Bliss v. Johns Manville

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Bliss
v. Johns Manville, Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

            BLISS, EXR., APPELLANT, v. JOHNS MANVILLE, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
 may be cited as Bliss v. Johns Manville, Slip Opinion No. 

.]
Employer intentional-tort liability—R.C. 2745.01—Summary judgment—When
        reviewing a trial court’s denial of summary judgment in cases in which a
        jury ultimately reached a verdict in the nonmoving party’s favor, an
        appellate court must construe the evidence before it most strongly in favor
        of the nonmoving party when applying the relevant law—Court of appeals’
        judgment affirmed.
    (No. 2021-0800—Submitted May 11, 2022—Decided December 8, 2022.)
       APPEAL from the Court of Appeals for Lucas County, No. L-20-1091,
                                      

.
                                   __________________
                                  SUPREME COURT OF OHIO




         FISCHER, J.
         {¶ 1} In this case, we are asked to address how an appellate court should
review a trial court’s decision to deny summary judgment in a case in which a jury
ultimately reached a verdict in the nonmoving party’s favor. We reaffirm that in
conducting its de novo review of a trial court’s decision to deny summary judgment,
an appellate court must construe the evidence before it most strongly in favor of the
nonmoving party when applying the relevant law. Because the Sixth District Court
of Appeals did not err in its review below, we affirm the decision of that court.
                FACTUAL AND PROCEDURAL BACKGROUND
         {¶ 2} The appellant in this case is Darlene L. Bliss as executor of the estate
of her deceased husband, Robert A. Bliss.1 Robert Bliss, a former employee of
appellee, the manufacturing company Johns Manville, was allegedly injured while
operating a machine on the job. Bliss filed a lawsuit alleging that Johns Manville
intentionally caused the injury in violation of R.C. 2745.01. Specifically, Bliss
alleged that either, sometime prior to his injury, Johns Manville removed bolts to
an access window on the machine or that Johns Manville had never bolted the
access window—which ultimately led to Bliss’s injury.
         {¶ 3} Johns Manville filed a motion for summary judgment in which it
alleged that Bliss’s evidence did not establish that Johns Manville had acted with
the requisite deliberate intent to injure another under R.C. 2745.01. Bliss filed a
response supported by an affidavit of his expert, Gerald Rennell. In its response,
Johns Manville moved to strike the affidavit of Rennell. The trial court denied the
motion to strike the affidavit. Noting that Bliss had filed an expert affidavit, the


1. After the oral argument in this case, counsel for Bliss filed a suggestion of death notifying this
court that Robert Bliss had passed away. Counsel stated that Bliss’s wife, who was also a plaintiff
in the original complaint, intends to prosecute the case on behalf of Bliss’s estate in an effort to
reinstate the jury verdict. We subsequently granted a motion for substitution of party, substituting
Darlene Bliss as executor of the estate of Robert Bliss for Robert Bliss as appellant. ___ Ohio St.3d
___, 

, __ N.E.3d ___. For ease of discussion, we will refer to the appellant as
“Bliss” in this opinion.




                                                 2
                                 January Term, 2022




trial court concluded that Johns Manville had failed to show that there were no
genuine issues of material fact and denied the motion for summary judgment.
        {¶ 4} At the conclusion of the trial, the jury found in favor of Bliss.
        {¶ 5} On appeal, Johns Manville raised eight assignments of error,
including challenges to the trial court’s decision to deny the motion to strike
Rennell’s affidavit and the trial court’s decision denying Johns Manville’s motion
for summary judgment. 

, 

. In a unanimous
decision, the Sixth District reversed and entered judgment in Johns Manville’s
favor. Id. at ¶ 47.
        {¶ 6} In its analysis, the Sixth District first concluded that the trial court
abused its discretion in failing to strike Rennell’s affidavit. Id. at ¶ 22. It reasoned
that the affidavit comprised legal conclusions regarding statutory terms and was
accordingly impermissible. Id.
        {¶ 7} The Sixth District then proceeded to address whether the trial court
erred in denying Johns Manville’s motion for summary judgment. Id. at ¶ 24. The
court noted that in denying the motion for summary judgment, the trial court did
not conclude as a matter of law that the access window was an equipment safety
guard. Id. at ¶ 7. The Sixth District held, as a matter of law, that the equipment at
issue in this case did not constitute an “equipment safety guard” under R.C.
2745.01. 

