Medina v. Harold J. Becker Co., Inc.

Citations: 163 Ohio App. 3d 832; 2005 Ohio 5438; 840 N.E.2d 1112Docket: No. C-050041.

Court: Ohio Court of Appeals; October 14, 2005; Ohio; State Appellate Court

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In a case involving plaintiff Guillermo Medina, who fell approximately 30 to 35 feet while working as a roofer for Harold J. Becker Company, Inc., and was leased by Garcia Labor Company, Medina sued both companies for an intentional tort after the trial court granted summary judgment in their favor. The appellate court affirmed the judgment for Garcia but reversed it for Becker.

Medina, a Mexican citizen employed through the temporary agency Garcia since 1999, began working for Becker in July 2000. During a roofing project at the University of Cincinnati Genome Research Institute in July 2002, Medina and another worker were tasked with installing insulation, which required catching bundles lifted by a crane. On the morning of his fall, Medina was positioned near the edge of the roof when he fell.

Witnesses, including Becker's foreman Tom Bailey, testified about a warning line on the roof, which, according to OSHA regulations, should have been six feet from the edge. Bailey claimed he established and consistently checked the warning line's position, confirming it was six feet away at the time of the fall. However, Medina’s account differed; he recalled that the line was not measured but placed visually and had been moved closer to the edge during prior work. In his affidavit, he stated that at times the warning line was only a few centimeters from the edge, with parts less than one to two feet away, and that workers sometimes operated beyond the line.

After the fall, photos taken by Tim Lakoff, vice president of the general contractor, showed that the warning line was positioned flush against the insulation bundle, indicating the line was bent and closer to the edge at that point. These conflicting accounts and the evidence regarding the positioning of the warning line contributed to the court's decision to reverse the summary judgment for Becker.

James Zucchero, an occupational safety consultant and former OSHA compliance officer, testified that photographs indicated the warning line at a worksite was less than six feet from the roof's edge, which Zucchero argued made Medina's fall a likely outcome due to the proximity of insulation requiring Medina to walk within four feet of the edge. Following Medina's fall, OSHA cited Becker for three serious violations, including the improper placement of the warning line, leading to an out-of-court settlement with penalties. 

Medina challenged the trial court's summary judgment in favor of Becker and Garcia, arguing there remained a genuine issue of material fact regarding Becker's knowledge of the substantial certainty of injury due to the inadequate warning line distance. The legal standard for proving an employer's intentional tort, as outlined in the Ohio Supreme Court case Fyffe v. Jeno's, requires the employee to demonstrate the employer's knowledge of a dangerous condition, awareness that harm was a substantial certainty if the employee was subjected to it, and that the employer acted to require the employee to continue the dangerous task. The evidence presented by Medina suggested that the warning line was improperly measured and that workers had to operate close to the roof's edge, with safety instructions only followed when supervisors were present.

Medina argues that the warning line was placed less than six feet from the roof's edge, supported by his own deposition testimony expressing uncertainty about its placement, as well as expert witness Zucchero's testimony based on photographs taken after the fall. These photographs indicated that insulation bundles were also positioned less than six feet from the edge, and all witnesses confirmed that Medina was working close to the edge before his fall. An OSHA investigation corroborated this by issuing three serious citations against Becker, including one for the warning line's proximity to the edge.

Despite Becker's foreman, Bailey, claiming the warning line was consistently measured at six feet from the edge, the evidence presented by Medina suggests a genuine dispute regarding the warning line's location, warranting reconsideration of the summary judgment granted to Becker. 

Becker contends that Medina's affidavit should be disregarded for contradicting his earlier deposition. Legal precedent states that a party cannot create a genuine issue of material fact with an affidavit that contradicts unambiguous deposition testimony without providing an explanation. A later affidavit must clarify or supplement prior testimony to be admissible. Becker points out a specific contradiction where Medina's deposition claimed he never crossed the warning line, while his affidavit stated that working near the edge required him and others to go under the warning line. Medina explained that this practice was common until a warning was issued by Bailey due to external oversight.

Medina's affidavit, despite contradicting his earlier deposition regarding whether he worked outside the warning line, does not invalidate the entire affidavit. The critical issue is not whether Medina stepped outside the warning line, but rather the line's actual placement, which both the deposition and affidavit address consistently. Medina clarified in his affidavit that he and Bailey did not measure the distance of the warning line, providing specific instances of its proximity to the roof's edge. This suggests that even if Medina was technically within the warning line, its close placement to the edge could have offered limited protection during his fall.

