IN THE SUPREME COURT OF OHIO

CASE NO. 2013-1. 392 .

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RYAN SMITHPlaintiff-Appellee,

•t3S-

RAY ESSER & SONS, INC.Defendant-Appellant

ON APPEAL FROM THE NINTgI APPELLATE DISTRICT,LORAIN COUNTY, OHIO, CASE NO. 12CAo1o15®

MEMORANDUM OPPOSING JURISDICTION OFPLAINTIFF-APPELLEE, RYAN SMITH

Fi6SH )N & BASNFrtQ CAd

50 3'ublic Sq., Stc. 3500

Clevetaiad, Uhio44113

(216) 771-3239

Fax: (216) 781-5876

W. Craig Bashein, Esq. (#0034591)Thomas J. Sheehan, Esq. (#oo696oi)BASHEIN & BAsff1EIN Co., L.P.A.Terminal Tower, 35th Floor50 Public SquareCleveland, Ohio 44113(216) 771-3239FAX: (216) 781-5876

Kenneth J. Knabe, Esq. (#0017651)BROWN AND S7ALLER Co., L.P.A.14222 Madison AvenueLakewood, Ohio 44107(216) 228-7200FAX: (216) 228-7207

Paul W. Flowers, Esq. (#0046625)[COUNSEI. OF RECORI)]PAUL W. FLOWERS Co., L.P.A.Terminal Tower, 35th Floor50 Public SquareCleveland, Ohio 44t13(216) 344-9393FAX: (216) 344-9395

Attorneys for Plcrintif=Appellee,Ryuri Smith

John A. Fiocca, Jr. (#0022o66)Peter A. Schmid (#0077387)SMITH, ROLFES & SKAVDAHI. COMPANY,L.P.A.65 East State Street, Suite 2000Columbus, Ohio 43215(614) 469-7130FAX: (614) 469-7146

Attorney for Defenclant-Fl,ppellant, Ray Esser &Sons, Inc.

Brian D. Sullivan, Esq. (#oo63536)Clifford C. Masch, Esq. (#0015737)i2.EZvtINGER Co., LPAaoi West Prospect Avenue, Suite 1400Cleveland, Ohio 44115-1093

Attorney for Amicus Curiae Ohio Associationof Civil Triczl Attorneys

R!cEUVED

CLERK OF COURT6'REME CJURT OF ONi

TABLE OF CONTENTS

TABLE OF CONTENTS .... ...................................... . ...... .... .............................,........ii

EXPLANATION OF WHY THIS CASE PRESENTS NO ISSUES OF PUBLICAND GREAT GENERAL IMPORTANCE .... ....................................................................1

STATEMENT OF THE CASE ............ ...... ........................................................................2

STATEMENT OF THE FACTS .............................................................................,.............4

ARGUMENT . .. ................................................................................................. ..........12

PROPOSITION OF LAW I: POST-ACCIDENT OSHA CITATIONSARE IRRELEVANT AND IMMATERIAL FOR THE PURPOSE OFGAUGING AN EMPLOYER'S "SPECIFIC INTENT" 'I'O INJURE ANEM PLOYEE.... ... ... .. ................ . ..... .............. ...... ........................................12

PROPOSITION OF LAW II: THE "TOTALITY OF THECIRCUMSTANCES" TEST ADOPTED BY THE NINTH DISTRICT INITS POST-APPELLATE DECISION JOURNAL ENTRY OF JULY 22,2013, CONTRAVENES THE LEGAL STANDARD SET FORTH INK41t1INS'KI AND HDIJDEK ................................................................................. 14

CONCLUSION ........................................ ...... .. .......... ........................................15

CERTIFICATE OF SERVICE ............................................................._............................ i6

PAUL W. Ft:CwrKs Co.

501'ublic Sq., Ste 3500

Cleveland, Ohio 44113

(216) 34-1-9393

Pah; (216) 344-9395

11

ti

EXPLANATION OF WHY THIS CASE PRESENTS NO ISSUESOF PUBLIC AND GREAT GENERAL IMPORTANCE

The two Propositions of Law that have been fashioned by Defendant-Appellant,

Ray Esser & Sons, Inc., do not implicate any issues of public or great general

importance. Having no interest in the Ninth District's actual holdings, the employer has

simply manufactured legal errors that purportedly require immediate correction.

