ORIGINAL - Supreme Court of Ohio Laurie Meadows ("Appellants"), as to Parker only. In the courts...

ORIGINALIN THE SUPREME COURT OF OHIO

JASON MEADOWS, etal.,

Plaintiffs/Appellants,

V.

AIR CRAFT WHEELS, LLC, et al:,

Defendants/Appellees.

CASE NO. 12-0619

On Appeal from the Eighth DistrictCourt of Appeals, Cuyahoga County

Court of Appeals Case No. CA 11096782

MOTION TO DISMISS

Charles V. Longo (#0029490)(Counsel of Record)Matthew D. Greenwell (#0077883)CHARLES V. LONGO, CO., L.P.A.25550 Chagrin Blvd., Suite 320Beachwood, Ohio 44122(216) 514-1919 (voice)(216) 593-0914 (facsimile)[email protected]@cvlongolaw.com

Counselfor Plaintiffs-Appellants,Jason Meadows and Laurie Meadows

Martin T. Galvin (#0063624)(Counsel of Record)Brian Gannon (#0077442)Marc Groedel (00163 51)REMINGER CO., L.P.A.1400 Midland Building101 Prospect Avenue WestClPvelanrh (Jhi-- dd1155

(216) 687-1311 (voice)(216) 687-1841 (facsimile)[email protected]@[email protected]

Counsel for Defendant-Appellee,Air Craft YVheels, LLC

Scott A. King(#0037582)(Counsel of Record)Terry W. Posey, Jr. (#0078292)THOMPSON HINE LLPAustin Landing I10050 Innovation DriveSuite 400Dayton, Ohio 45342-4934(937) 443-6560 (voice)(937) 443-6635 (facsimile)Scott:[email protected]

John R. Mitchell (#0066759)Eric S. Daniel (#0078218)THOMPSON HINE LLP127 Public Square, Suite 3900Cleveland, Ohio 44114-1291(216) 566-5847 (voice)(216) 566-5800 (facsimile)[email protected]@ThompsonHine.com

Counselfor Defendant-Appellee,Parker Hannifin Corp.

MAY 112012

CLERK OF COURTSUPREME COURT OF pH10

Pursuant to S.Ct. Prac. R. 14.4, Defendant/Appellee, Parker Hannifin Corp. ("Parker"),

moves the Court for an Order dismissing the appeal of Plaintiffs/Appellants Jason Meadows and

Laurie Meadows ("Appellants"), as to Parker only.

In the courts below, Parker was alleged to be liable to Appellants as a member of a joint

venture and for its supposed direct negligence. The Eighth District Court of Appeals affirmed

the trial court's entry of summary judgment, holding that Appellants had no evidence to support

either theory.

Appellants' Propositions of Law all focus on the interpretation of the employer

intentional tort statute, R.C. 2745.01. None of the Propositions of Law address the joint venture

or negligence issues, leaving the Eighth District's holdings intact. Parker is therefore a non-

interested party before this Court, and should be excused from further participation. A

memorandum in support is attached.

Respectfully submitted,

d4 l'''_ A-s ,Scott A. King (#0037582)(Counsel of Record)Terry W. Posey, Jr. (#0078292)THOMPSON HINE LLPAustin Landing I10050 Innovation DriveSuite 400Dayton, Ohio 45342-4934(937) 443-6560 (voice)(937) 443-6635 (facsimile)[email protected]

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John R. Mitchell (#0066759)Eric S. Daniel (#0078218)THOMPSON HINE LLP127 Public Square, Suite 3900Cleveland, Ohio 44114-1291(216) 566-5847 (voice)(216) 566-5800 (facsimile)[email protected]]@ThompsonHine.com

Counsel for Defendant-Appellee,Parker Hannifin Corp.

I. INTRODUCTION

On April 13, 2012, Appellants fi led a Notice of Appeal and Memorandum in Support of

Jurisdiction. The Notice of Appeal names Parker and Defendant-Appellee Air Craft Wheels,

LLC ("ACW ') as Appellees.

The Memorandum in Support of Jurisdiction raises two Propositions of Law, both of

which go to statutory definitions contained withirrR.C. 2745.01(C), as it pertains to employer

intentional torts.

Parker was not Meadows's employer, and Appellants only sought to hold Parker liable on

the theory that it was engaged in ajoint venture with ACW or had been directly negligent.

Parker received summary judgment, with both lower courts finding that there was no evidence to

support either theory.

This leaves Parker as a party without a contention in this appeal. If the Court accepts the

Propositions of Law, Parker may be required to participate in an action in which it has already

successfully received judgment, a judgment which has not been appealed to this Court. Parker

therefore respectfully requests that it be dismissed from this case.

II. BACKGROUND

A. The trial court proceedings.

On July 31, 2008, the Meadows commenced Case No. 666619 in the Cuyahoga County

Common Plea Court against ACW, Parker, and AirGas Safety, Inc. ("AirGas"). That action was

dismissed and on March 18, 2010 refiled as Case No. 721595.' A copy of the Complaint is

attached as Exhibit A.

' On May 11, 2011, Appellants voluntarily dismissed their claims against AirGas.

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Meadows was employed by Parker unti12002. Meadows v. Air Craft Wheels, LLC,

Eighth Dist. App. No. 96782, 2012-Ohio-269, ¶ 21 ("Opinion"). In 2004, Parker sold to ACW

the foundry at which Meadows had worked. Id. After ACW bought the foundry, it hired

Meadows to work there.

In 2006 (four years after the termination of his employment with Parker and two years

after Parker sold the foundry to ACW), Meadows, while an employee of ACW, was injured at

work. Id. In the Complaint, Meadows alleged that ACW had committed an employer intentional

tort, and that AirGas had supplied defective personal protective equipment.

Liability against Parker was premised on two theories: (1) after the sale of the foundry to

ACW, Parker had engaged in a jointventure with ACW (Complaint, ¶¶84-103) and was

therefore jointly liable with ACW for an employer intentional tort, and (2) Parker was directly

negligent (Complaint, ¶¶ 104-124).

On June 18, 2010, Parker filed a Motion for Summary Judgment. On October 13, 2010,

the trial court granted the Motion.

On January 28, 2011, ACW filed its own Motion for Summary Judgment, which was

granted on April 13, 2011.

