case, there is no evidence that appellant intended to injure appellee. The fact that appellant failed to bolt down the spare lift apron may constitute some level of negligence, but it is equally clea r that negligent conduct does not support a claim based on an intentional tort. See Stetter , 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, at ¶ 66 (“[a]n employee who c annot demonstrate

deliberate intent under R.C. 2745.01 has the same status as an employee injured by the negligence of his employer. Both employees must seek recovery pursuant to Ohio’s workers’ compensation statutes.”); Houdek at ¶ 23, quoting Kaminski v. Metal & Wire

Prods. Co. , 125 Ohio St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 100 (“ liability of the employer cannot * * * be stretched to include accidental in juries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, o r malicious negligence * * * or other misconduct of the employer short of a conscious and de liberate intent directed to the purpose of inflicting an injury.”).21. {¶ 45} Given that the modified lift apron does not constitute an equip ment safety guard and there was no evidence of intent to injure appellee, t he trial court erred in denying appellant’s motion for summary judgment. Because summa ry judgment should have been granted in appellant’s favor, this case should not ha ve been given to a jury. Therefore, the judgment in favor of appellee is vacated. {¶ 46} Accordingly, appellant’s first assignment of error is well-take n. As resolution of the first assignment of error is dispositive, all remaining assignments of

error are therefore denied as moot.

V. Conclusion {¶ 47} For the foregoing reasons, the judgment of the trial court, den ying appellant’s motion for summary judgment, is reversed. We there fore vacate the judgment entered in favor of appellee and enter judgment for appellant. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment reversed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.22. Bliss v. J ohns Manville C .A. No. L-20-1091

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.