Contrary to Defendant's repeated assurances, the appellate court certainly did not

ignore controlling precedent in determining that a jury trial is necessary in this case.

With respect to the first Proposition of Law, Defendant is incensed with the Ninth

District's passing reference to the violations that were identified by the federal

Occupational Safety and Health Administration (OSMA) shortly after a teenager was

nearly killed while working for the plumbing outfit as a summer intern. Appellant Ray

Esser & Sons, Inc.'s Memorandum in Support of Jurisdiction (`Appellant's

16%femorandum"), pp. 13-14. Those citations are hardly indispensable to the workplace

intentional tort theory of recovery that is being pursued, as Defendant's owner and

director had acknowledged during depositions that "deliberate" decisions had been

made to forego the bothersome safety requirements. Plaintiff-Appellee, Ryan Smith,

had introduced the OSI-IA citations during the summary judgment proceeding merely to

rebut defense counsel's claims that his client is dedicated to workplace safety and

confirm that the law had indeed been broken. Even if this Court were inclined to adopt

a blanket prohibition against all references to OSH.A violations, the outcome that was

reached below would still be the same.

Defendant's second Proposition of Law is equally contrived. Appellant's

PAUL lh', ;°LOR'81FS Co.

50 Public Sq., Ste 3500

Cleve!aud. Oluo 44113

(216) :341-9303

Fax; (215)344-9395

Memorandum, pp. 14-15. The Ninth District's opinion did not establish a "totality of the

circumstances" test under any stretch of the imagination. Strail-h v. Esser & Sons, Inc.,

gth Dist. No. 12CAo1o15o, 2013-Ohio-1095, Recognizing that neither the phrase, nor

1

any of its variants, actually appear in the decision, Defendant has directed its derision

toward an unpublished two-page Journal Entry dated July 22, 2013 denying the Motion

to Certify a Conflict. While that order also contains no references to the "totality of the

circumstances" the employer has nevertheless fumed that the ruling "replaces that

`OSHA-based' standard with a`totality of the circumstances' legal standard."

Defendant's Memorandum, p. 1. In truth, the Ninth District had merely observed while

overruling the senseless Motion to Certify that:

[Defendant] has mischaracterized this Court's decision in itsmotion. While this Court noted in its decision that[Defendant] blatantly violated several OSHA regulations, ourconclusion that summary judgment was inappropriate in thiscase was not based on our determination that thoseviolations occurred. Rather, this Court determined thatupon consideration of the totality [Defendant's] actions,reasonable minds could conclude that [Defendant] wassubstantially certain that sending [Plaintiff] Ryan Smith intothe trench would result in injury. It follows that this Court'sdecision was not in conflict with the Eighth District'sdecision in Schiemann. The motion is denied. [emphasisadded]

Id., Exhibit.B, p. 2. Far from applying an objective "reasonable employer" standard as

was rejected in Houdek v. ThyssenKrupp Mats. 11T..A.., Inc., 134 Ohio St.3d 491, 2012-

Ohio-5685, 983 N.E.2d 1253, the appellate court remained focused upon "the totality of

appellee's actions," in strict accordance with this precedent.

In the end, Defendant's seemingly endless ridicule of the Ninth District's sound

ruling is completely undeserved. No issues of public or great general importance are

truly at stake.

STATEMENT OF CASE

This workplace intentional tort action was commenced in the Lorain County

PAUl, W. FCOW ERS C6.

50 Public Sy., Ste 3500

Ctevel tnd, CJ}uo 44:113

(2t6) 394-9343

Fax: (216) 349-4395

Court of Common Pleas on March 19, 2009. The Complaint alleged that Plaintiff-

Appellant, Ryan Smith, suffered serious and disabling injuries to his left hand when he

was deliberately required to work in a trench in violation of federal safety regulations.

2

He was a seventeen-year-old high school student at the time of the disturbing incident.

On February 11, 2oio, Defendant submitted a Motion for Summary Judgment

("Defendant's First Motion"). The application was based entirely upon the affidavit of a

company officer, Randy Esser, and a foreman, Charlie Clouser. The depositions

conducted during discovery were completely ignored. Furthermore, Defendant's

Motion was rooted strictly in the common law workplace intentional tort standards.

The employer specifically disclaimed any intention to seek summary judgment under

the "deliberate intent" requirement imposed by recently enacted R.C. §2745.01.

