[Cite as Cornell v. Mississippi Lime Co., 2017-Ohio-7160.]

STATE OF OHIO, COLUMBIANA COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

JERRY CORNELL ) CASE NO. 16 CO 0005 

) 

PLAINTIFF-APPELLANT ) 

) 

VS. ) OPINION 

) 

MISSISSIPPI LIME COMPANY, et al. ) 

) 

DEFENDANTS-APPELLEES ) 

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common 

Pleas of Columbiana County, Ohio 

Case No. 13 CV 597 

JUDGMENT: Affirmed. 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: August 7, 2017 
[Cite as Cornell v. Mississippi Lime Co., 2017-Ohio-7160.]

APPEARANCES: 

For Plaintiff-Appellant, Jerry Cornell: Atty. Neal E. Shapero 

Atty. Abby L. Botnick 

Atty. Andrew Thompson 

Shapero & Roloff Co., LPA 

1350 Euclid Avenue, Suite 1550 

Cleveland, Ohio 44115 

Atty. Jeffrey Bruzzese 

100 N. 4th Street, #300 

Steubenville, Ohio 43952 

For Defendant-Appellee, Atty. Lawrence A. Sutter 

Mississippi Lime Co.: Atty. Daniel A. Leister 

Atty. Sutter O'Connell 

1301 East 9th Street 

3600 Erieview Tower 

Cleveland, Ohio 44114 

For Defendant-Appellee, Atty. Paul D. Eklund 

Wellsville Terminal Co.: Atty. Deanna K. Richards 

Collins, Roche, Utley & Garner, LLC 

800 Westpoint Parkway 

Suite 1100 

Cleveland, Ohio 44145 
[Cite as Cornell v. Mississippi Lime Co., 2017-Ohio-7160.]

WAITE, J. 

{¶1} Appellant Jerry Cornell appeals the February 18, 2016 judgment entry 

of the Columbiana County Court of Common Pleas granting summary in favor of 

Appellees Mississippi Lime Company (“plant owner”) and Wellsville Terminal 

Company (“employer”) in this negligence and employer intentional tort action. For 

the following reasons, the judgment of the trial court is affirmed. 

Facts 

{¶2} This case arises from serious workplace injuries suffered by Appellant 

on August 29, 2012 at a lime plant, when he was swept to the ground by a slurry 

consisting of thousands of gallons of scalding water and lime rushing from the drain 

of a lime hopper. Appellant suffered second and third degree burns over 68% of his 

body. 

{¶3} Appellant sued both plant owner and his employer after this incident. 

Appellant asserts that plant owner was negligent because it was responsible for the 

maintenance of the lime hopper and conveyor system. It knew the hopper was in a 

state of disrepair and prone to clog with lime and knew that employer was using an 

unsafe method to clear these clogs, which was to dump thousands of gallons of river 

water into the hopper. Appellant contends that his employer committed an intentional 

tort because it is presumed to have acted with intent to injure pursuant to R.C. 

2745.01(C) where it knowingly misrepresented the nature of a hazardous chemical.

{¶4} Employer owns a terminal along the Ohio River. Plant owner is a large 

lime company headquartered in Missouri. For several decades plant owner has 

leased a portion of employer’s land. Plant owner has placed its own equipment for 
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unloading and storing lime, including the lime hopper and conveyor at issue in this 

case, on employer’s property (“lime plant”). Plant owner transfers lime to the lime 

plant by barge, where employer unloads it into the hopper, onto a conveyor, and into 

silos where it is later transferred out via rail or truck. 

{¶5} The land lease agreement (“lease”) in effect between plant owner and 

employer at the time of Appellant’s accident provides that plant owner will use and 

occupy the lease premises in a careful, safe, and proper manner and will conform to 

and obey all present and future laws, ordinances, rules, regulations, requirements 

and orders of the United States of America, the State of Ohio, and the Village of 

Wellsville, and of all governmental authorities or agencies. 

{¶6} Plant owner and employer also entered into an Independent Contractor 

Agreement (“agreement”) under which employer agreed to provide all labor and 

services necessary to receive and unload plant owner’s lime from the barges, 

transfer the lime for storage, and eventually load the lime into rail cars and trucks for 

delivery. Under the terms of this agreement, plant owner maintained control over the 

equipment used in the facility, was allowed reasonable access to the terminal 

facilities, and was required to repair or replace, at its own expense, the conveyance 

equipment and storage bins if they became worn out, broken, or otherwise unfit for 

use during the term of the agreement. The agreement was in effect at all times 

relevant to this case. 

{¶7} There was no lid on the hopper when it was not in use, so the lime 

deposited in the hopper was exposed to rain and snow. According to the testimony 
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of Jay Muse, one of the owners of employer, there once had been a lid on the hopper 

but it inexplicably disappeared. (J. Muse Depo., pp. 19-22.) When residual lime in 

the hopper got wet, it became thick and built up inside the equipment. Mechanical 

vibrators on the side of the hopper, designed to vibrate loose particles of lime to the 

bottom, were frequently inoperable. A shaker table, which was to evenly distribute 

lime onto the conveyor belt, did not function. 

{¶8} Appellant complained to his supervisor, Craig Homic, about the 

condition of the equipment. (Cornell Depo., p. 66.) Homic testified that “everybody 

knew that [the lime plant] was a piece of shit.” (Homic Depo., p. 190.) However, Jeff 

Fultz, a crane operator and union representative, testified that he had never received 

a grievance regarding safety from any employee. (Fultz Depo., p. 37.) 