. Without the affidavit, the court concluded, Bliss
presented no evidence of an “equipment safety guard” and, accordingly, Bliss was
not entitled to the presumption that removal of an equipment safety guard was
committed with an intent to injure. Id. at ¶ 39-40. The court then concluded that
while Johns Manville’s actions may constitute negligence, there was no evidence
presented in this case that Johns Manville intended to injure Bliss. Id. at ¶ 44.
        {¶ 8} The Sixth District accordingly concluded that summary judgment
should have been granted in Johns Manville’s favor and that the case should not
have been given to the jury. 

, 

. It reversed



                                           3
                             SUPREME COURT OF OHIO




the trial court’s decision and concluded that Johns Manville’s remaining
assignments of error (which challenged various aspects of the trial proceedings)
were moot. Id. at ¶ 46.
       {¶ 9} This court accepted jurisdiction over the first proposition of law in
Bliss’s appeal: “Following a favorable verdict based on a full record, de novo
review of a trial court’s decision to deny summary judgment cannot include
weighing the evidence against the non-moving party, overlooking evidence, and
misapplying legal definitions created by the Supreme Court.” See 

, 

, 

.
                                    ANALYSIS
       {¶ 10} Bliss argues that the Sixth District “misapplied controlling
authority” and erred in vacating the jury’s verdict and concluding that Johns
Manville should be granted summary judgment. He asserts that the Sixth District’s
decision should not be allowed to stand and that this court’s intervention is
necessary to prevent courts from following the court of appeals’ analysis in the
future. Bliss further asks this court to “clarify” when expert testimony on factual
issues is appropriate in employer-intentional-tort cases.
       {¶ 11} Johns Manville responds that the Sixth District correctly analyzed
the facts of this case under the settled law and that this court should accordingly
affirm the Sixth District’s decision.
       {¶ 12} Appellate courts review the denial of a motion for summary
judgment de novo, governed by the standards of Civ.R. 56. Piazza v. Cuyahoga
Cty., 

, 

, 

, ¶ 14, citing Vacha v.
N. Ridgeville, 

, 

, 

, citing
Comer v. Risko, 

, 

, 

, ¶ 8.
“Civ.R. 56(C) provides that summary judgment shall be granted when the filings
in the action, including depositions and affidavits, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a




                                          4
                                January Term, 2022




matter of law.” Bonacorsi v. Wheeling & Lake Erie Ry. Co., 

,

, 

, ¶ 24.
        {¶ 13} In reviewing a motion for summary judgment, the evidence must be
construed most strongly in favor of the nonmoving party. See Harless v. Willis Day
Warehousing Co., 

, 

 (1978). It is axiomatic
that in construing evidence most strongly in favor of the nonmoving party, a court
may not ignore evidence in that party’s favor. And a court may not misapply legal
definitions set forth by this court, as courts have no discretion to make errors of
law, see Johnson v. Abdullah, 

, 

, 

.
        {¶ 14} It is also clear that appellate courts may review a trial court’s denial
of a motion for summary judgment after an adverse final judgment has been
rendered in a case: “A trial court’s denial of a motion for summary judgment is
reviewable on appeal by the movant from a subsequent adverse final judgment.”
Balson v. Dodds, 

, 

 (1980), paragraph one of the
syllabus. While any error in the denial of a motion for summary judgment will
often be rendered moot or harmless when the trial proceedings show that there were
genuine issues of material fact supporting a judgment in favor of the party against
whom the motion for summary judgment was made, this court has noted that the
denial of a motion for summary judgment is not harmless when the denial was
predicated on a pure question of law, see Continental Ins. Co. v. Whittington, 

, 

 (1994).
        {¶ 15} Having reaffirmed these basic legal principles, we proceed to
analyze whether the Sixth District correctly applied them in this case. We conclude
that it did.
        {¶ 16} The critical issues in this case are whether the machine’s access
window constituted an “equipment safety guard” under R.C. 2745.01(C) and
whether Johns Manville intended to injure Bliss under R.C. 2745.01(A). The Sixth



                                           5
                             SUPREME COURT OF OHIO




District did not err in concluding that the access window did not constitute an
“equipment safety guard” and that there was no evidence of an intent to injure Bliss.
See 