B. The Appeal to the Eighth District.

Appellants timely filed a Notice of Appeal to the Eighth District Court of Appeals, Case

No, CA-11-06782. A copy of their merits brief is attached as Exhibit B. Appellants raised two

Assignments of Error:

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1. The trial court erred when it granted Appellee Air Craft Wheels, LLC'sMotion for Summary Judgment because Appellants presented sufficient evidencedemonstrating that ACW committed an employer intentional tort under R.C.2745.01.

2. The trial court erred when it granted Appellee Parker Hannifin Corporation'sMotion for Summary Judgment because Plaintiffs presented sufficient evidenceestablishing Parker's direct liability and/or vicarious liability as a joint venture.

On January 26, 2012, the Eighth District issued its Journal Entry and Opinion affirming

summary judgment in favor of Parker and ACW. As to the claims for direct negligence, the

Eighth District held that Parker's training of Meadows when it owned the foundry did not

"extend[] a duty beyond the employment relationship," which ended when Meadows left

Parker's employment in 2002. Opinion, ¶ 29. The Eighth District also held that Appellants

failed "to show how Parker's training of employees, maintenance and equipment repairs,

handling and storage of magnesium ingots, or any other pre- or post- sale conduct was a

proximate cause of [Jason's] injuries." Id. The Eighth District concluded by stating that "the

evidence fails to support a finding of breach of duty or proximate cause" and the "direct claims

of negligence fail as a matter of law." Id. at ¶ 31.

The Eighth District also affirmed the trial court's holding that "the evidence herein fails

to support a finding that ACW and Parker were engaged in a joint venture." Opinion, ¶ 23. The

Eighth District reached this conclusion after reviewing the asset purchase agreement between

Parker and ACW (Id., ¶ 24), the lease agreement (¶ 26), the network procurement agreement

(¶ 27), and the factual relationship between Parker and ACW. Id., ¶ 28. Because "Parker did not

have an equal right to direct and govem the operations, policies, or employees of ACW ... the

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arrangement did not amount to a joint venture." Id., ¶¶ 27-28. The Eighth District affirmed the

decision granting summary judgment in favor of Parker.

The Eighth District also affirmed the trial court's entry of summary judgment in favor of

ACW. Id., ¶ 19. Like the trial court, the Eighth District found that Appellants could not prove a

claim of employer intentional tort against ACW. Id.

C. The current appeal.

On April 13, 2012, the Meadows filed the Notice of Appeal and Memorandum in Support

of Jurisdiction in this case. The Meadows raised two Propositions of Law:

An "equipment safety guard" under R.C. 2745.01(C) includes not only thosedevices attached to a machine, but includes other safety equipment and devicesdesigned to protect an employee from the hazards of his or her employment.

2. A plain, natural and ordinary reading of "deliberate misrepresentation of a toxicor hazardous substance" under R.C. 2745.01(C) is not limited to only instanceswhere the misrepresentation surrounds the "[nature or degree] of a toxic orhazardous substance."

Both Propositions of Law only pertain to R.C. 2745.01, the employerintentional tort

statute. None of the Propositions of Law (or anything else in Appellants' Memorandum in

Support of Jurisdiction) discusses the holdings by the Eighth District or the trial court that there

was no evidence of a joint venture or to support a direct negligence theory against Parker.

III. DISCUSSION

The appeal to this Court only involves the employer intentional tort claims against ACW.

Even if the Court were to adopt both of Appellants' Propositions of Law, it would not affect the

judgments regarding Appellants' joint venture and direct negligent claims. If the Court adopted

the Propositions of Law, the matter would be remanded with instructions for the Eighth District

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to reconsider its decision in light of the interpretations of R.C. 2745.01. In that instance, none of

the analyses would change the Eighth District's holdings that no joint venture existed as a matter

of law (Opinion, ¶ 27-28) or that Parker had no breach of duty or proximate cause to Jason's

injury (Opinion, ¶ 31), and therefore, the negligence claim failed.

This Court has regularly dismissed appeals that would only result in a "vain act."

Verizon N. Inc. v. PUC of Ohio, 101 Ohio St.3d 91, 2004-Ohio-44, 801 N.E.2d 456. Requiring

Parker to participate in this appeal would be a vain act. Even if Appellants were to prevail, as to

Parker it would not matter, as they have not appealed the Eighth District's holdings as to Parker.

Parker should be dismissed from this appeal.

IV. CONCLUSION

Because Appellants have not appealed the holdings of the lower courts that Parker was

not engaged in a joint venture and was not directly negligent, i.e., the holding of the lower courts

that Parker was entitled to summary judgment as a matter of law, Parker should not be a party to

these proceedings. Parker respectfully requests that it be dismissed from this appeal.


Scott A. King(#0037582)(Counsel of Record)Terry W. Posey, Jr. (#0078292)THOMPSON HINE LLPAustin Landing I10050 Innovation DriveSuite 400Dayton, Ohio 45342-4934(937) 443-6560 (voice)(937) 443-6635 (facsimile)Scott. [email protected]

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John R. Mitchell (#0066759)Eric S. Daniel (#0078218)THOMPSON HINE LLP127 Public Square, Suite 3900Cleveland, Ohio 44114-1291(216) 566-5847 (voice)(216) 566-5800 (facsimile)[email protected]@ThompsonHine.com

Counselfor Defendant-Appellee,Parker Hannifin Corp.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing has been served by ordinary U.S. mail, this

le day of May, 2012 to the following:

Charles V. LongoMatthew D. GreenwellCHARLES V. LONGO, CO., L.P.A.25550 Chagrin Blvd., Suite 320Beachwood, Ohio 44122Counsel for Plaintiffs-Appellants,Jason Meadows and Laurie Meadows

Martin T. Galvin, Esq.Marc W. Groedel, Esq.Brian T. Gannon, Esq.REMINGER CO., LPA1400 Midland Building101 Prospect Avenue WestCleveland, Ohio 44115Counsel for Defendant-Appellee,Air Craft Wheels, LLC

Couns

697so5.1

SUMMONS IN A CIVIL ACTION COURT OF COMMON PLEAS, CUYAHOGA COUNTY JUSTICE CENTER

CASE NO. SUMMONS NO.

CV10721595 D2 CM 15354078

JASON MEADOWS, ET AL PLAINTIFFvs

AIR CRAFT WHEELS, LLC, ET AL DEFENDANT

PARKER HANNIFIN COROPRATION

C/O CT CORPORATION SYSTEM

1300 EAST NINTH STREET

CLEVELAND OH 44114-0000

Said answer is required to be served on:

Planafl v Attorney

4W

CHARLES V LONGO

25550 CHAGRIN BOULEVARD

SUITE 320

BEACHWOOD, OH 44122-0000

Case has been assigned to Judge:

JOHN P O'DONNELL

Do not contact judge. Judge's name is given forattorney's reference only.