{¶9} Lime frequently clogged the hopper. Employees removed clogs by 

dropping crane buckets full of thousands of gallons of river water into the top of the 

hopper, flushing the clogged lime out of the drain at the bottom of the hopper. Homic 

was taught to clear clogs in the lime hopper in this manner when he was employed 

as a superintendent, and he instructed Appellant to clear clogs the same way when 

Appellant became foreman. (Homic Depo., pp. 79-80.) 

{¶10} Employees did not commonly wear personal protective equipment 

(“PPE”) when flushing the hopper, only when working directly with lime. (Cornell 

Depo., p. 25; Fultz Depo., p. 97.) Homic testified that the process was safe as long 

as proper precautions were taken; that is, when employees maintained a safe 

distance from the hopper during a flush. In fact, prior to Appellant, no employee was 
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ever injured during the flushing process. (Homic Depo., pp. 97-98, 161-162, 174-

176.) 

{¶11} Fultz testified that employees, including Appellant, occasionally stood at 

the base of the hopper and used the high-pressure hose to unclog the drain, but this 

was only when the hopper was empty. No employee ever used the high-pressure 

hose when the hopper contained a crane bucket of river water. (Fultz Depo., pp. 43-

44, 80.) 

{¶12} Lime is a hazardous material. When exposed to water, it creates an 

exothermic reaction, giving off enough heat to create steam. The lime reacts with the 

water to form calcium hydroxide. The crane bucket is estimated to hold about 

eighteen cubic yards. One cubic yard is equivalent to about 200 gallons of water. 

Plant owner had prepared Material Safety Data Sheets (“MSDS”) for its lime, 

however Homic could not recall whether plant owner provided them to employer. Id.

at 86-87. 

{¶13} Every month, plant owner paid employer between $500.00 and 

$3,500.00 for plant maintenance. According to Homic, employees were responsible 

for routine maintenance, which included cleaning and greasing the equipment, and 

tightening belts. Id. at 43, 188-189. Any equipment repair had to be authorized or 

approved by plant owner. If problems arose with the equipment, the issues were 

reported to Homic, who notified plant owner. Homic typically dealt with Jeff Corrie, 

plant owner’s Traffic Manager. 
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{¶14} Homic testified that he advised Corrie years before Appellant’s accident 

of the condition of the lime hopper and clogging problem, and he also told Corrie 

about the method used for clearing out clogs. Id. at 57-58. While Corrie did not 

recall being told about the flushing procedure, he conceded that it created a 

dangerous situation. (Corrie Depo., p. 51.) For purposes of summary judgment, we 

must assume plant owner was aware of the condition of the lime plant, the clogging 

problem, and the flushing procedure used to unclog the hopper. 

{¶15} Richard Donovan, plant owner’s Safety and Health Manager, stated 

that he would not condone such a procedure, and that it does not follow plant 

owner’s guidelines for safe use of handling lime. (Donovan Depo., p. 34.) Jeff Dahl, 

plant owner’s Director of Mid-East Operations, testified that the process of clearing 

the hopper should have not been undertaken by employees due to the potential 

hazards created by combining water and lime. (Dahl Depo., p. 28.) 

{¶16} In 2001, plant owner’s Safety Supervisor, Jeff Gurley, performed an 

inspection at the facility. Gurley noted numerous problems in the operation: 

employer did not have any formal training program for employees working at the lime 

plant; it did not undertake a hazard assessment on the use of PPE; and it was not in 

compliance with the Occupational Safety and Health Administration (“OSHA”) 

regulations pertaining to a hazard communication program, making MSDS sheets 

available to employees, and training for employees that handled hazardous 

substances. (Gurley Depo., Exh. 2.) 
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{¶17} Gurley admitted that his findings were troubling, particularly because 

the problems he identified could lead to employee injuries. (Gurley Depo., p. 41.) 

Gurley verbally informed employer’s management of his findings at the time of his 

visit and later drafted a report, a copy of which was provided to employer as well as 

Gurley’s plant owner supervisors. Id. No action was taken to address the 

deficiencies in the operation. 

{¶18} Somewhere between 2006 and 2008, plant owner sent Corrie and VP 

of Sales, William Ayers, to the facility. Ayers was overheard telling Corrie that plant 

owner would not be putting more money into the facility. (Charles Muse Depo., pp. 

26-27.) Homic heard them remark that there was not enough revenue generated 

through the facility to warrant any additional investment. (Homic Depo., pp. 67-70.) 

{¶19} Appellant was hired as a foreman in 2006. Appellant had a GED and 

no previous supervisory experience. He was not given any technical training in 

safety or the safe handling of lime. Nevertheless, he was charged with overseeing 

the terminal operation and was responsible for training employees (crane operators 

and laborers), in the proper use of PPE. Appellant was likewise responsible for 

enforcing safety rules and overseeing employees to ensure that jobs were performed 

in a safe manner. 

{¶20} Homic was Appellant’s immediate supervisor and was primarily 

responsible for keeping the terminal operational. Homic, too, had only a GED. Like 

Appellant, he had no training specific to hazardous materials or workplace safety. 
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{¶21} Employees were trained and instructed to wear PPE when working 

around lime. This included wearing a hardhat, chemical resistant gloves, safety 

glasses, a Tyvek suit, and a respirator mask and filter. (Cornell Depo., pp. 41-44; 

Homic Depo., pp. 156, 177; Fultz Depo., pp. 31-33.) Appellant was specifically 

charged with the duties of not only training the employees on the proper use of PPE, 

but also in ensuring that employees were wearing their PPE when required. (Fultz 

Depo., p. 128.) Employees were required to acknowledge safety guidelines set forth 

in an employee handbook. Appellant had executed an acknowledgement of the 

safety guidelines prior to the accident. (Cornell Depo., p. 60.) 