I)efendants Firsi-Motion, p. 3.

Plaintiffs submitted their Memorandum in Opposition to Summary Judgment on

March 22, 2010 ("Plaintiffs' First Memorandum"). The injured worker accepted Fyffe as

controlling and agreed to "follow Defendant's lead and analyze the instant claim under

the traditional common-law standard." Id., p. 3 (citation omitted). Citing deposition

testimony, the Citations and Notification of Penalty that had been issued to Defendant

by the Occupational Safety and Health Administration ("OSHA"), and the report of a

workplace safety expert, Plaintiffs maintained that genuine issues of material fact

existed upon the common law Fyffe standard.

The next day, this Court released Kaminski v. Metal & Wire.Prvda. Co., 125 Ohio

St.3d 250, 20io-Ohio-1027, 927 N.E.2d lo66, and Stetter v. R.J. C'orman 17erailrrient

Servs., L.L.C., 125 Ohio St.3d 280, 2ozo-Ohio-1029, 927 N.E.2d 1092, upholding the

constitutionality of the new workplace intentional tort statute, R.C. 2745.01. Wasting no

time, Defendant submitted a Reply Brief in the common pleas court six days later,

which embraced both Kaminski and Stetter ("Defendant's First Reply").

The day after Defendant's First Reply was filed, Judge James N. Burge issued aPaui, W. Fi,owea5 Co.

50 i?ubfic Sq.. Sfe :i.5p0

Clevel a1td, Ohio 44113

(216) 344-9393Nax: (216) 34i-' -9395

final order on March 30, 2010, granting summary judgment on the basis of the statutory

standard. Plaintiffs then commenced an appeal of the ruling on April 8, 2010.

3

Following briefing and oral argument, the Ninth District reversed the final order on the

grounds that summary judgment had been improperly granted on a basis that had not

been raised in the initial motion. Smith v. Ray Esser & Sons, Inc., gth Dist. No.

zoCAoo9798, 2o11-Ohio-1529, 2011 W.L. 1167o67 (Mar. 31, 2011).

Upon remand, Defendant filed a second Motion for Summary Judgment on

September 30, 2011 ("Defendant's Second Motion"). Other than furnishing specific

citations to R.C. §2745.01, the application differed little from the first unsuccessful

demand for summary judgment. The court was advised that "*** Kaminski and

Stetter are, effectively, irrelevant ***." Defendant's Second Motion, p. 3 (emphasis in

original). Plaintiffs timely opposed this request on November 14, 2011 ("Plaintiffs'

Second Memorandum"). Defendant's Reply Brief followed on December 2, 2o11 and,

with leave of court, Plaintiffs submitted a Surreply on December 22, 2011.

Judge Burge conducted an oral hearing upon the Motion on December 9, 2011.

In a Judgment Entiy that was issued on December 27, 2o11, he granted summary

judgment in favor of Defendant upon the workplace intentional tort claim. In a

unanimous decision that was issued on March 25, 2013, the Ninth District found that

genuine issues of material fact existed upon the statutory workplace intentional tort

claim. Smith, 2013-Ohio-1o95. Defendant's ensuing Motion for Reconsideration,

Motion to Certify a Conflict, and Motion for En Banc Review were all denied. Defendant

is now seeking further Supreme Court review.

STATEMENT OF FACTS

In the Summer of 20o$, Plaintiff, Ryan Smith, had just finished his junior year at f

Pq uCW, FtoweaS Ca.

50 PublirS j., .Ste 3500

Cleveland, Ohio44113

(216) 344-939.3

fax. l216j 344-9395

the Lorain County Joint Vocational School. Deposition of Ryan Sinith taken Septentber

4, 2009, pp. 6-7, pertinent portions attached to Plaintiffs' Second Memorandun2 as

LxhibitA. He was seventeen years old. Id., pp. 5-6. As part of his curriculum, the youth

was hired as a summer intern by Defendant at a rate of $ 7.50 per hour. Id., p. 11.

4

<

Defendant's owner and Director of Operations is Randy Esser ("Esser").

Deposition ofRandy Esser taken December 22, 2009, p. 5, pertinent portions attached

to Plaintiffs' Second Memorandum as iJ'xhibitB. Esser explained during his deposition

that the company furnishes all types of residential and commercial plumbing services.