, 

.
       {¶ 17} Under R.C. 2745.01(A), an employer shall not be liable for an
intentional tort “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.” The General Assembly specified that the phrase
“substantially certain,” as used in R.C. 2745.01, “means that an employer acts with
deliberate intent to cause an employee to suffer an injury, a disease, a condition, or
death.” R.C. 2745.01(B). Thus, in order for Bliss to prevail, he had to show that
Johns Manville committed the allegedly tortious act either with the intent to injure
another or with a deliberate intent to cause an employee to suffer an injury, a
disease, a condition, or death. As this court has previously stated, “absent a
deliberate intent to injure another, an employer is not liable for a claim alleging an
employer intentional tort.” Houdek v. ThyssenKrupp Materials N.A., Inc., 

, 

, 

, ¶ 25. R.C. 2745.01(C) provides that
the deliberate removal of an “equipment safety guard” creates a rebuttable
presumption that the employer acted with such intent.
       {¶ 18} Significantly, much of the Sixth District’s analysis was premised on
its conclusion that the trial court abused its discretion in denying Johns Manville’s
motion to strike the affidavit of Bliss’s expert, in which the expert opined that Johns
Manville deliberately removed a safety guard. See 

. Bliss
argues that we should “clarify” when expert testimony is appropriate in cases like
this; however, this argument—and any other arguments regarding the admissibility
of the expert report—are beyond the scope of the proposition of law we accepted
for review in this appeal. For purposes of our analysis here, we must accept the
conclusion of the Sixth District regarding the admissibility of the expert affidavit.




                                          6
                                January Term, 2022




       {¶ 19} Without the expert affidavit, Bliss failed to offer any evidence that
the access window was an “equipment safety guard” under R.C. 2745.01(C). Bliss
had the burden of production, and he simply failed to produce any evidence to
support his assertions.   For example, while Bliss cited to a Johns Manville
PowerPoint presentation terming the access window a “guard,” Johns Manville’s
use of the generic term “guard,” standing alone, fails to provide any support for a
conclusion that the access window is an “equipment safety guard” under R.C.
2745.01(C). The Sixth District correctly analyzed the issue and concluded that
Johns Manville was entitled to summary judgment on the issue whether the access
window constituted an “equipment safety guard,” and that Bliss accordingly was
not entitled to the rebuttable presumption of intent under R.C. 2745.01(C).
       {¶ 20} The Sixth District also correctly concluded that there was no
evidence that Johns Manville intended to injure Bliss. As the Sixth District
explained, the facts of this case indicate that Johns Manville may have been
negligent, but such negligent conduct does not support an intentional-tort claim.

, 

, citing Stetter v. R.J. Corman
Derailment Servs., L.L.C., 

, 

, 

,
¶ 66. Without any evidence of an intent to injure, Bliss’s claim fails and Johns
Manville is not liable under R.C. 2745.01.
       {¶ 21} For these reasons, the Sixth District’s decision to reverse the trial
court’s judgment was correct, given that the trial court’s denial of summary
judgment was predicated on an erroneous legal determination. See Whittington, 

, 

.
                                 CONCLUSION
       {¶ 22} When reviewing a trial court’s decision to deny summary judgment
in cases in which a jury ultimately reached a verdict in the nonmoving party’s favor,
an appellate court must construe the evidence before it most strongly in favor of the
nonmoving party when applying the relevant law. In this case, the Sixth District



                                         7
                             SUPREME COURT OF OHIO




did not err in applying the relevant law when reviewing Johns Manville’s motion
for summary judgment. We accordingly affirm the decision of the Sixth District
Court of Appeals.
                                                                   Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY and DEWINE, JJ., concur.
       DONNELLY, J., would dismiss the appeal as having been improvidently
accepted because the majority opinion merely reaffirms well-settled law.
       STEWART, J., dissents, with an opinion joined by BRUNNER, J.
                                _________________
       STEWART, J., dissenting.
       {¶ 23} While I agree with the law set forth in the majority opinion, I
disagree with its conclusion that the Sixth District Court of Appeals correctly
applied that law in this case. I therefore respectfully dissent.
       {¶ 24} The majority states:


               Significantly, much of the Sixth District’s analysis was
       premised on its conclusion that the trial court abused its discretion
       in denying [appellee] Johns Manville’s motion to strike the affidavit
       of [appellant John] Bliss’s expert, in which the expert opined that
       Johns Manville deliberately removed a safety guard. See 2021-
       Ohio-1673[, 

,] ¶ 22. Bliss argues that we should
       “clarify” when expert testimony is appropriate in cases like this;
       however, this argument—and any other arguments regarding the
       admissibility of the expert report—are beyond the scope of the
       proposition of law we accepted for review in this appeal. For
       purposes of our analysis here, we must accept the conclusion of the
       Sixth District regarding the admissibility of the expert affidavit.