{¶22} Warning signs were posted in and around the lime plant advising that 

the plant contains hazardous chemicals. Appellant testified that, prior to his accident, 

he had been specifically instructed that PPE was required when working with lime 

because lime would cause skin burns if exposed to moisture, such as the sweat on 

skin. (Cornell Depo., pp. 45-49, 137.) Despite the lack of technical training, 

Appellant testified that prior to his accident, he was aware that if lime contacted his 

skin, it would burn his flesh: 

Q. Who was it that told you you were supposed to wear the suits and 

the gloves when you're directly around lime? 

Well I think direct -- when we're working in lime. Craig, when we're 

working in lime, everybody, when you're working in lime, you wear the 

suits when you [sic] working in lime. It's well-known, you're working in 

lime, you wear the suits when you're working in lime. If you're not 
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working in lime, it wouldn't make no sense to wear a suit. I mean, that 

would be common sense. 

(Cornell Depo., p. 45.) 

{¶23} Appellant testified further that: 

Q. When you're working in the lime, why would people wear suits if 

you're working in the lime? 

A. Because they got burnt when they were in the lime. 

Q: Do I understand from that then that you knew that lime was a 

substance that could burn you? 

A. And they didn't even get burnt when they were in the lime unless it 

was wet. 

Q. Okay, let me back up, I asked you a different question. My question 

was -- and let me back up. 

You indicated to me that people, when they work in the lime, wear the 

gloves and wear the suits, correct? 

A. When they were working in the lime, correct. 

Q: Right. And the reason that they wear the gloves and the suits when 

they work in the lime is because the lime can burn you if the lime was 

exposed to water? 

A. Yes, or sweat. 

Q. Or sweat. 

A. Sweat, yes. 
-9-

Q. Any kind of moisture? 

A. Yes, correct. 

Q. And that's something you knew way back in 2006 when you 

started? 

A. Correct. 

Id. at 49-50. 

{¶24} Later in his deposition, Appellant continued: 

Q. You did learn, however, from the time that you started at Wellsville 

Terminal up to the time of the accident, you had learned that lime and 

water causes heat and can cause burns? 

A. Correct. 

* * * 

Q. And nobody tried to tell you the lime wasn't going to burn people if it 

hit water, correct? 

A. Correct. 

Q. Nobody ever hid that fact from you? 

A. Yeah, true. 

* * * 

Q. Did other employees tell you that lime and water don't mix? 

A. That’s no. We know. 

Q. You knew that? 

A. I knew that, yeah, I know that. 
-10-

Q. And nobody told you anything differently? 

A. True. 

Id. at 136-137. 

{¶25} When the lime hopper became clogged, employer required that 

employees stand well away from it while a crane operator dumped a bucket of water 

into the hopper to flush it out. (Cornell Depo., pp. 153-154; Fultz Depo., p. 40; Homic 

Depo., p. 78.) Additional buckets of water were added, if needed, until the clog 

cleared. (Homic Depo., pp. 80-81, Foltz Depo., p. 42.) Homic testified that he had 

emptied six to eight crane buckets of river water into the hopper to remove previous 

clogs. (Homic Depo., p. 87.) Employees were instructed to wait until the clog was 

cleared before returning to the lime hopper. (Fultz Depo., p. 61.) 

{¶26} Two days before the incident, a barge containing lime was partially 

unloaded, but the operation was suspended due to a heavy rain. After the rain 

subsided, Appellant ordered laborers to prepare the lime plant in order to finish 

unloading the barge. 

{¶27} Jim Shaw, a laborer, used a hose to clear the excess lime stuck on the 

shaker table that had accumulated because the shaker table did not function 

properly. Fultz called Appellant and told him that there was a significant amount of 

lime left in the hopper from the attempts to unload the barge two days earlier. 

{¶28} Appellant called Homic and advised him that there was a considerable 

amount of lime in the hopper. Appellant told Homic that the only way he knew to 
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clear the lime was to flush it with river water. (Cornell Depo., p. 145.) Homic replied, 

“[d]o whatever you got to do to get that running.” Id.

{¶29} Because the hopper lid was missing, the lime had been exposed to rain 

over several days. Appellant admitted that he stood in a position level with the top of 

the hopper, but well clear of the opening, because he was aware of the possibility of 

injury. Id. at 153. Per employer’s practice, Fultz loaded river water into the crane 

bucket and dropped the water into the top of the hopper. 

{¶30} Appellant looked into the hopper and saw steam, which he described as 

“bad” and “a mess.” Id. at 154. Appellant conceded that he knew that a heat 

reaction was occurring, and that “[i]t’s a dangerous situation.” Id. He also stated that 

he was “panicking” when he learned that the clog had not been cleared. Id. at 158. 

{¶31} Appellant then walked over to the base of the hopper and lifted the lid of 

the inspection box which allowed him to see the clog. Appellant testified that the 

quicklime clogging the opening looked like “cake batter.” Id. at 157. Appellant did 

not see any water or quicklime coming though the drain at the bottom of the hopper. 

{¶32} Appellant quickly put down the inspection box lid and moved away from 

the hopper. Id. at 158. Appellant testified, “* * * I hurried up and got out of there, 

because I knew get out there, you know. * * * Because something could happen, 

yeah, because I didn’t want to be there to begin with, you know, whoa.” Id.