Id.,p.7.

Plaintiff's• first day on the job was June 30, 2oo8. Plaintiffs' Second

Memorandum, Exhibit A, p. 10. As Director Esser appreciated, the seventeen-year-old

had no prior safety training or trench work experience. Id., Exhibit B, pp. 44-45. His

first assignment was to assist Charles Clouser ("Clouser") with a fire hydrant removal

and installation project at the Foxes Lair Apartments. Id., pp. S-.to, 14-15. Another

worker, Brian Rann ("Rann"), was also assigned to the crew. Id., p. 45.

Clouser was designated by Director Esser as the Foreman on this jobsite.

Plaintiffs' Second Memorandum, Exhibit B, p. 22. He had worked off-and-on for

Defendant for roughly fifteen years. Id., p. 47. Clouser had developed an extensive

criminal record, including multiple DUis and felony convictions. Deposition of Charles

Clouser taken December 22, 2009, pp. 4-6, pertinent portions attached to Plaintiffs'

Second Memor•andum as Exhibit C. He had just been released from prison in April

2005, after serving part of a sentence for felonious assault. Id., p. 5. Director Esser had

facilitated his "early release" by advising the Judge that Clouser would have a job waiting

for him. Id., p. 7.

In order to reniove the hydrant, a seven-foot deep trench had to be dug. I

PAtn, W. Ft.otVr:as C:o.

50 I'ublic Sq., Ste 3500

Clevelarid, C7hiu 44113

(236) 3-24-9393

F.zx:(216)344-9395

Plaintiffs' Second Memorandum, Exhibit B, pp. 20 & 34; Exhibit C, p. do. Director Esser

appreciated that Foreman Clouser had never received any safety training in this regard.

Id., Exhibit B, p. 22. As a plumbing contractor, Defendant historically steered away from

jobs requiring excavations of more than a few feet in depth. Id., Exhibit B, pp. 29 & 32-

33; Exhibit C, pp. 13, 15 & 17. Subcontractors were usually hired to perform such work.

5

Id., Exhibit B, pp. 33 & 35; Exhibit C, p. 13. However, that cost the company money. Id.,

Exhibit C, p. 18. Director Esser thus made a "deliberate decision" to have his plumbers

dig the trench themselves. Id., Exhibit B, p. 34.

On Plaintiffs first day on the job, the trench was dug around the hydrant, ivhich

was approximately seven feet deep, ten feet wide, and twelve feet long. Plaintif, fs' Second

Memorandum, Exhibit C, pp. 19-2o. A mini-excavator was used to remove the dirt. Id.

The workers were able to confirm that the old hydrant was indeed leaking. Id. They

then had to leave the site due to rain. Id., Exhibit A, pp. 14-15. Over the next two days,

rainwater filled the trench. Id., Exhibit C, p. 22. As one would expect, the federal OSHA

adopted mandatory protections for workers required to perform their duties in trenches

that have accumulated water. 29 C.F.R. §1926.651(h)(1). Furthermore, "the water

removal equipment and operation shall be monitored by a competent person to ensure

proper operation." Id.

As another safety precaution, OSHA also required the trench walls to be

substantially "sloped" or "benched." 29 C.F.R. 1926,652(b). The Ohio Bureau of

Workers Compensation has imposed similar requirements. Ohio Admin. Code 4123a1-5-

26(B). Director Esser had been aware of these safety regulations. Id., Exhibit B, pp. 29-

30 & 38-43 & 49. He also knew that the slope was supposed to be angled at a one-to-one

ratio. Id., p. 37. In other words, the width of the ground level opening of a seven-foot

deep trench wotild have to extend seven feet at the top on the sides, for a total of at least

fourteen feet. Id., pp. 37-38 &,51. Esser never bothered to ask Foreman Closer whether

he understood this requirement. Id., p. 38.

The requirement for sloped or stepped walls does not need to be followed when I

PAUL W. FLOW eR5 Crr.

50 I'urli.e 8q , Ste 9500

Clcvehuld, CJluo 44113

(2?6) 344 -9393

Fax: (216) 344-9395

safety boxes or shoring are installed in the trench to protect the workers, but Director I

Esser opted against such alternative safety measures. Plaintiffs' Second 147emorandum, I

Exhibit B, pp. 27 & 34. Notably, the company had previously been willing to arrange for I

6

a safety box to be furnished when Esser's own son was required to work in a trench. Id.,

P. 50.

Director Esser still claimed during his depositions that the walls had been sloped

somewhat, but he had no proof of that. Flaintifs' Second Memorandum, Exhibit B, p.