DATE

Mar 30, 2010 BY.

COMPLAfNTFILED 03/18/2010

I I'II'I IIII^ III^^ IIIII ÎIII IIIII ^ÎI) I"Î IÎI IIII

Cfv4SN130

CLEVELAND, OHIO 44113

Rule 4 (B) Ohio

Rules of CivilProcedure

You have been named defendant in a complaint(copy attached hereto) tiled in Cuyahoga CountyCourt of Common Pleas, Cuyahoga County JusticeCenter, Cleveland, Ohio 44113, by the plaintiffnamed herein.

, Youareherebysummoned and required toanswer the complaint within 28 days after serviceof this summons upon you, exclusive of the day ofservice:

Said answer is required to be served on Plaintiff sAttorney (Address denoted by arrow at left.)

Your answer must also be filed with the courtwithin 3 days after service of said answer onplaintift's attorney.

If you fail to do so, judgment by default will berendered against you for the relief demanded in thecomplaint.

GERALD E. FUERST

ZTTTT:T Pleas.Depuw

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

JASON MEADOWS4106 Wellington AvenueParma, Ohio 44134

CASE NO.

JUDGE

and

LAURIE MEADOWS4106 Wellington AvenueParma, Ohio 44134

Plaintiffs,

-vs-

AIR CRAFT WHEELS, LLCB. & Mcd., Inc.388 S. Main St., Suite 500Akron, Ohio 44311

and

PARKER HANNIFIN CORPORATIONc/o C T Corporation System1300 East Ninth StreetCleveland, Ohio 44114

and

AIRGAS SAFETY, INC.c/o C T Corporation System1300 East Ninth StreetCieveland, Ohio 44114

COMPLAINT

(Jury Demand Endorsed Hereon)

and

AIRGAS SAFETY, INC., dbaRADNOR PRODUCTSc/o C T Corporation System1300 East Ninth StreetCleveland, Ohio 44114

and

RICHARD CORDRAY, OHIOATTORNEY GENERALState Office Tower30 E. Broad Street, 17th FloorColumbus, Ohio 43215-3428

and

JOHN DOE I THROUGH IV"Name Unknown"

and

JOHN DOE CORP. V THROUGH VII"Name Unknown"

Defendants.

Now come Plaintiffs Jason Meadows and Laurie Meadows, by and through undersigned

counsel, and for their Complaint against Defendants state the following:

PARTIES

1. At all times relevant herein, Plaintiff, Jason Meadows, is an individual residing at

4106 Wellington Avenue, Parma, Ohio.

2. At all times relevant herein, Plaintiff, Laurie Meadows, is an individual residing

at 4106 Wellington Avenue, Parma, Ohio and is the lawful wife of Jason Meadows.

3. Based upon all reasonable information and belief, Defendant, Air Craft Wheels,

L.L.C. (hereinafter "Air Craft Wheels") is an Ohio Limited Liability Company with its

principal place of business located at 1158 Center Road, Avon, Ohio conducting business

within C4yahega County, Oilu-o ar,d is in the business of manufacturing, designing, casting,

forming, selling, marketing and/or distributing magnesium and aluminum castings.

4. Based upon all reasonable information and belief, and at all times relevant,

Defendant Air Craft Wheels was and is the employer of Plaintiff, Jason Meadows.

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5. Based upon all reasonable information and belief, Defendant, Parker Hannifin

Corporation (hereinafter "Parker"), is an Ohio Corporation with its corporate headquarters

located at 6035 Parkland Boulevard, Cleveland, Ohio, conducting business within the State of

Ohio, County of Cuyahoga.

6. Based upon all reasonable information and belief, Defendant Parker is an Ohio

Corporation with its Aircraft Wheel & Brake Division located at 1160 Center Road, Avon,

Ohio and in the business of manufacturing, casting, forming, designing, selling, marketing

and/or distributing aircraft wheel and brake systems and related hydraulic products.

7. Based upon all reasonable information and belief, Defendant Parker's Aircraft

Wheel & Brake Division located at 1160 Center Road is in the business of storing,

warehousing, buying, selling, distributing, shipping, and/or transporting raw metals including

magnesium to foundries, including Defendant Air Craft Wheels.

8. Based upon all reasonable infonnation and belief, Defendant, Airgas Safety, Inc.

(hereinafter "Airgas"), is a foreign corporation incorporated under the laws of Delaware and

conducting business within the State of Ohio, County of Cuyahoga with its principal place of

business located at 6055 Rockside Woods Boulevard, Independence, Ohio conducting business

within the State of Ohio, County of Cuyahoga.

9. Based upon all reasonable information and belief, Radnor Products is a registered

trade/brand name andlor fictitious name of Defendant Airgas which is in the business of

manufacturing, assembling, marketing, distributing and/or selling Radnor brand safety

products, including the Radnor® 1200 Series Universal Lens Eyewear safety glasses sold to

Defendant Air Craft Wheels and worn by Plaintiff Jason Meadows at the time of the incident.

10. Defendant Airgas actively solicited, recommended, warranted, sold, distributed

and/or supplied Defendant Air Craft Wheel and its employees, representatives, agents and/or

servants with safety products, including the Radnor® 1200 Series Universal Lens Eyewear

safety glasses provided to and worn by Plaintiff Jason Meadows at the time of the incident.

11. John Doe I through IV are parties not known despite diligent efforts to ascertain

their identities who are intended to be the individual(s), named Defendants upon identification,

who are or was an employee, agent, servant and/or representative of Defendants and/or John

Doe Corp. and/or whose conduct was negligent, malicious, willful and/or wanton and jointly

and severally liable through their acts and/or omissions for the injuries and damages suffered by

Plaintiffs.

12. John Doe Corp. V through VII are parties not known despite diligent efforts to

ascertain their identities that are intended to be business entities, named Defendants upon

identification, who are parent entities and/or subsidiaries of Defendants or other unknown

corporations, companies, partnerships, limited liability companies and/or similar legal entities,

whose conduct was negligent, malicious, willful and/or wanton and jointly and severally liable

through their acts and/or omissions for the injuries and datnages suffered by Piaintiffs.

13. Richard Cordray, the Ohio Attorney General, is a named party in his official

capacity as Attorney General for the State of Ohio and pursuant to R.C. 2721.12(A).