                                          8
                                  January Term, 2022




Majority opinion, ¶ 18.
        {¶ 25} The majority then concludes, “Without the expert affidavit, Bliss
failed to offer any evidence that the access window was an ‘equipment safety guard’
under R.C. 2745.01(C). Bliss had the burden of production, and he simply failed
to produce any evidence to support his assertions.” Majority opinion at ¶ 19.
        {¶ 26} When reviewing whether a trial court properly granted a summary-
judgment motion, however, we review the record de novo. Piazza v. Cuyahoga
Cty., 

, 

, 

, ¶ 14, citing Vacha v.
N. Ridgeville, 

, 

, 

, citing
Comer v. Risko, 

, 

, 

, ¶ 8.
Moreover, Bliss raised this exact issue in his second proposition of law in his
jurisdictional appeal to this court (“It is not an abuse of discretion for a trial court
to admit an expert affidavit on summary judgment when the affidavit is based on
evidence, set forth facts, and is instructive to the court”), but a majority of this court
declined to accept Bliss’s second proposition of law. See 

,

, 

. It is one thing for this court to summarily
dismiss an appellant’s argument for failure to raise a significant issue on appeal,
but here, Bliss raised the issue in his second proposition of law. A majority of this
court declined to accept that proposition, and now a majority of this court uses the
absence of argument on that issue to rule against Bliss. In other words, Bliss was
prevented from having this court decide key issues regarding his expert’s affidavit,
and now this court uses the absence of expert evidence against him.
                               Trial-court proceedings
        {¶ 27} Johns Manville moved for summary judgment on the ground that
there was insufficient evidence to establish it acted with intent to injure another
under R.C. 2745.01, which states:




                                            9
                                SUPREME COURT OF OHIO




                  (A) In an action brought against an employer by an
        employee, or by the dependent survivors of a deceased 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.
                  (C) Deliberate removal by an employee 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.


        {¶ 28} In response, Bliss opposed Johns Manville’s motion, arguing that
Johns Manville violated R.C. 2745.01(A) and (C). Bliss supported his opposition
with the affidavit of his expert, Gerald Rennell, a “machine safety guarding expert.”
Johns Manville replied that there were “no facts before the court supporting
[Bliss’s] arguments” and that it was “entitled to summary judgment as a matter of
law.”
        {¶ 29} Johns Manville also moved to strike Rennell’s affidavit. Rennell
stated in his affidavit:


                  6. Johns Manville knew the guard on the base fiber feeder
        was defective because it was not secured in position with bolts




                                            10
                        January Term, 2022




requiring hand tools to open the guard. Having an unsecured and
defective guard is the same as removing a guard.
       ***
       8. Johns Manville knew because of a previous incident that
the guard on the base fiber feeder should be secured with bolts
requiring hand tools to open the guard.
       9. Johns Manville knew because of a previous injury that
cleaning the moving base fiber feeder would result in injury.
       10. Johns Manville knew according to Mr. Bliss’s testimony
that employees were cleaning the base fiber feeder while it was
under power.
       11. Johns Manville showed a total and complete disregard
for the safety of its employees by failing to secure guards in place
with bolts.
       ***
       13. It is my opinion that Johns Manville deliberately
removed a safety guard when its personnel failed to bolt the guard
in position (even though the guard had previously been bolted
following an identical incident) and allowed the unguarded machine
to be operated in violation of OSHA 1910.212(a)(2). In other words,
another incident was inevitable. While it is impossible, at this
juncture, to determine the state of mind of any Johns Manville
supervisor or safety personnel, what is clear is that the decision to
remove this equipment guard in this instance came as a result of
deliberate, intentional, and volitional actions. These same people,
with specific knowledge of an identical incident to one of its
employees, took these actions and left Mr. Bliss to suffer the
inevitable consequences.



                                 11
                             SUPREME COURT OF OHIO




       {¶ 30} The trial court denied Johns Manville’s motion to strike Rennell’s
affidavit and Johns Manville’s summary-judgment motion. The trial court found
that based on Rennell’s affidavit, Johns Manville failed to show that there were no
genuine issues of material fact. The trial court did not, however, conclude as a
matter of law that the access window and/or modified lift apron was an “equipment
safety guard.”
       {¶ 31} As the majority sets forth, the case proceeded to a jury trial; the jury
found in favor of Bliss and awarded him $451,000 in damages.
                              Sixth District’s opinion
       {¶ 32} Johns Mansville appealed to the Sixth District, which reversed the
trial court’s judgment. 