30. Plaintiffs recollection, which had to be accepted as true at the summary judgment

stage of the proceedings, was that the walls were nearly vertical. Affidavit of Ryan

Smith, paragraph 4, attached to Plaintzffs' Second klern:orandum as Exhibit F. A jury

will undoubtedly find him to be more credible, given that OSHA later confirmed that the

walls had not been properly sloped. Id., Exhibit B, p. 36:

This debate never should have been necessary, as OSHA also required daily

inspections of the excavations and elimination of all potential hazards by a "competent

person." 29 C.F.IZ.1926.651(a)(1). Pursuant to subsection (2), all work in the trench had

to be stopped until the appropriate precautions had been taken against any "hazardous

conditions" detected during the inspections. Id. By Director Esser's oum

acknowledgement, Defendant did not employ anyone with sufficient training to qualify

as a "competent person" for purposes of these regulations

.tllemorandum, Exhibit B, p. 25.

Plaintiffs' Second l

The same plumbing crew returned to the Foxes Lair job site on July 2, 20o8, 1

which was Plaintiff's third day as an intern. Plain.tiffs' Second Memorandum, Exhibit A,

p. 15-16. Because Foreman Clouser had been stripped of his driver's license, Plaintiff

had to operate the company truck. Id., Exhibit C, p. 24. Water was pumped out of the

trench, which took a couple of hours. Id., p. 23. As one would expect, the bottom was

muddy and the walls were wet. Id., p. 22.

Foreman Clouser sent Rann off in a company truck to pick up parts. Plaintiff.s',PAUL W. FLOwLPS CQ,

50 Puhiic Sq., Ste 3500

ClevelanrE, Oliio 44113

(276) 344-9393

Fax: (216)344-9395

Second 1tlemorandum, Exhibit B, p. 45; Exhibit C, p. 25. That left the seventeen-year- I

old summer intern alone with the convicted felon in charge. Notwithstanding the I

7

plumbing company's inexperience with outdoor excavations and Clouser's obliviousness

to the governing safety regulations, the youth was sent into the trench. Id., Exhibit A,

pp. 19-20; Exliibit B, p. 43; Exhibit C, p. 27. Plaintiff was required to chip away at a

brick thrust block with a "minijackhammer," while Clouser assigned himself the

substantially less taxing task of locating and arranging the tools that would be needed.

Id., Exhibit C, pp. 19-20 & 26-27.

Director Esser understood that the OSHA regulations were intended to protect

workers and failing to follow them would increase the risk of injury. .Plazntiffs' Second

Memorandum, Exhibit B, pp. 43-44. He also appreciated that before anyone climbed

into the trench, the walls were supposed to be sloped at the mandated ratio:

Q. Did you guys think you had the obligation to complywith those ratios?

A. Yes.

Q.

A.

You kneNv what the ratios were, right?

Yes.

Q. And you knew this trench didn't meet those ratios,correct?

A. Yes.

Q. And you asked [Plaintiff] to get in this hole and ivorkon that day anyways, correct?

A.

Q.

A.

Id., p. 43.

No, I didn't.

[Clouser] did, the foreman?

I would assume he did. [emphasis added].

Plaintiffs inexperience was no mystery, as Director Esser acknowledged during I

PAUL W. FLt74ti ERS Co.

50 Public Sq., Ste 3500

C1er.•elaztd, Ohio 44173

(2"16)344-9393

Fax: (216)3449395

his deposition:

Q. *** [H]ow many days or how much experiencedid he have in trench work before the accident?

8

A. Zero.

Q. Okay. And [Clouser] knew that?

A. Yes.

C^. You knew that?

A. Yes.

Plaintiffs' Second Memorandum, Exhibit B, pp. 44-45. Yet another federal regulation

was violated by Defendant's failure to furnish mandatory safety training, which would at

least have allowed the intern to recognize and attempt to avoid the hazardous conditions

himself. 29 C.F.R. 1926.2.