14. Notice of the within declaratory judgment cause of action (Count Nine) is being

sent to the Attorney General in accordance to R.C. 2721.12(A) and Rule 4.1 of the Ohio Rules

of Civil Procedure.

4

FACTUALBACKGROUND

15. Plaintiffs incorporate by reference each and every statement and allegation

contained in the foregoing paragraphs as if the same were fully rewritten at length herein.

16. The location of the incident which gives rise to this action occurred at 1158 / 1160

Center Road, Avon, Ohio, which is and was at all times relevant herein, currently and formerly

owned, maintained, controlled and operated by Defendant Parker and/or Defendant Air Craft

Wheels.

17. Plaintiff Jason Meadows was interviewed by Michael Sparrow and originally by

Defendant Parker around 1997 or 1998 to work at its Aircraft Wheel & Brake Division located

at 1160 Center Road, Avon, Ohio which was in the business of manufacturing, casting,

forming, designing, selling, marketing and/or distributing aircraft wheel and brake systems and

related hydraulic products which were casted from magnesium and aluminum.

18. Defendant Parker designed, engineered, and/or implemented the manufacturing

and/or magnesium foundry operation and/or process which failed to include a procedure,

process or system to preheat the magnesium ingots to remove moisture which was an is an

industry standard absent of which creates a substantial risk of explosion.

19. Defendant Parker temporary let Plaintiff Jason Meadows go from his employment

with Parker sometime in 2002 or 2003.

20. Based upon all reasonable information and belief, in early 2004, Defendant Air

Craft Wheels, a limited liability company, was formed and/or created for the purpose of

continuing, acquiring, and/or assuming Defendant Parker's Aircraft Wheel & Brake Division

located at 1160 Center Road, Avon, Ohio.

5

21. Those individuals who created Defendant Air Craft Wheels to continue and/or

assume Defendant Parker's foundry operations and consisted of a substantial number of

Defendant Parker managers, personnel, employees, directors, and/or officers who operated,

managed and/or worked at Defendant Parker's Aircraft Wheel & Brake Division located at

1160 Center Road, Avon, Ohio.

22. Based upon all reasonable information and belief, Defendant Parker split its real

property commonly known as 1160 Center Road, Avon, Ohio into two separate parcels, the

second parcel being commonly known as 1158 Center Road, Avon, Ohio.

23. In 2004, Defendant Air Craft Wheels and Defendant Parker intended and did

created a continuous and ongoing contractual business relationship (expressed and/or implied)

to develop, design, manufacture, cast, assemble, market distribute and sell magnesium parts for

the use in aircraft manufacturing which each Defendant sharing in the profits and risks of the

enterprise.

24. Neither Defendant Parker nor Defendant Air Craft Wheels formally trained,

advised, instructed or wamed Plaintiff Jason Meadows on the proper utilization safety and

personal protection equipment, such as face shields, flame retardant coats, and leggings and/or

related safety equipment or that the use of such equipment was mandatory.

25. Neither Defendant Parker nor Defendant Air Craft Wheels provided Plaintiff with

the necessary and required safety devices, equipment and/or safeguards, including but not

limited to, leggings, spats, protective eyewear, face shields and/or fire retardant clothing, in

violation of Occupational Safety and Health Administration ("OSHA") and state regulations

despite knowledge of the risk its employees were exposed, including but not limited to splashes

6

of molten magnesium and/or explosions while the employees performed charging, drossing,

and/or pouring operations in the foundry.

26. Neither Defendant Parker nor Defendant Air Craft Wheels required Plaintiff Jason

Meadows to utilize required personal safety protection and devices, including leggings, spats,

eye protection, face shields, and/or flame retardant clothing in violation of OSHA and state

regulations despite knowledge of the substantial potential for motel magnesium splashes and

explosions.

27. In June 2004, Mr. Michael Sparrow contacted Plaintiff Jason Meadows

surrounding reemployment with Defendant Air Craft Wheels which was operating at the same

location, 1160 Center Road, Avon, Ohio and conducting the same foundry operations and

applications, including the manufacturing, casting, forming, designing, selling, marketing

and/or distributing aircraft wheel and brake systems and related hydraulic products which were

casted from magnesium and aluminum.

28. Plaintiff Jason Meadows was a reservist with the National Guard and was called

to full time active duty in November 2004 and learned of his orders to be deployed to Iraq

29. Plaintiff Jason Meadows returned from Lraq in October of 2005 and served out his

remaining active duty status over the following months.

30. In January 2006, Plaintiff Jason Meadows returned to his former employment

with Defendant Air Craft Wheels at the magnesium/aluminum foundry located at 1158 Center

Road in Avon Ohio.

31. On August 1, 2006, Plaintiff Jason Meadows, was employed by Defendant Air

Craft Wheels and was working within the course and scope of his employment.

7

32. On the morning of August 1, 2006, Plaintiff Jason Meadows was setting

magnesium ingots in a fumace which was part of his general and routine job duties and

responsibilities when suddenly and without waming, an explosion occurred which threw molten

magnesium throughout the foundry.

33. Because of the explosion and Defendants' negligent, intentional and/or reckless

conduct described herein, molten magnesium coated Plaintiff's body and face, resulting in

severe second and third degree bums, including bums to seventy (70%) to eighty (80%) percent

of Plaintiff s comeas, leaving Plaintiff partially and potentially permanently blind.

34. As a further result of the August 1, 2006 explosion and Defendants' negligent,

intentional and/or reckless conduct described herein, Plaintiff Jason Meadows suffered severe

and permanent physical injuries which include numerous second and third degree bums

throughout his body, including his eyes, back, neck and legs, as well as permanent emotional

and mental injuries.

35. The explosion and Defendants' negligent, intentional and/or reckless conduct

described herein, caused Plaintiffs to incurred unnecessary medical bills, hospitalization, and/or

related unnecessary health care expenses.

36. As a further result of the explosion and his injuries, Plaintiff Jason Meadows has

suffered lost wages and benefits and his ability to hold gainful employment and his ability to

eam a living has been permanently and substantially impaired and diminished.

37. Shortly after August 2006 explosion, OSHA conducted an inspection and

investigation into the foundry explosion. As a result of the investigation, Defendant Air Craft

Wheels was cited and fined for countless safety violations, including its failure to provide and

require its employees to utilize mandated safety equipment such as leggings, spats, protective

eyewear, face shields and/or fire retardant clothing.