{¶33} Rather than dumping a second crane bucket of water into the hopper 

pursuant to employer’s usual procedure, and rather than waiting until the clog cleared 

before approaching the hopper or calling Homic for further instructions, Appellant 
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stood near the base of the hopper, picked up a nearby high-pressure hose, and 

started spraying water up at the clog in the drain at the base of the hopper. Appellant 

testified, “[t]he only thing I could do to think to get it out of there was pick up that hose 

and start trying to blast it, blasted that cake batter to try to get a wee little hole 

knocked in it to try to get it to flow, so I start blasting.” Id. at 159. 

{¶34} Fultz exited the crane and walked to where he could see Appellant. 

Fultz testified that he saw the chemical reaction, which produced about ten feet of 

steam. He told Appellant to move away from the drain of the hopper. Appellant 

responded, “I know. I know.” (Fultz Depo., p. 121.) However, Appellant remained in 

the same location, moving only a few steps away from his original spot. Fultz 

testified that he was thinking “this ain’t good, this ain’t good,” when the clog broke 

loose. Id. at 122. 

{¶35} Appellant provided similar testimony: 

I'm breaking a little bit loose. By the time I start breaking it loose, it 

dawns on me, Jeff starts screaming at me, get out of there, at the same 

time I start thinking it the same time, get out of there, too, because this 

might not be safe, at the same time we both start thinking it, I start 

backing loose [sic], but by that time it was too late, it broke loose. 

(Cornell Depo., p. 162.) 

{¶36} When the clog broke, Appellant heard a “woosh” and was swept off his 

feet by a stream of steaming water and quicklime. Fultz quickly obtained and poured 

vinegar on Appellant, sprayed him down with water, and removed his clothing. 
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Because Appellant was badly burned, emergency services were contacted and he 

was sent by life flight to West Penn Hospital Burn Center in Pittsburgh. 

{¶37} Neither Appellant nor any other employee was ever trained or 

instructed to use a hose to spray water at a clog in the hopper when the hopper 

contained a crane bucket of river water. (Homic Depo., pp. 81-83; Fultz. Depo., p. 

80.) In fact, Homic explained at deposition that this process was in violation of safety 

protocols and that anyone caught using this method to clear the hopper would have 

been immediately terminated from employment. (Homic Depo., p. 176.) Moreover, 

despite his awareness of the danger posed by wet lime, Appellant decided to spray 

water at the clog without first donning PPE. (Cornell Depo., p. 158.) 

{¶38} As a result of Appellant’s injuries, he spent weeks in a medicallyinduced coma at the West Penn Burn unit while he underwent numerous skin grafts. 

He is permanently disabled from his extensive burns, loss of touch and sensation, 

inability to regulate his body temperature due to the loss of his ability to sweat in the 

areas of his skin grafting, and respiratory injuries from inhaling the lime mixture. He 

has also dealt with significant and ongoing post-traumatic stress disorder and chronic 

depression, which by itself has been debilitating. 

{¶39} After the incident, OSHA conducted an inspection of the facility. 

Employer was cited for a lengthy list of serious safety violations, including: failure to 

assess the workplace for the necessity of personal protective equipment; the lack of 

a workplace hazard assessment for the process of clearing clogs in the hopper with 

water; the failure to develop, implement, and/or maintain at the workplace a written 
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hazard communication program for employees working with lime; the failure to 

ensure that containers, including the hopper, were labeled, tagged or marked with 

the identity of hazardous materials contained therein; the failure to ensure that MSDS 

sheets for lime were made readily available to employees; the failure to inform 

employees of the hazards of lime, or the special precautions to be taken when water 

was added to the material when clearing a clog; the failure to train supervisors in 

accident prevention; and the failure to ensure that employees exposed to lime while 

clearing the hopper were using personal protective equipment. (11/17/15 Plaintiff's 

Opposition to Defendant, Wellsville Terminal Company’s Motion for Summary 

Judgment, Exh. O, numbered 16-23.) 

{¶40} After the accident, plant owner provided comprehensive safety training 

to employees, including information about the safe handling of lime. The training was 

implemented pursuant to policies plant owner had used in other locations prior to 

Appellant’s accident. After Appellant’s accident, employees were instructed not to 

use water to clear the equipment in the event of a clog and were told to contact an 

outside contractor to professionally clean the equipment, instead. 

{¶41} John Carson, Ph.D., a mechanical engineer with approximately 40 

years of experience consulting in the storage, flow and processing of bulk solids such 

as lime, was retained by Appellant to review the evidence in this case and prepare a 

report. With respect to plant owner, he identified several failures that contributed to 

the frequent clogging of the hopper, including rust and dents along the walls of the 

hopper, the lack of a lid or other covering, and lack of maintenance of the hopper 
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vibrator and shaker table functions. However, he conceded at his deposition that a 

well-maintained, fully-functioning hopper with a lid could nevertheless become 

clogged with lime. (Carson Depo., pp. 66-71.) 

{¶42} Dr. Carson opined that plant owner knowingly permitted a hazardous 

condition to exist, and had Appellant perform a dangerous job that plant owner knew 

was substantially certain to cause injury. Dr. Carson also concluded that employer 

failed to ensure that its employees were properly trained on the hazards associated 

with handling lime, particularly when it ordered them to mix the lime with water. 