As Director Esser further conceded, complying with the OSHA requirements for

inspections by a "competent person" would have effectively precluded any work in the

trench. In addition to verifying that the slope ratio requirements had been satisfied, the

OSHA-qualified competent person would also have been required to ensure that "there's

a means of egress." Plaintiffs' Second Memorandum, Exhibit B, p. 46. There was

actually "a whole list on a checklist that the competent person shall do on a daily basis

***." Id., p. 46-47. Before anyone entered the trench, the inspection was supposed to be

verified in writing. Id., p. 47. Esser then testified as follows:

Q. *M* [I]s there supposed to be written verification thatit's done prior to digging, after digging, before people enterthe trench and then on a daily basis, is that correct?

PAUL W. FLOLY£25 C<).

50 Fublic Sq., Ste 3500

Cleveland; Oluo 44113

(216) 344-+9393

Fax: (216) 344-9395

A.

Q.

A.

Q.

A.

That's correct.

And none of tllat was done, correct?

That's correct.

And you knew none of that was being done correct?

I did. [emphasis added].

Id., p. 47. Foreman Clouser also knew that the trench was supposed to be inspected I

9

daily before anyone descended inside and claimed only that he had been unaware of the

necessity of a written report. Id., pp. 16-17.

According to Plaintiff, Foreman Clouser remained safely on the ground level for

most of the time. Plaintiffs' Second Memorandum, Exhibit A, pp. 20-21. The intern

started using a hammer to remove the block near the pipe, but the mud made this

process impossible. Id., p. 2o. He thus had to use his hands to remove the debris. Id.,

pp. 20-21. Plaintiff was facing towards the front of the fire hydrant in a crouched

position in the bottom of the trench. Id., pp. 21-22.

All of a sudden, the trench started filling with water. Plaintiffs' Second

Memorandum, ExhibitA, p. 22. Plaintiff tried to stand up, but realized that his left hand

was caught. Id., p. 22. The defense witnesses have confirmed that his hand had been

pinned between the exposed trench wall and the hydrant assembly. Defendant's Second

Motion, Extiibit A, paragraph 15;. Exhibit B, paragraph zo. In his affidavit, Clouser

acknoN-vledged that the student intern was soon submerged as the trench filled with

water. Id., Exhibit B, paragraphs 10-12. He claimed that he eventually freed the youth's

hand, which allowed him to float to the surface, by pulling on the hydrant assembly with

a mini-excavator. Id., paragraph xl.

Defendant had made much ado in its Motion over Clouser's alleged "rescue" of the ^

PAtai. W. PLC,WF:as CO.

50 Yu nlic Sq., Stb: 3500

Cleveland, Ohio 441B

(216) 344-9393

Fax: (216) 344-9395

drowning intern. Defendant's Second Motion, pp. 6-7. Defense counsel even demanded

that the teenager admit during his deposition that the foreman had "save[d] your lifer.]"

Plaintiffs' Second 1Vlernorandum, ExhibitA, p. 38. The problem with the "hero theory" is

that it is based entirely upon an ex-convict's self-aggrandizing testimony. Rann was off

getting parts and Plaintiff had blacked-out while he was submerged. Id., Exhtbit A, pp.

22 & 38. It is just as likely, if not more than likely, that the rushing water sufficiently

loosened the dirt to free the youth's hand and allow him to float to the surface.

Clouser's bravado aside, Plaintiffs left hand was still crushed and disfigured.

10

Plaintiffs' Secorzd 1Vlemorandum, Exhibit A, pp. 24-25. Had the trench wall been sloped

at a one-to-one angle, instead of running vertically with the pipe, his hand never would

have been trapped. Id., Exhibit F, paragraph 7. The installation of a safety box or wood

shoring also would have allowed him to grab the structure with his right hand and pull

himself to safety. Id., paragraph 8. All too predictably, the four muddy, vertical walls

had prevented a quick escape, while simultaneously allowing the trench to quickly fill.

Plaintiff was transported by emergency rescue personnel to Elyria Memorial

Hospital and was then life-flighted to 1VletroHealth Medical Center. Plaintiff<s' Second

Memorandum, Exhibit A, p. 24. Not surprisingly, he never resumed his internship with

the plumbing outfit. Id., p. 31.

Following Plaintiff's incident, OSHA investigated the Foxes Lair worksite.