, 

. First, it found
that the trial court erred when it denied Johns Manville’s motion to strike Rennell’s
affidavit. Id. at ¶ 22. The Sixth District concluded that Rennell’s affidavit
“specifically opined that the employer deliberately removed a safety guard.” Id.
The Sixth District further explained:


       Rennell stated “what is clear is that the decision to remove this
       equipment guard in this instance came as a result of deliberate,
       intentional, and volitional actions.” With this affidavit, [Bliss]
       attempted to establish that [Johns Manville] deliberately removed
       an equipment safety guard.        However, the interpretation and
       meaning of these phrases from R.C. 2745.01 is a question of law for
       the court to determine, not a question of fact for which expert
       testimony would be permissible.             Fickle [v. Conversion
       Technologies Internatl., Inc., 6th Dist. Williams No. WM-10-016,
       

,] ¶ 25.       Further, Civ.R. 56 and the Rules of
       Evidence regarding expert opinion testimony require affidavits to




                                         12
                                 January Term, 2022




        set forth facts and not legal conclusions. Warren [v. Libbey Glass,
        Inc.,] 6th Dist. Lucas No. L-09-1040, 

, at ¶ 15,
        citing Youssef v. Parr, Inc., 

, 

 (8th Dist.1990). Thus, the expert affidavit, comprised of legal
        conclusions regarding statutory terms, is impermissible, and the trial
        court abused its discretion in denying appellant's motion to strike the
        expert affidavit.

.
        {¶ 33} Next, the Sixth District concluded that without Rennell’s affidavit,
Bliss “presented no evidence that the modified lift apron is an equipment safety
guard.” Id. at ¶ 39. The appellate court then found that “the modified lift apron
does not constitute an equipment safety guard based upon our own interpretation of
the applicable statute.” Id. The court further concluded that Bliss presented no
evidence that Johns Manville intended to injure him, explaining, “The fact that
[Johns Manville] failed to bolt down the spare lift apron may constitute some level
of negligence, but it is equally clear that negligent conduct does not support a claim
based on an intentional tort.” Id. at ¶ 44. The Sixth District vacated the trial court’s
judgment and entered judgment in favor of Johns Manville. Id. at ¶ 45.
                                  Law and analysis
        {¶ 34} In Hewitt v. L.E. Myers Co., 

, 

,

, this court explained that R.C. 2745.01(C) does not define
“equipment safety guard.” We explained that “the interpretation of undefined terms
within a statute is a question of law for the court.” Id. at ¶ 31, citing Akron Centre
Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 

, 

,

. In defining “equipment safety guard” in that case, we looked to
the plain and ordinary meaning of the terms. Id. at ¶ 17. We stated:




                                          13
                              SUPREME COURT OF OHIO




               The word “guard,” a noun, is modified by the adjectives
        “equipment” and “safety.”      Reading the words in context and
        according to the rules of grammar as we must, R.C. 1.42, we
        determine that the phrase “an equipment safety guard” means a
        protective device on an implement or apparatus to make it safe and
        to prevent injury or loss.


Id. at ¶ 18.
        {¶ 35} In Hewitt, we discussed another Sixth District case and other
appellate-court decisions that have defined equipment safety guard:


               The Sixth District Court of Appeals so interpreted the phrase
        [equipment safety guard] in Fickle, 

, modified by
        Beyer v. Rieter Automotive N. Am., Inc., 6th Dist. No. L-11-1110,
        

, 

. In [Fickle], the plaintiff’s hand
        and arm were caught in a roller on an adhesive-coating machine.
        She alleged that her employer had failed to train her to use a jog
        switch that would stop the roller when not depressed and also had
        disconnected an emergency stop cable. The Fickle court concluded
        that these devices were not “equipment safety guards,” because they
        did not prevent the plaintiff’s hands from being exposed to the
        dangerous point of operation of the machinery she had been
        operating. Id. at ¶ 42. Thus, the court concluded that these facts did
        not demonstrate a “[d]eliberate removal by an employer of an
        equipment safety guard” to establish a presumption of intent under
        R.C. 2745.01(C).
               Fickle rejected the argument that “equipment safety guard”
        included “ ‘any device designed to prevent injury or to reduce the