{¶43} Appellant advances three assignments of error on appeal. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE 

MISSISSIPPI LIME COMPANY'S MOTION FOR SUMMARY 

JUDGMENT. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE 

WELLSVILLE TERMINAL COMPANY'S MOTION FOR SUMMARY 

JUDGMENT. 

ASSIGNMENT OF ERROR NO. 3 

THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE 

MISSISSIPPI LIME COMPANY'S MOTION FOR SUMMARY 

JUDGMENT ON PUNITIVE DAMAGES, WHICH IS A JURY 

QUESTION. 
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Summary Judgment 

{¶44} This appeal is from a trial court judgment resolving a motion for 

summary judgment. An appellate court conducts a de novo review of a trial court’s 

decision to grant summary judgment, using the same standards as the trial court set 

forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 

N.E.2d 241 (1996). Before summary judgment can be granted, the trial court must 

determine that: (1) no genuine issue as to any material fact remains to be litigated, 

(2) the moving party is entitled to judgment as a matter of law, (3) it appears from the 

evidence that reasonable minds can come to but one conclusion, and viewing the 

evidence most favorably in favor of the party against whom the motion for summary 

judgment is made, the conclusion is adverse to that party. Temple v. Wean United, 

Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material” 

depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & 

Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th Dist.1995). 

{¶45} “[T]he moving party bears the initial responsibility of informing the trial 

court of the basis for the motion, and identifying those portions of the record which 

demonstrate the absence of a genuine issue of fact on a material element of the 

nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75 Ohio St.3d 280, 

296, 662 N.E.2d 264 (1996). If the moving party carries its burden, the nonmoving 

party has a reciprocal burden of setting forth specific facts showing that there is a 

genuine issue for trial. Id. at 293. In other words, when presented with a properly 

supported motion for summary judgment, the nonmoving party must produce some 
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evidence to suggest that a reasonable factfinder could rule in that party’s favor. 

Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th 

Dist.1997). 

{¶46} The evidentiary materials to support a motion for summary judgment 

are listed in Civ.R. 56(C) and include the pleadings, depositions, answers to 

interrogatories, written admissions, affidavits, transcripts of evidence, and written 

stipulations of fact that have been filed in the case. In resolving the motion, the court 

views the evidence in a light most favorable to the nonmoving party. Temple, 50 

Ohio St.2d at 327. 

Plant Owner’s Negligence 

{¶47} Appellant argues that a combination of four factors establishes plant 

owner’s common law premises liability and its statutory liability pursuant to R.C. 

4101.11 (“frequenter statute”): (1) its ownership of the equipment; (2) its contractual 

duty to maintain and repair the equipment; (3) its knowledge of employer’s dangerous 

method of flushing the hopper; and (4) the foreseeability of Appellant’s injuries. 

However, the trial court concluded that plant owner owed no duty of care to 

Appellant. 

{¶48} It is important to note that the statutory duty owed to frequenters “is no 

more than a codification of the common-law duty owed by an owner or occupier of 

premises to invitees, requiring that the premises be kept in a reasonably safe 

condition, and that warning be given of dangers of which he has knowledge.” Eicher 
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v. United States Steel Corp., 32 Ohio St.3d 248, 249, 512 N.E.2d 1165 (1987). 

Therefore, a separate analysis under the frequenter statute is unnecessary. 

{¶49} To establish actionable common law negligence, a plaintiff must show 

the existence of a duty, breach of that duty, and that an injury occurred that was the 

proximate result of that breach. Di Gildo v. Caponi, 18 Ohio St.2d 125, 247 N.E.2d 

732 (1969). The existence of a duty in a negligence action is a question of law for 

the court to determine. Railroad Co. v. Harvey, 77 Ohio St. 235, 240, 83 N.E. 66 

(1907). 

{¶50} A defendant’s duty to a plaintiff depends on the relationship between 

the parties and the foreseeability of injury to someone in the plaintiff’s position. 

Huston v. Konieczny, 52 Ohio St.3d 214, 217, 556 N.E.2d 505 (1990). “Injury is 

foreseeable if a defendant knew or should have known that his act was likely to result 

in harm to someone.” Id. 

{¶51} “The test for foreseeability is whether a reasonably prudent person 

would have anticipated that an injury was likely to result from the performance or 

nonperformance of an act.” Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 

75, 77, 472 N.E.2d 707 (1984). “It is not necessary that the defendant should have 

anticipated the particular injury. It is sufficient that his act is likely to result in an injury 

to someone.” Mudrich v. Standard Oil Co., 153 Ohio St. 31, 39, 90 N.E.2d 859 

(1950). 

{¶52} The rule of proximate cause “ ‘requires that the injury sustained shall be 

the natural and probable consequence of the negligence alleged; that is, such 
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consequence as under the surrounding circumstances of the particular case might, 

and should have been foreseen or anticipated by the wrongdoer as likely to follow his 

negligent act.’ ” Jeffers v. Olexo, 43 Ohio St.3d 140, 143, 539 N.E.2d 614 (1989). “In 

determining whether an intervening cause ‘breaks the causal connection between 

[breach of duty] and injury depends upon whether that intervening cause was 

reasonably foreseeable by the one who was guilty of the [breach].” Mussivand v. 

David, 45 Ohio St.3d 314, 321, 544 N.E.2d 265 (1989). 