Regarding Zucchero's deposition and affidavit, Becker challenges Zucchero's personal knowledge of Becker's awareness during Medina's fall and claims Zucchero improperly relied on Medina's affidavit and OSHA records. These challenges are deemed unfounded, as Zucchero based his conclusions on Medina's affidavit, photographs from after the fall, and relevant OSHA citations, all of which were properly included in the record. Ohio law permits expert opinion testimony to be based on facts within the witness's knowledge or supported by other evidence, affirming Zucchero's reliance on these sources.

Finally, Becker opposes the trial court's consideration of past OSHA violations in assessing the intentional-tort claim, highlighting a division in Ohio courts on this matter. Some courts have deemed OSHA citations irrelevant to employer intent, while others have allowed their admission in trials without error, maintaining that OSHA violations do not equate to negligence per se.

OSHA violations alone do not establish an employer's intent to injure an employee, according to the Second Appellate District. However, these violations may be considered alongside other factors in assessing intent in intentional-tort cases. Other appellate districts have similarly noted that while OSHA citations are not conclusive evidence of intent, they can be relevant. The Fourth Appellate District has indicated that non-compliance with safety regulations can show an employer's awareness of the risk of injury. Recent case law from the Twelfth Appellate District suggests that evidence of OSHA citations, combined with expert testimony, can successfully challenge summary judgment for an employer.

In the case involving Becker and Medina, Becker's OSHA violations were not the sole evidence presented to assert Becker's intent, and these violations could be factored into the determination of intent. The court found that OSHA records were appropriately admitted, supporting the notion that unresolved material facts existed in Medina's claim. Regarding the placement of the warning line, Becker argued it was not a significant fact, but the court countered that proximity to the edge could indeed contribute to the claim of substantial certainty of harm. Although proving substantial certainty is challenging, it is feasible, as illustrated in prior cases where the nature of the hazards led courts to find that the risk of injury was significant. The principle of gravity underscores that a falling object, particularly a person, is likely to result in harm, reinforcing the argument that Medina's situation warranted further examination.

In Lear v. Hartzell Hardwoods, Inc., the court reversed a summary judgment for an employer after an employee fell 20 feet due to the lack of fall-protection devices, establishing that the employee faced a significant risk of harm. In Dirksing v. Blue Chip Architectural Products, Inc., the court similarly reversed a summary judgment in favor of an employer whose employee died without safety devices, indicating that reasonable minds could debate the employer's awareness of the risk of injury. In Emminger v. Motion Savers, Inc., an employee fell 40 feet while working on a crane without safety equipment. The employer admitted to violating safety regulations and being cited by OSHA but claimed ignorance of a specific regulation and asserted that the fall was not a virtual certainty. The court clarified that the relevant test is whether an employer understands that serious consequences are substantially certain to result from its actions. The court noted that while an employer may not know when an accident will occur, it must recognize that serious injury is virtually certain if safety measures are neglected. The employer's argument against the certainty of injury despite failing to provide a mandated warning line was deemed illogical, as the safety regulations were intended to prevent falls. The court concluded that the absence of the warning line was a material fact affecting the case, thus reversing the summary judgment against Becker. However, regarding Garcia, the court determined that the loaned-servant doctrine exonerated him from the same level of responsibility as Becker for Medina's safety.

Under the loaned-servant doctrine, when an employee is lent to another party, the employee is considered to be under the control of the borrowing party for actions taken during that employment. Liability hinges on whether the employee was acting under the direction of the general employer or the temporary employer at the time of the incident. In this case, Medina was under Becker's control when he fell, as he reported to Becker's foreman and was the only employee from Garcia at the site. Although Garcia continued to pay Medina and provide workers' compensation, it was irrelevant since Garcia did not control him during the roofing work. The court referenced a similar case, Columbus v. Tradesmen Internatl. Inc., affirming that employees directed by another contractor are not considered employees of the leasing company for liability purposes. Consequently, Garcia could not be liable for Medina's fall, leading to the affirmation of summary judgment for Garcia. However, the summary judgment for Becker was reversed, and the case was remanded for further proceedings regarding Medina's claim against Becker.

Judges Doan and Hendon concur in the referenced legal opinions, citing multiple Ohio cases for precedent. Notable cases include Doe v. Shaffer (2000), Grafton v. Ohio Edison Co. (1996), and Fyffe v. Jeno's, Inc. (1991), which are referenced for legal principles established in their respective syllabi. Additional cases, such as Hannah v. Dayton Power Light Co. (1998) and various appellate decisions, contribute to the legal framework being discussed. The citations cover diverse topics, including liability, negligence, and case law interpretations relevant to the Ohio legal system. The excerpt reflects a comprehensive reliance on established case law to support the judicial reasoning presented.