COUNT ONE(Employer Intentional Tort against Air Craft Wheels)

38. Plaintiffs incorporate by reference each and every allegation contained in the

foregoing paragraph as if the same were fully rewritten at length herein.

39. On August 1, 2006, Plaintiff Jason Meadows, was working within the course and

scope of his employment at Defendant Air Craft Wheels and was setting magnesium ingots in a

furnace which was part of his general and routine job duties and responsibilities when suddenly

and without warning, an explosion occurred which threw molten magnesium throughout the

foundry.

40. Because of the explosion, molten magnesium coated Plaintiff's body and face,

resulting in severe second and third degree burns, including bums to seventy (70%) to eighty

(80%) percent of Plaintiffs comeas, leaving Plaintiff partially and potentially permanently

blind.

41. As a further result of the August 1, 2006 explosion, Plaintiff Jason Meadows

suffered severe and permanent physical injuries which include numerous second and third

degree burns throughout his body, including his eyes, back, neck and legs, as well as permanent

emotional and mental injuries.






9

43. Defendant Air Craft Wheels negligently, intentionally, recklessly, and willfully

failed to provide Plaintiff with a place of employment which was safe to engage and complete

his work, in direct violation of Ohio common law and Ohio Revised Code 2745.01 -

Employer's liability for intentional tort, Ohio Revised Code 4101.11 - Duty of employer to

protect employees and frequenters, Ohio Revised Code 4111.12 - Duty of employer to furnish

safe place of employment, and in violation of 29 U.S.C.S. § 651 et seq.

44. Defendant Air Craft Wheels negligently, intentionally and/or recklessly failed to

train, advise, instruct or wam its employees, including Plaintiff Jason Meadows, on the proper

utilization safety and personal protection equipment, such as face shields, flame retardant coats,

and leggings and/or related safety equipment or that the use of such equipment was mandatory.


train, advise and/or instruct its employees, including Plaintiff Jason Meadows in a proper

handling, storage, and melting of magnesium ingots, and failed to implement or require

continuing safety training, seminars, discussions or classes.

46. Defendant Air Crafl Wheels negligently, intentionally and/or recklessly failed to

provide its employees, including Plaintiff Jason Meadows, with the necessary and required

safety devices, equipment and/or safeguards, including but not limited to, leggings, spats,

protective eyewear, face shields and/or fire retardant clothing, in violation of OSHA and state

regulations despite knowledge of the risk its employees were exposed, including but not limited

to splashes of molten magnesium and/or explosions while the employees perfozrned charging,

drossing, and/or pouring operations in the foundry.


require its employees, including Plaintiff Jason Meadows, utilize necessary and required safety

10

devices, equipment and/or safeguards, including but not limited to, leggings, spats, protective

eyewear, face shields and/or fire retardant clothing, in violation of OSHA and state regulations

despite knowledge of the risk its employees were exposed, including but not limited to splashes

of molten magnesium and/or explosions while the employees performed charging, drossing,

and/or pouring operations in the foundry.

48. Defendant Air Craft Wheels negligently, intentionally, and/or recklessly failed to

require, implement a system, process and/or procedure for preheating the magnesium ingots to

remove moisture and failed to require, implement a system, process and/or procedure for the

proper storage and handling of the magnesium ingots in foundry operations,

49. Defendant Air Craft Wheels knew or should have known that the placement of

magnesium ingots in furnace crucibles without a procedure, process and/or system to preheat

the magnesium ingots to remove moisture created an inherently dangerous condition probable

to cause an explosion.

50. The placement of magnesium ingots in furnace crucibles without a procedure,

process and/or system to preheat the magnesium ingots to remove moisture was an inherently

dangerous process and/or procedure creating a high risk of explosion for which injuries and/or

death of Defendant's employees, including Plaintiff Jason Meadows were substantially certain

to occur.

51. Defendant Air Craft Wheels knew or should have known that requiring Plaintiff

Jason Meadows to place magnesium ingots into the furnace crucibles without adequate and

required personal safety equipment or training subjected Plaintiff to serious injuries and/or

death which were substantially certain to occur.

11

52. Defendant Air Craft Wheels required Plaintiff Jason Meadows to perform the

inherently dangerous process and/or procedures set forth above without the appropriate safety

equipment and/or training despite Defendant's knowledge of the inherently dangerous process,

procedure and/or condition.

53. Defendant Air Craft Wheels negligently, recklessly, intentionally, deliberately

and willfully required Plaintiff Jason Meadows to perform the above described inherently

dangerous processes and/or procedures without regard to Plaintiffs safety and well being, with

the knowledge that serious injury and/or death were substantially certain to occur.

54. Further, Defendant Air Craft Wheels created and/or maintained a dangerous

process, procedure, instrnunentality and/or condition within its business operation, did not

eliminate it, did not warn and/or instruct against it, and thereby negligently, recklessly,

maliciously, willfully, wantonly, deliberately and/or intentionally exposed Plaintiff Jason

Meadows to the inherently dangerous conditions substantially certain to cause injury or death.

55. The negligent, reckless, malicious, willful, wanton, deliberate and/or intentional

acts and/or omissions of Defendant Air Craft Wheels manifested a flagrant disregard for the

sa fiety of Plaintiff Jason Meadows.

56. As a direct and proximate result of the intentional, reckless, willful, wanton,

and/or negligent acts and omissions of Defendant Air Craft Wheels, Plaintiff Jason Meadows

sustained severe and permanent injuries, pain and suffering, and mental anguish.

57. Further, as a direct and proximate result of the intentional, reckless, willful,

wanton, and/or negligent acts and omissions of Defendant Air Craft Wheels, Plaintiff Jason

Meadows incurred medical bills, hospitalization and related health expenses and has lost

12

income and the ability to hold gainful employment thereby substantially impairing/diminishing

his ability to earn a living.

COUNT TWO(Negligence Claim Against Defendant Air Craft Wheels)

58. Plaintiffs incorporate by reference each and every allegation contained in the

foregoing paragraph as if the same were fully rewritten at length herein.




and without waming, an explosion occurred which threw molten magnesium throughout the

foundry.

60. Because of the explosion, molten magnesium coated PlaintifPs body and face,

resulting in severe second and third degree bums, including bums to seventy (70%) to eighty

(80%) percent of Plaintiff's comeas, leaving Plaintiff partially and potentially pennanently

blind.