                                         14
                                   January Term, 2022




       seriousness of injury.’ ” Id. at ¶ 39. “The General Assembly did not
       make the presumption applicable upon the deliberate removal of any
       safety-related device, but only of an equipment safety guard, and we
       may not add words to an unambiguous statute under the guise of
       interpretation.” Id. at ¶ 42. Thus, Fickle defined “equipment safety
       guard” as a “device that is designed to shield the operator from
       exposure to or injury by a dangerous aspect of the equipment.” Id.
       at ¶ 43.
                  Other appellate districts in this state have similarly construed
       this phrase. See Beary v. Larry Murphy Dump Truck Serv., Inc., 5th
       Dist. No. 2011-CA-00048, 

 (“equipment
       safety guard” commonly means a device designed to shield the
       operator of equipment from exposure to injury by a dangerous
       aspect of the equipment; a vehicle’s backup alarm does not guard
       anything); Barton v. G.E. Baker Constr., 9th Dist. No.
       10CA009929, 

 (a trench box to secure the sides of
       a trench from collapse is not “an equipment safety guard” because
       it is not a piece of equipment designed to protect an operator of
       equipment); Roberts v. RMB Ents., Inc., 

,
       

, 

 (12th Dist.) (a tire bead and
       bead taper, alleged safety features of a wheel-assembly unit, do not
       constitute “equipment safety guards,” because they are not devices
       designed to shield the operator from exposure to or injury by a
       dangerous aspect of the equipment).


Hewitt, 

, 

, 

.
       {¶ 36} We disagreed with the Sixth District’s conclusion in Beyer, 6th Dist.
No. L-11-1110, 

, 

, that “even ‘personal protection



                                            15
                              SUPREME COURT OF OHIO




equipment’ such as a face mask at a manufacturing plant was ‘an equipment safety
guard’ because the masks were used to prevent the employee’s exposure to toxic
dust.” 

, quoting 

. We specifically rejected the
contention that the phrase should apply broadly “to any safety-related item that may
serve as a barrier between the employee and danger.” (Emphasis sic.) Id. at ¶ 22,
24. We stated, “To construe ‘equipment safety guard’ to include any generic safety-
related item ignores not only the meaning of the words used but also the General
Assembly’s intent to restrict liability for intentional torts. As the Ninth District
observed in Barton v. G.E. Baker Constr., [9th Dist. Lorain No. 10CA009929,]

, ‘[f]rom these common dictionary definitions, it becomes
apparent that not all workplace safety devices are “equipment safety guards” as that
term is used in Section 2745.01.’ ” 

.
       {¶ 37} We held in Hewitt, “As used in R.C. 2745.01(C), ‘equipment safety
guard’ means a device designed to shield the operator from exposure to or injury
by a dangerous aspect of the equipment, and the ‘deliberate removal’ of an
equipment safety guard occurs when an employer makes a deliberate decision to
lift, push aside, take off, or otherwise eliminate that guard.” 

 at syllabus.
       {¶ 38} In this case, the Sixth District concluded that the trial court should
have struck Rennell’s affidavit because he “specifically opined that the employer
deliberately removed a safety guard” and “the interpretation and meaning of these
phrases from R.C. 2745.01 is a question of law for the court to determine, not a
question of fact for which expert testimony would be permissible.” 2021-Ohio-
1673, 

.
       {¶ 39} “Expert affidavits offered in * * * opposition to summary judgment
must comply with Civ.R. 56(E) as well as the evidence rules governing expert
opinion testimony, Evid.R. 702-705.” Frederick v. Vinton Cty. Bd. of Edn., 4th
Dist. Vinton No. 03CA579, 

, ¶ 23. Thus, “the affidavit must set
forth the * * * facts or data [the expert] considered in rendering his opinion.” 

                                          16
                                 January Term, 2022




“It is improper for an expert’s affidavit to set forth conclusory statements and legal
conclusions without sufficient supporting facts.” (Emphasis added.) Id. at ¶ 28.
        {¶ 40} Civ.R. 56(E) provides:


                Supporting and opposing affidavits shall be made on
        personal knowledge, shall set forth such facts as would be
        admissible in evidence, and shall show affirmatively that the affiant
        is competent to testify to the matters stated in the affidavit.