{¶53} Premises tort claims where the alleged negligence arises from static or 

passive conditions, such as preexisting latent defects, are legally distinct from claims 

alleging active negligence by some act or omission. The distinction between static 

and active forms of negligence is legally significant, because it directly relates to the 

two separate and distinct duties an occupier owes its business invitees: (1) static 

conditions are tied to the owner’s duty to maintain its premises in a reasonably safe 

condition, including the obligation to warn invitees of latent or hidden dangers, while 

(2) active negligence concerns the owner’s duty not to injure its invitees by negligent 

activities conducted on the premises. Perry v. Eastgreen Realty Co., 53 Ohio St.2d 

51, 52, 372 N.E.2d 335 (1978). 

{¶54} Appellant contends he is raising an active negligence claim. However, 

Appellant bases plant owner’s alleged duty on its ownership of the hopper and its 

failure to maintain the hopper, as well as its failure to warn employees of the 

dangerous properties of lime. In actuality, then, Appellant’s negligence claim dealing 
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with the equipment states a claim for static negligence. His claim is not based on the 

activities taking place but on the state of the premises being used for the activity. 

Wellman Exception 

{¶55} Appellant concedes that his employer is an independent contractor of 

plant owner. This should serve to exempt plant owner from liability. Under the 

common law of negligence: 

Where an independent contractor undertakes to do work for another in 

the very doing of which there are elements of real or potential danger 

and one of such contractor’s employees is injured as an incident to the 

performance of the work, no liability for such injury ordinarily attaches to 

the one who engaged the services of the independent contractor. 

Wellman v. East Ohio Gas Co., 160 Ohio St. 103, 113 N.E.2d 629 (1953), paragraph 

one of the syllabus. 

{¶56} An exception to this rule exists where the owner “actively participates” 

in the project assigned to the independent contractor, or controls a critical variable in 

the work environment. Sopkovich v. Ohio Edison Co., 81 Ohio St.3d 628, 642-643, 

693 N.E.2d 233 (1988). For purposes of establishing liability to the injured employee 

of an independent contractor, active participation means that the owner “directed the 

activity which resulted in the injury and/or gave or denied permission for the critical 

acts that led to the employee’s injury, rather than merely exercising a general 

supervisory role over the project.” (Emphasis deleted.) Id. at 641. An owner or 

general contractor does not actively participate merely by virtue of its supervisory 
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capacity, or where it imposes general safety requirements directed to all workers. 

Cafferkey v. Turner Constr. Co., 21 Ohio St.3d 110, 113, 488 N.E.2d 189 (1986), 

syllabus. 

{¶57} It is Appellant’s contention that plant owner was an active participant in 

the project because it was responsible for maintenance and repair of the hopper. 

Appellant also contends that plant owner permitted the unsafe manner of flushing the 

hopper because plant owner was aware of the practice and did nothing to prevent it. 

{¶58} Contrary to Appellant’s assertion, this record reveals that plant owner 

did not actively participate in the lime processing. Although plant owner had a right to 

inspect the premises, there is no evidence that it exercised any authority over the 

process. Plant owner made safety recommendations after Corrie’s visit in 2001, 

however, plant owner did not reserve any right to control the process in either the 

lease or the independent contractor agreement. 

{¶59} There is no question that plant owner did exercise some control over 

the lime plant. Again, in order for the exception to the rule that the owner is not 

responsible for injuries to employees of independent contractors to apply, that owner 

must “actively participate” in the work or control a crucial variable, pursuant to 

Sopkovich. In Sopkovich, the Ohio Supreme Court found that Ohio Edison owed a 

duty to an employee of an independent contractor who had been burned by contact 

with high voltage electricity. This decision was based on the fact that Ohio Edison 

retained and exercised exclusive control over a critical variable in the working 
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environment: the de-activation of specific electrical conductors in the work area. Id.

at 643, 693 N.E.2d 233. 

{¶60} The facts of this case are plainly distinguishable from the facts in 

Sopkovich. While it is true that plant owner had allowed the lime plant to fall into 

disrepair, Appellant’s expert, Dr. Carson, conceded that defects in the hopper were 

not responsible for the lime clogs. According to Dr. Carson’s testimony, a wellmaintained, fully-functioning hopper with a lid could nevertheless become clogged 

with lime. 

{¶61} Moreover, “[t]he law requiring an owner to keep the place reasonably 

safe for a contractor and his subcontractors does not apply where the work itself is of 

an unsafe nature or the defects are due to the imperfect and negligent work of the 

contractor himself.” Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 543, 62 

N.E.2d 305 (1945). 

{¶62} Appellant is also mistaken in his belief that this matter does not involve 

an inherently dangerous activity. As this record clearly shows, transporting lime is an 

activity where there certainly are elements of real or potential danger. In Salanki v. 

Doug Freshwater Contr., Inc., 7th Dist. 06-JE-39, 2007-Ohio-6703, ¶ 49, we adopted 

the following test to determine whether an activity is inherently dangerous: 

[T]he performance of a task is inherently dangerous when the 

independent contractor recognizes or should recognize that a degree of 

danger surrounds the performance of the task for which he was 

engaged. In answering the foregoing question, courts should not limit 
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the inquiry to the specific task being performed. Rather, courts also 

should consider the environment in which the task is performed. The 

owner or occupier of the premises will not be liable for an injury 

resulting from a danger inherent in a task when the injury was 

reasonably foreseeable to the independent contractor, i.e., the 

independent contractor knows or appreciates that degree of danger that 

“surrounds” the task’s performance. 

{¶63} The transportation of lime requires the use of PPE, and employees at 

the lime plant have suffered chemical burns as a result of handling lime. Warning 

signs are posted at the site. Employer kept vinegar on site to treat burns. Obviously, 

the danger of chemical burns was reasonably foreseeable to employer in this case. 