61. As a further result of the August 1, 2006 explosion Plaintiff Jason Meadows


degree bums throughout his body, including his eyes, back, neck and legs, as well as permanent


62. Shortly after August 2006 explosion, OSHA conducted an inspection a,*:d





13

63. At all times relevant herein, Defendant Air Craft Wheels were negligent by

requiring Plaintiff Jason Meadows to perform the inherently dangerous process and/or

procedures set forth above without the appropriate safety equipment and/or training despite

Defendant's knowledge of the inherently dangerous process, procedure and/or condition.

64. Defendant Air Craft Wheels was negligent in its failure to provide the necessary

training to Plaintiff Jason Meadows or sufficiently wam him and other employees of the

dangers presented when placing magnesium ingots without adequate personal safety equipment.

65. Defendant Air Craft Wheels was negligent in requiring Plaintiff Jason Meadows

to place magnesium ingots into the fumace crucibles without adequate and required personal

safety equipment and/or devices or implementing a process or procedure to preheat the

magnesium ingots to avoid explosions and was substantial and contributing cause in the

magnesium explosion on August 1, 2006, which severely and permanently injured Plaintiff

Jason Meadows.

66. As a direct and proximate result of the negligent acts and/or omissions of

Defendant Air Craft Wheels and/or their agents and/or employees, Plaintiff Jason Meadows

sustained severe and permanent injuries, pain and suffering, and mental anguish.

67. Further, as a direct and proximate result of the negligent acts and omissions of

Defendant Air Craft Wheels, Plaintiff Jason Meadows incurred unnecessary medical bills,

hospitalization, and/or related unnecessary health care expenses.

68. Further, as a direct and proximate result of the negligent acts and omissions of

Defendant Air Craft Wheels, Plaintiff Jason Meadows incurred medical bills, hospitalization

and related health expenses and has lost income and the ability to hold gainful employment

thereby substantially impairing/diminishing his ability to earn a living.

14

COUNT THREE(Negligent Storage of Dangerous and Volatile Materials

Against Defendant Air Craft Wbeels)

69. Plaintiffs incorporate by reference, each and every allegation contained in the

foregoing paragraphs as if the same were fully rewritten at length herein, and further state:





foundry.


resulting in severe second and third degree bums, including burns to seventy (70%) to eighty

(80%) percent of Plaintiffs corneas, leaving Plaintiff partially and potentially permanently

blind.



degree bums throug.hout his body, ir.cluding his eyes, back, neck and legs, as well as permanent







15

74. Based upon reasonable belief, Defendant Air Craft Wheels maintained a storage

facility upon its premises where it stored magnesium ingots for use in Defendant's foundry

operations and applications.

75. Within this storage area, Defendant Air Craft Wheels or Defendant Parker

installed air "scrubbers" which are intended to remove contaminates from the air thereby

improving air quality at the foundry premises.

76. The "scrubbers" utilize water in this process thereby increasing the moisture in

the magnesium storage area, as well as injecting moisture into the magnesium ingots which

substantially increases the likelihood of blow back splashes and explosions in the melting and

pouring process.

77. The placement of magnesium ingots laden with moisture directly into a furnace

crucible is an inherently dangerous process and/or procedure creating a high risk of explosion

for which injuries and/or death of Defendant's employees, including Plaintiff Jason Meadows

were unreasonably exposed.

78. At all times relevant, Defendant Air Crafft Wheels negligently, intentionally,

recklessly failed and/or neglected to exercise ordinary and reasonable care in possessing,

storing, and transporting the magnesium ingots a hazardous and volatile material/substance

prior to utilizing the same it Defendant's foundry operations and applications.

79. Defendant Air Craft Wheels negligently, intentionally, recklessly failed and/or

neglected to exercise ordinary and reasonable care when storing a hazardous and volatile

material/substance in moisture free or low moisture storage facility prior to utilizing the same it

Defendant's foundry operations and applications.

16

80. Defendant Air Craft Wheels' negligent and reckless failure to store the

hazardous/volatile magnesium ingots in a moisture free or limited moisture environment was a

breach of ordinary and reasonable care subjecting its employees, including Plaintiff Jason

Meadows to a substantial risk of death or injury.

81. Defendant Air Craft Wheels' negligent and reckless failure to store the

hazardous/volatile magnesium ingots in a moisture free or limited moisture environment was a

flagrant disregard for those individuals known to Defendant who would be using the moisture

laden magnesium ingots in the foundry operations causing or at least contributing to the

magnesium explosion on August 1, 2006, which severely and permanently injured Plaintiff

Jason Meadows.

82. As a direct and proximate result of the negligent acts and/or omissions of

Defendant Air Craft Wheels, Plaintiff Jason Meadows sustained severe and permanent injuries,

pain and suffering, and mental anguish.


wanton, and/or negligent acts and omissions of Defendant Air Craft Wheels, Plaintiff Jason

Meadows incurred medical bills, hospitalization and related health expenses and has lost

income and the ability to hold gainful employment thereby substantially impairing/diminishing

his ability to eam a living.

COUNT FOUR(Joint Enterprise Liability of Defendant Air

Craft Wheels and Defendant Parker)


foregouig paragraphs as if the same were fully rewritten at length herein.

17





foundry.

86. Because of the explosion, molten magnesium coated Plaintiffs body and face,



blind.










89. At all relevant times, Defendant Air Craft Wheels and Defendant Parker intended

to associate their business enterprises as joint venture in a single enterprise for the direct and

continuing benefit of each Defendant.

90. Defendant Air Craft Wheels and Defendant Parker had and/or have an ongoing

and continuous contractual business relationship (expressed and/or implied) and/or agency

18

relationship to develop, design, manufacture, cast, assemble, market distribute and sell

magnesium parts for the use in aircraft manufacturing.

91. Defendant Air Craft Wheels and Defendant Parker created a continuing common

undertaking creating a joint and indistinct business interest in the subject matter of to jointly

develop, design, manufacture, cast, assemble, market, distribute and sells magnesium parts for

the use in aircraft manufacturing.

92. Defendant Air Craft Wheels and Defendant Parker designed, developed,

engineered, created and implemented a foundry operation and/or process of placing magnesium

ingots in furnace crucibles without a procedure, . process and/or system to preheat the

magnesium ingots to remove moisture which created an inherently dangerous condition

probable to cause an explosion creating a substantial risk of Defendants employees of being

seriously bumed, maimed and/or killed in the event of an explosion.

93. Defendant Air Craft Wheels and Defendant Parker contributed individually and

extensively with effort, property, skill, and/or knowledge to create a joint business venture

whereby each would benefit financially from each others efforts and contributions and would

share in the profits or losses of the said enterprise.