        {¶ 41} Regarding the admissibility of expert testimony, Evid.R. 702
provides that “[a] witness may testify as an expert if,” among other requirements,
the expert’s “testimony is based on reliable scientific, technical, or other specialized
information” and the expert “is qualified as an expert by specialized knowledge,
skill, experience, training, or education regarding the subject matter of the
testimony.” The facts or data upon which the expert bases an opinion must be those
“perceived by [him] or admitted in evidence at the hearing,” as provided by Evid.R.
703. Under Evid.R. 704, an expert’s opinion “is not objectionable solely because
it embraces an ultimate issue to be decided by the trier of fact,” if the expert’s
opinion is otherwise admissible.
        {¶ 42} I would conclude that the Sixth District erred when it determined
that the trial court should have struck Rennell’s affidavit. Bliss submitted Rennell’s
affidavit in response to Johns Manville’s summary-judgment motion. In that
response, it was Bliss’s burden to put forth evidence to establish that Johns
Manville was not entitled to judgment as a matter of law because genuine issues of
material fact remained. Bliss met his burden with Rennell’s affidavit. Rennell
simply set forth his expert opinion based on facts that he observed from reviewing
evidence that was in the record.




                                           17
                             SUPREME COURT OF OHIO




       {¶ 43} Even without Rennell’s affidavit, Bliss presented evidence that the
guard was not bolted in place at the time of Bliss’s injury. Bliss testified in his
deposition that the bolts had been removed and were sitting on top of the machine
and that he told this fact to his supervisor, Paul Culbertson. Culbertson admitted in
his affidavit that in 2013, there was a prior incident with another employee who
sustained a hand injury after opening the unbolted access window on the lift apron.
Culbertson stated that after the 2013 incident, Johns Manville “bolted down the
access windows” on the lift aprons of the Base Fiber Feeder. Culbertson further
stated that his investigation showed that the access window on the machine on
which Bliss was injured “was not bolted down.”
       {¶ 44} Thus, based on evidence other than Rennell’s affidavit—i.e., Bliss’s
own deposition testimony and Culbertson’s affidavit—Bliss met his burden of
establishing that a question of fact remained as to whether Johns Manville
deliberately removed the equipment safety guard on the lift apron.
       {¶ 45} Accordingly, I would conclude that the Sixth District erred when it
reversed the trial court’s judgment denying summary judgment to Johns Manville.
The Sixth District determined, as a matter of law, that the modified lift apron was
not an “equipment safety guard” and that therefore the case should never have gone
to the jury. 

, 

. The Sixth District
stated that “a lift apron designed to see inside of and allow access to a machine does
not become an object designed to shield the employee simply because bolts were
added to it.” Id. at ¶ 37. But Bliss presented evidence, when construed in his favor,
establishing that a question of fact remained as to whether Johns Manville
deliberately removed the bolts on the access window of the lift apron.
       {¶ 46} Lastly, as Bliss points out, in addition to receiving a jury verdict
under R.C. 2745.01(C), he also obtained a jury verdict under R.C. 2745.01(A),
which provides for recovery when a tortious act is committed “with the intent to
injure another or with the belief that the injury was substantially certain to occur.”




                                         18
                                January Term, 2022




The Sixth District held that Bliss did not establish that there was a question of fact
regarding this subsection either and that therefore, this claim should not have gone
to the jury. 

. I disagree. Bliss’s evidence established that
a question of fact remained regarding whether Johns Manville knew that another
injury was substantially certain to occur.
       {¶ 47} For the foregoing reasons, I dissent and would reverse the judgment
of the Sixth District Court of Appeals. Following a favorable verdict based on a
full record, de novo review of a trial court’s decision to deny summary judgment
cannot include a reviewing court weighing the evidence against the nonmoving
party, ignoring pertinent evidence, and misapplying the law.
       BRUNNER, J., concurs in the foregoing opinion.
                               _________________

       Gallon, Takacs & Boissoneault Co., L.P.A., Kevin J. Boissoneault, and
Jonathan M. Ashton, for appellant.

       Bugbee & Conkle, L.L.P., Mark S. Barnes, and Gregory B. Denny, for
appellee.

       Murray & Murray Co., L.P.A., and Margaret M. Murray, urging reversal
for amicus curiae Ohio Association for Justice.
       Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, urging
affirmance for amici curiae Ohio Manufacturers’ Association and National
Federation of Independent Businesses/Ohio.
                               _________________




                                         19