{¶64} As Dr. Carson conceded that a hopper with a lid and in perfect 

condition can still clog with lime, this record reveals that employer, in conjunction with 

Appellant, its employee, created the hazardous condition causing the injury in this 

case. Appellant instructed Foltz to fill the hopper with thousands of gallons of water, 

aware of the heat reaction that would occur. Appellant undertook to stand at the 

base of the hopper near the drain and blast water into the opening. Although 

representatives of plant owner may have been aware of employer’s practice of 

flushing the hopper with river water, and that it created a dangerous situation, plant 

owner did not control the creation of that situation, employer did. We also note that 

the record shows employer tried to ameliorate the danger of the flushing procedure 

by requiring employees to stand clear of the hopper until the clog was cleared. 
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Homic’s testimony, coupled with Appellant’s own admissions, established that 

Appellant’s actions were in contravention of workplace policy and would have been 

grounds for termination. Even if we were to assume plant owner had a duty to 

control employer’s operation and stop the admittedly hazardous practice of flushing 

out lime clogs, Appellant’s own actions went beyond the known practice. 

{¶65} Accordingly, the trial court did not err in concluding that plant owner 

owed no duty of care to Appellant. This record reveals that employer was engaged in 

inherently dangerous work, plant owner was not an active participant in the process, 

and the negligent acts of employer, combined with the acts of its employee, created 

the dangerous situation that caused Appellant’s injuries. 

Open and Obvious Hazard 

{¶66} Assuming arguendo that the actions of plant owner would trigger liability 

under the exceptions to Wellman, it still owed no duty of care to Appellant. In Ohio, 

courts use the common-law classifications of invitee, licensee, and trespasser in 

cases of premises liability to define the scope of the legal duty owed by a landowner. 

Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 

N.E.2d 287 (1996). “Invitees are persons who rightfully come upon the premises of 

another by invitation, express or implied, for some purpose which is beneficial to the 

owner.” Id. 

{¶67} “It is the duty of the owner of the premises to exercise ordinary care and 

to protect the invitee by maintaining the premises in a safe condition.” Light v. Ohio 

Univ., 28 Ohio St.3d 66, 68, 502 N.E.2d 611 (1986). However, when “a danger is 
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open and obvious, a landowner owes no duty of care to individuals lawfully on the 

premises.” Armstrong v. Best Buy Co., Inc., 99 Ohio St.3d 79, 2003-Ohio-2573, 788 

N.E.2d 1088, syllabus. As a result, the presence of an open and obvious danger 

“acts as a complete bar to any negligence claims.” Id. at ¶ 5. 

{¶68} The reasoning for this “is that the open and obvious nature of the 

hazard itself serves as a warning [and the owner] may reasonably expect that 

persons entering the premises will discover [the hazard] and take appropriate 

measures to protect themselves.” Simmers v. Bentley Constr. Co., 64 Ohio St.3d 

642, 644, 597 N.E.2d 504 (1992). Whether a plaintiff actually had observed the open 

and obvious danger does not control. Instead, “the determinative issue is whether 

the condition is, under an objective standard, observable.” Trowbridge v. Franciscan 

Univ. of Steubenville, 7th Dist. No.12 JE 33, 2013-Ohio-5770, ¶ 11. 

{¶69} In this case, there is no dispute that the injury-causing hazard was the 

clogged lime hopper filled with a slurry made up of thousands of gallons of scalding 

water and lime. The plume of steam rising from the hopper was in plain sight, and 

Appellant conceded that he saw the steam and recognized the danger. Appellant did 

not need to have special education and training on the chemical properties of lime in 

order for the danger of this hopper, filled with thousands of gallons of steaming, hot 

liquid, to be open and obvious. Notwithstanding plant owner’s failure to specifically 

train employer’s employees on the dangerous properties of lime, both Foltz and 

Appellant conceded that they recognized the threat of injury created by the 

combination of water and lime at the time Appellant stood under the hopper and 
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began spraying its drain with water from the high pressure hose in order to dissolve 

the clog. 

{¶70} A reasonably prudent person need only see that a condition exists, and 

recognize that encountering that condition carries a “potential for danger.” See Miller 

v. First International. Fid & Trust Bldg., Ltd, 6th Dist. No. L-08-1187, 2009-Ohio-6677. 

{¶71} We have held that awareness of a “general unsafe condition” satisfies 

the open and obvious doctrine. See Salanki at ¶ 75. Any reasonable person facing 

the same circumstances would have seen that the hopper was filled with steaming, 

hot liquid, and recognized that standing at the base of the hopper near the drain and 

attempting to dislodge the clog carried the potential for serious injury. Moreover, in 

this case, Appellant conceded that he was actually aware of the danger. Fultz 

warned Appellant of this potential for danger minutes before his injury, and Appellant 

responded, “I know. I know.” but moved only a few steps from his original spot. 

Further, Appellant conceded that he recognized the danger but waited until it was too 

late to retreat. Accordingly, the trial court did not err in concluding that the danger 

was open and obvious and that plant owner owed Appellant no duty of care. 

{¶72} Appellant failed to establish an essential element of his negligence 

claim: that a duty of care was owed to him by plant owner. Appellant was engaged 

in an inherently dangerous activity. The danger to Appellant was created by 

employer’s procedure of clearing the hopper of clogs in conjunction with Appellant’s 

independent decision to remove the clog with the high-pressure hose while standing 

at the base of the hopper filled with thousands of gallons of boiling slurry. The 
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danger was both objectively open and obvious. Accordingly, the trial court did not err 

in granting summary judgment in favor of plant owner in this matter, and Appellant’s 

first assignment of error has no merit. 