94. Defendant Air Craft Wheels and Defendant Parker had and continue to have equal

and unrestricted control and authority over the joint and indistinct business enterprise jointly

developing, designing, manufacturing, casting, assembling, marketing, distributing and selling

magnesium parts for the use in aircraft manufacturing.

95. At all relevant times, Defendant Air Craft Wheels and Defendant Parker

contractually (expressed and/or implied) agreed to share in the profits and losses of the joint

and indistinct business enterprise jointly developing, designing, manufacturing, casting,

19

assembling, marketing, distributing and selling magnesium parts for the use in aircraft

manufacturing.

96. Defendant Air Craft Wheels and Defendant Parker jointly created, maintained and

failed to eliminate the dangerous process, procedure, instrumentality andJor condition for the

benefit of their joint enterprise operation thereby negligently, recklessly, maliciously, willfully,

wantonly, deliberately and/or intentionally exposing Plaintiff Jason Meadows to the inherently

dangerous conditions substantially certain to cause injury or death.

97. Defendant Air Craft Wheels and Defendant Parker jointly failed to wam Plaintiff

Jason Meadows of the inherently dangerous process, procedure, instrumentality andlor

condition within its joint enterprise operations substantially certain to cause injury or death.

98. The designed, developed, engineered, created and implemented a foundry

operation without a industry recognized and required. procedure, process and/or system to

preheat the magnesium ingots to remove moisture or wam about the known dangers constituted

a flagrant disregard for the health and safety of those individuals known to Defendants who

would be exposed to the condition in carrying out Defendants' joint venture.

99. The designed, developed, engineered, created and implemented a foundry

operation without a industry recognized and required procedure, process and/or system to

preheat the magnesium ingots to remove moisture or warn about the known dangers resulted in

and/or substantially contributed to the magnesium explosion on August 1, 2006, which severely

and permanently injured Plaintiff Jason Meadows.

100. Defendant Air Craft Wheels and Defendant Parker joint acts and/or omissions

constituted a flagrant disregard for those individuals, including Plaintiff Jason Meadows who

were employees, agents, representatives, and/or servants of Defendants' joint venture.

20

101. As a direct and proximate result of their joint negligent acts and/or omissions of

Defendant Air Craft Wheels and Defendant Parker, Plaintiff Jason Meadows sustained severe

and permanent injuries, pain and suffering, and mental anguish.

102. Further, as a direct and proximate result of their joint negligent acts and/or

omissions of Defendant Air Craft Wheels and Defendant Parker, Plaintiff Jason Meadows

incurred unnecessary medical bills, hospitalization, and/or related unnecessary health care

expenses.

103. As a further result of his injuries, Plaintiff Jason Meadows has lost income and his

ability to hold gainful employment and his ability to earn a living has been substantially

impaired and diminished.

COUNT FIVE(Negligent Design, Engineering & Manufacture

Against Defendant Parker)

104. Plaintiffs incorporate by reference, each and every allegationcontained in the

foregoing paragraphs as if the same were fully rewritten at length herein.



fumace which was part of his general and routine job duties and responsibilities when suddenly


foundry.



(80%) percent of Plaintiffs corneas, leaving Plaintiff partially and potentially permanently

blind.

21










109. Defendant Parker owed a duty to Plaintiff Jason Meadows, a former employee,

and the employees and agents of Defendant Air Craft Wheels based upon a contractual (implied

or otherwise), employment relationship and/or in privity through a continuous business

relationship.

110. Based upon all reasonable information and belief, prior to the formation of

Defendant Air Craft Wheels and subsequent acquisition of the premises, Defendant Parker

owned operated, managed and/or control the magnesium foundry located at 1160 Center Road

in Avon Ohio which was known as Parker Hannifin's Aircraft Wheel & Brake Division.

111. The placement of magnesium ingots in furnace crucibles without a procedure,

process and/or system to preheat the magnesium ingots to remove moisture was an inherently

dangerous process and/or procedure creating a high risk of explosion for which injuries and/or

death to Defendant Parker's former employees as well as Defendant Air Craft Wheels'

employees, were substantially certain to occur.

22

112. While in exclusive control of the foundry, Defendant Parker negligently,

willfully, intentionally, and recklessly designed, engineered, and/or implemented a

manufacturing and/or magnesium foundry operation which was inherently unsafe, dangerous

and substantially certain to cause injuries to Defendant Parker's former employees, as well as

Defendant Air Craft Wheels' employees including Jason Meadows.

113. Defendant Parker designed, engineered, and/or implemented the manufacturing

and/or magnesium foundry process which was inherently unsafe, dangerous and substantially

certain to cause injuries to those limited class of individuals who are and were readily

identifiable and known to Defendant Parker and was done to fnrther its own pecuniary and

industry interests.

114. Defendant Parker created, designed, developed, engineered and/or maintained an

inherently dangerous foundry process, procedure, instrumentality and/or condition within its

business operation and failed to eliminate, warn and/or instruct its employees and others,

including agents/employees of Defendant Air Craft Wheels against the inherent dangers.

115. While in exclusive control of the foundry, Defendant Parker negligently,

intentionaily, and/or recklessly failed to i:nplement a system, process and/or procedure for

preheating the magnesium ingots to remove moisture and failed to implement a system, process

and/or procedure for the proper storage and handling of the magnesium ingots in foundry

operations, resulting in or at least substantially contributing to the magnesium explosion on

August 1, 2006, which severely and permanently injured Plaintiff Jason Meadows.

116. Defendant Parker negligently, intentionally and/or recklessly failed and/or

neglected to train, advise and/or instruct its former employees and Defendant Air Craft Wheels

23

in a proper handling, storage, and melting of magnesium ingots, the requirement, utilization

and/or availability of safety devices and equipment in melting operations.

117. Defendant Parker knew or should have known that the placement of magnesium

ingots in furnace crucibles without a procedure, process and/or system to preheat the

magnesium ingots to remove moisture created an inherently dangerous condition probable to

cause an explosion that subjected Plaintiff Jason Meadows to a high and substantial risk of

being seriously burned, maimed and/or killed in the event of an explosion.

118. Defendant Parker knew or should have known that the placing of magnesium

ingots into a furnace without implementing the proper safety process by known and identifiable

individuals, including Jason Meadows constituted a dangerous process and exposed those

individuals to a high risk of serious harm and injury.