Plaintiffs' Second Memorandum, Exhibit B, pp. 19-20. Among other violations, the

investigator confirmed that the trench walls were not properly sloped. Id., p. 36. On

July 30, 2oo8, a Citation and Notification of Penalty was issued. Plaintiffs' Second

Memorandum, Exhibit D. Defendant was cited with a "serious" violation of 29 C.F.R.

§1926.651(k)(:1), which required the daily inspections of excavations by a "competent

person" for the purpose of identifying and removing "hazardous conditions." Id., p. 5.

The plumbers were also charged with failing to furnish adequate cave-in protection,

which was deemed to be a "serious" violation of 29C.F.R. §1926.652(a)(1). Id., p. 6.

Guilty pleas were entered to both charges. Id., Exhibit B, pp. 26-27, 36 & 47-48.

An eaninently qualified workplace safety expert, Richard H. Hayes, D.A.C.F.E, has

PAu:, W, Pi.Otiv^as CO.

50 Public Sq., Sta 3500

t:lesNlati.i, Ohio 44113

(216) 344-9393

Fax: (2I6) 314-9395

carefully studied the incident. He has confirmed that Defendant violated numerous

safety regulations by requiring the under-aged summer intern to work in an illegally

excavated and unprotected trench on his third day on the job. Plaint^ff's' Second

Memorandum, Exhibit El, pp. 2-4. Notably, no attempt had been made to safeguard

against underground water leaks and other hazards as required by 29 C.F.R.

11

MR. FIOCCA: Objection. Asked and answered a thirdtime.

Q. True?

A. True. [emphasis added].

Plaintis Second Memorandum, Exhibit B, pp. 51-52. And Plaintiffs had furnished

competent expert testimony - which Defendant is no longer challenging - confirming

that intentional and deliberate decisions had been rendered by management that all too

predictably left the teenager with a mangled hand. Id., Exhibit El, pp. 3-4.

The federal agency's findings against Defendant were cited only to confirm, as

Director Esser had admitted during his deposition, that a deliberate decision had been

made to ignore mandatory safety measures that would have prevented the young man's

hand from being crushed in the unprotected trench. Srnith., 2013-Ohio-1o95, ¶ 23. His

stunning admissions were far more indicative of a deliberate intent to injure than the

violations, which is precisely why the deposition questioning is never been mentioned in

the ill-conceived Memorandum in Support of Jurisdiction. And the OSHA citations were

independently relevant on another level, in that they thoroughly debunk the Director's

claim that the trench. walls had indeed been sloped as OSHA required. Plaintzffs'

Second 1Vlemornndtem, Exhibit B, p. 30.

Defendant completely mischaracterizes Flint v. Int'l. Nliclta-F'oods, gth Dist. No.

Fax: (216) 344-9395

o6CAoo8918, 2007-Ohio-679, 2007 WL 507070, ¶15. The employer claims that the

PAUi.4t'. F!.oVVe es C:7.

30 Public Sq., Ste 3 500

Clevetzuul, Ohio 44113

(216) 344-9393

Flint court held that OSHA requirements are irrelevant to the inquiry into the

employer's intent to injure the employee. In that case however the Ninth District merely

noted the obvious, which was that an OSHA violation issued after the injury is irrelevant

to the employer's intent to injure in and of itself. Id. at ¶15 ("It is undisputed that prior

to the accident, [the employer] had never been cited or ordered by OSHA with regard to

the unguarded airlock and this Court refuses to impute this knowledge to [the employer]

13

after the fact."); see also Estate of Michael Merrell v. Weirtgold & Company, 8th Dist.

No. 88508, 2007-()hio-3070, 2007 WI. 1776357, 1 6o. In fact, this Court in Flint

acknowledged the opposite of Defendant's current argument and reasoned that:

Some of the relevant facts and circumstances which supportthe conclusion that an employer's knowledge that harm tothe employee was a substantial certainty include, but are notlimited to: prior acts of a similar nature, the employer'sconcealment or misrepresentations concerning the danger,andfederal and/or state safetij violations or noncomplianceby the ernployer with industry safety standards. [Emphasisadded].

Id. at ¶ 12, citing Marks v. Goodwill Industries of Akron, Ohio, Inc., gth Dist. No.

207o6, 2002 WI, 462864, *2 (Mar. 27, 2002). Since the unanimous appellate panel

below based their opinion upon far more than just Defendant's now-admitted OSHA

violations, no issues of public or great general importance are implicated in this

proceeding.