Plant Owner’s Punitive Damages 

{¶73} Appellant’s third assignment of error involves arguments surrounding 

Appellant’s request for punitive damages from plant owner. Because we have 

determined that the trial court was correct in granting summary judgment to plant 

owner, his argument regarding damages is moot. 

Employer Intentional Tort 

{¶74} Because Ohio has a fault-free system to provide relief to employees 

injured in the workplace through the Workman’s Compensation Act, Ohio sets a high 

bar on further recovery from employer for workplace injury. Revised Code Section 

2745.01, which defines employer intentional torts, provides in pertinent part that: 

(A) In an action brought against an employer by an employee * * * for 

damages resulting from an intentional tort committed by the employer 

during the course of employment, the employer shall not be liable 

unless the plaintiff proves 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. 

(B) As used in this section, “substantially certain” means that an 

employer acts with deliberate intent to cause an employee to suffer an 

injury, a disease, a condition, or death. 
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(C) Deliberate removal by an employer of an equipment safety guard 

or deliberate misrepresentation of a toxic or hazardous substance

creates a rebuttable presumption that the removal or misrepresentation 

was committed with intent to injure another if an injury or an 

occupational disease or condition occurs as a direct result. (Emphasis 

added.) 

{¶75} Despite the “substantially certain” language in the statute, the Ohio 

Supreme Court has held that an employee can only recover damages when 

employer acts “with the specific intent to cause an injury.” Houdek v. ThyssenKrupp 

Materials NA., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983 N.E.2d 1153, ¶ 11. 

{¶76} Appellant first argues that his employer’s dangerous method for 

clearing lime clogs provides direct evidence of its intent to injure him. Appellant 

overlooks the requirement to provide evidence of specific intent to injure. The 

evidence of record establishes that employer engaged in negligent practices to clear 

clogs in the hopper, but ameliorated the danger to its employees by specifically 

prohibiting them from standing near the drain of the hopper during and after a flush. 

In fact, Homic testified that any employee who had engaged in the same conduct as 

Appellant would have been terminated by the company. While it is apparent that 

employer’s negligence added a level of hazard in this already dangerous business, 

Appellant flouted the safety rules employer did have in place and undertook to create 

the actual hazard here. Accordingly, the trial court correctly concluded that Appellant 
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failed to demonstrate a genuine issue of material fact exists with respect to the 

essential element of deliberate intent to injure. 

{¶77} Next, Appellant contends that a rebuttable presumption was established 

because employer deliberately misrepresented the danger of the exothermic reaction 

when it failed to provide any specific training or written information regarding the 

hazards associated with lime. Appellant concedes that there is no evidence of any 

deliberate misrepresentation by employer in the record, but relies on his 

interpretation of our decision in Wineberry v. North Star Painting Co., 2012-Ohio4212 (7th Dist.). In Wineberry, we held that the language found in R.C. 2745.01(C), 

“deliberate removal by the employer of an equipment safety guard,” includes the 

failure to attach safety equipment provided by the manufacturer. Id. at ¶ 7. Appellant 

argues that a similar omission occurred in his case. 

{¶78} Appellant contends that the failure of employer to provide training to its 

employees on the danger associated with the combination of water and lime, coupled 

with the dangerous flushing procedure, constitutes an omission similar to the failure 

to attach an equipment safety guard addressed in Wineberry, supra. Even a cursory 

reading of Wineberry reveals that it has no relevance to this matter. Appellant 

conceded at his deposition that despite the absence of specific safety training, he 

was aware of the danger created by the combination of water and lime. He admitted 

that he saw the large plume of steam and recognized the danger. In fact, Appellant 

admitted throughout his deposition that he was completely aware of the danger 
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inherent in working with lime, and more specifically, the particular risk created when 

water is combined with lime. 

{¶79} Moreover, Appellant departed from employer’s standards when flushing 

the hopper with water from the crane bucket. Instead of removing himself from the 

area of the hopper during this procedure, he chose to stand at the base of the hopper 

near the drain as he attempted to remove the clog from the underside. In his 

appellate brief, counsel argues that Appellant was reacting in an emergency because 

he feared that the entire plant would ignite if the hopper was not immediately cleared. 

However, Appellant did not testify to this concern at his deposition, and no affidavit 

was offered in support of this claim. 

{¶80} Simply stated, Appellant has failed to offer any evidence that his 

employer specifically intended to injure him. By all accounts, employer engaged in a 

dangerous method for clearing the hopper of lime, but mitigated the danger by 

prohibiting employees from standing near the hopper during and after a flush. 

Appellant’s injuries did not result directly from employer’s method for unclogging the 

hopper. Instead, the record shows that Appellant was injured due to his own 

decision to attempt to clear the clog while standing at the base of the hopper near the 

drain, in contravention of employer’s policy. Based on this record, the trial court did 

not err in granting summary judgment on the employer intentional tort claim, and 

Appellant’s second assignment of error also has no merit. 

Conclusion 
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{¶81} Appellant’s first and second assignments of error are meritless. 

Appellant’s third assignment of error is moot. The judgment of the trial court granting 

summary judgment in favor of plant owner on the negligence claim and employer on 

employer intentional tort claim is affirmed. 

Donofrio, J., concurs. 

DeGenaro, J., concurs.