PROPOSITION OF LAW II: THE "TOTALITY OF THECIRCUMSTANCES" TEST ADOPTED BY THE NINTHDISTRICT IN ITS POST-APPELLATE DECISIONJOURNAL ENTRY OF JULY 22, 2013, CONTRAVENESTHE LEGAL STANDARD SET FORTH IN KA1V1/NSKI.ANDHOUDEK.

One can only wonder why Defendant persists in surrounding the phrase "totality

of the circumstances" with quotation marks. Appellant's Memorandum, pp. i, Y, 2, 6,

7, 8, 9, 14, & 15. That phrase does not appear in either the opinion or any of the rulings

that were issued by the Ninth District below. The hope undoubtedly is that this Court

will eventually overlook this inconvenient truism if the fictitious quotation is repeated

over-and-over. Such deception would not be necessary if legitimate grounds actually

existed for granting further Supreme Court review.

Defendant's hysterics are based entirely upon the reference appearing in thePA UL 1N. Ft,OW ER5 C4

50 Public Sg.; Ste 3500

Caevelail:.i, Ohio 44113

(216) 344-9393

Fax: (216) 344-9395

unpublished two-page Journal Entry denying the Motion to Certify a Conflict.

Defendant's Memorandum, Exhibit B, p. 2. In full compliance with IIoudek, the Ninth

14

District actually examined "the totali ty of [Defendant's actions," and concluded that a

factual dispute existed over whether. a deliberate intent to injure had been established.

Id., (emphasis added) Defendant has simply concocted a questionable legal holding that

does not actually exist in an effort to cajole this Court into undoing the adverse ruling.

In Houdek, 134 Ohio St,3d 491, a majority of this Court refused to adopt an

objective "reasonable employer" test for evaluating workplace intentional tort claims

under R.C. 2745.o1. Accordingly the Ninth District examined "the totality of

[Defendant's] actions" in determining whether a dispute existed over whether the

employer had acted deliberately. Defendant's Memorandum, Exhibit B, p, 2. Since that

subjective approach is now required by Houdek, Defendant's caterwauling is misplaced.

No issues of public or great general importance exist that warrant this court's time and

attention.

CONCLUSION

Because neither of the two Propositions of Law possess merit, no issues of public

r'AUIW. 17i.C?WFiiSCO.

50 Public Sq., Ste 3500

Cleveland. DMo 44113

(216) 344-9393

Fax: (216) 34:-9395

or great general importance are threatened by the Ninth District's sound ruling.

Respectfully Submitted,

W. Craig Bashein, Esq. (#0034591)Thomas J. Sheehan, Esq. (#oo696oi)BASHEIN & BASHEIN Co., L.P.A.

.`^'t212eti(Z .7. K12C16e (per authority)

Kenneth J. Knabe, Esq. (#0017651)BR®WN AND SZALLER Co., L.P.A.

AttorneJs for Plaintiff-Appellants,Ryan Smith, et a1.

Paul W. Flowers, Esq. (#0046625)PAIJL W. FLOWERS Co., L.P.A.

Terminal Tower, 35th Floor

15

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Memorandum has been sent by e-mail on

this 2na day of October, 2013 to:

John A. Fiocca, Jr., Esq.SMITH, ROLFES & SKAVDAHL Co. LPA

65 East State Street, Suite 2000Columbus, Ohio 43215jfiocca Ca)srnithrolfes. com

Attorney for Defendant Appellee,Ray Esser & Sons, Inc.

Brian D. Sullivan, Esq. (#oo63536)Clifford C. Masch, Esq. (#0015737)REMINGER Co., LPAYoi West Prospect Avenue, Suite 1400Cleveland, Ohio 44115-1093bsullivan C2 remi nger. comcmasch(clpremin .e r.com

vv ^

Paul W. Flowers, Esq., (#0046625)PAuL W. FLOWERS Co., L.P.A.

Attorney for Amicus Curiae OhioAssociation of Civil Trial Attorneys

PAUL W. Fiflwt'rs Cc).

50 Public 5q., Ste 3500

Cleveland, Ol ia44-113

(216) 344-9393

i*ax: (226) 34-#.-9395

Attorneyfor Plaintaff-Appellee,Ryan Smith

16