119. Defendant Parker knew or should have known that the procedure it adopted and

utilized was dangerous and exposed known and identifiable individuals, including Plaintiff

Jason Meadows to a high risk of harm and injuries from a potential magnesium explosion.

120. While in control of the fouridry, Defendant Parker created, designed, engineered

and/or maintained an unsafe condition, did not eliminate it, did not wam and/or instruct against

it, and thereby negligently, recklessly, maliciously, willfully, wantonly, and/or intentionally

exposed limited known identifiable individuals, including Plaintiff Jason Meadows to severe

and permanent injuries, pain and suffering and mental anguish.

121. The negligent, reckless, malicious, willful, wanton and/or intentional acts and/or

omissions of Defendant Parker constituted a conscious disregard for the safety and rights of

known and identifiable individuals, including Plaintiff Jason Meadows.

24

122. As a direct and proximate result of the intentional, reckless, willful, wanton,

and/or negligent acts and omissions of Defendant Parker, Plaintiff Jason Meadows sustained

severe and permanent injuries, pain and suffering and mental anguish.


wanton andlor negligent acts and omissions of Defendant Parker, Plaintiff Jason Meadows

incurred unnecessary medical bills, hospitalization and/or related unnecessary health care

expenses.

124. As a further result of his injuries, Plaintiff Jason Meadows has lost income and his

ability to hold gainful employment and his ability to earn a living has been substantially

impaired and diminished.

COUNT SIX(Beach of Implied Warranty of Fitness AgainstDefendant Airgas, Inc., dba Radnor Products)


foregoing paragraphs as if the same were fully rewritten at length herein, and fureher state:





foundry.




blind.

25


suffered severe and pennanent physical injuries which include numerous second and third








130. Defendant Airgas is and was a "merchant" and "seller" as defined within the

meaning and scope of R.C. §1302.01(A)(5), 1302.27 and 1302.28.

131. Defendant Air Craft Wheels is and was a "buyer" as defined within the full

meaning and scope of R.C. §1302.01(A)(5), 1302.27 and 1302.28.

132. Plaintiff Jason Meadows is and was an intended beneficiary as defined within the

full meaning and scope of R.C. §1302.01(A)(5), 1302.27 and 1302.28.

133. Defendant Airgas tl-,rough and iri conjunction with its registered trade/brand name

and/or fictitiously named Radnor Products manufactures, assembles, designs, markets,

distributes and/or sells Radnor brand safety products, devices and/or equipment to companies

and individuals through Defendant Airgas stores, distributors, retailers, catalogs and/or

suppliers.

134. Defendant Airgas through and in conjunction with its registered trade/brand name

and/or fictitiously named Radnor Products is an entity who deals in personal safety products,

26

devices and/or equipment and who holds itself out as having knowledge or skill particular to the

Radnor® brand safety products, devices and/or equipment marketed, sold and/or distributed.


and/or fictitiously named Radnor Products negligently, intentionally, recklessly, and willfully

manufactured, marketed, sold and/or supplied safety eyewear products that were inherently and

unnecessarily dangerous, which failed to perform according to reasonably foreseeable uses

under ordinary and/or marketed for conditions.

136, Defendant Airgas through and in conjunction with its registered tradelbrand name

and/or fictitiously named Radnor Products marketed, sold and/or supplied the Radnor® 1200

Series Universal Lens Eyewear safety glasses to Defendant Air Craft Wheels for use in foundry

operations.

137. Defendant Airgas knew or had reason to know of the particular purpose for which

the safety eyewear was required to protect Defendant Air Craft Wheels' employees, including

Plaintiff Jason Meadows.

138. Defendant Airgas knew at the time of contracting that the stated and/or

understood particular purpose for which Defendant Air Craft Wheels intended to use the safety

eyewear, for use by its employees in foundry operations.

139. Defendant Airgas sold, supplied and distributed the Radnor® 1200 Series

Universal Lens Eyewear safety glasses wom by Plaintiff Jason Meadows at the time of the

'*!cade.n.t to DeFndar:t Air Craft vv'heeis which Defendant Airgas knew would not protect

foundry employees from splashes and/or explosions of molten magnesium in foundry

operations.

27

140. Defendant Airgas knew or should have known the dangerous nature of Air Craft

Wheels' foundry business and exposed Plaintiff to a high risk of harm by selling inadequate eye

protection to Air Craft Wheels, including the Radnor 1200 Series Universal Lens Eyewear

safety glasses worn by Plaintiff Jason Meadows at the time of the incident.

141. Defendant Air Crafl Wheels reasonably and justifiably relied on the Defendant

Airgas' skill or judgment in selecting, fumishing, and supplying suitable protective eyewear,

when the eyewear was, in fact, unfit for said particular purpose, thereby breaching an implied

warranty of fitness for a particular purpose, R.C. §1302.28.

142. Third party beneficiary Plaintiff Jason Meadows reasonably and justifiably relied

and depended on the skill and judgment of Defendants Airgas to select and furnish safety

equipment suitable for the particular purpose of protecting employees in the use of foundry

operations.


and/or fictitiously named Radnor Products marketed, sold and/or supplied safety products,

devices and/or equipment to Defendant Air Craft Wheels, which were unfit for the particular

andior ordinary purpose.

144. Defendant Airgas knew or should have known that the type of safety products,

devices and/or equipment furnished to Air Craft Wheels offered little to no safety protection

unnecessarily exposing Plaintiff Jason Meadows to substantial harm and risk of serious injuries

or death and therefore, were not fit for the ordinary purposes for which such goods are used in

violation of the implied warranty of merchantability, R.C. § 1302.27(B)(3).

28

145. The negligent, reckless, malicious, willful, wanton and/or intentional acts and/or

omissions of Defendant Airgas constituted a conscious disregard for the safety and rights of


146. As a direct and proximate result of Defendant Airgas' breach of the implied

warranty of merchantability and the implied warranty of fitness for a particular purpose,

Defendant Airgas caused Plaintiff Jason Meadows to sustain severe and permanent injuries,

pain and suffering and mental anguish.

147. Further, as a direct and proximate result of Defendant Airgas' breach of the

implied warranty of merchantability and the implied warranty of fitness for a particular

purpose, Plaintiff Jason Meadows incurred medical bills, hospitalization and/or rela`ted health

care expenses.

148. As a direct and proximate result of Defendant Airgas' breach of the implied

warranty of merchantability and the implied warranty of fitness for a particular purpose,

Plaintiff Jason Meadows has lost income and his ability to hold gainful employment and his

ability to eam a living has been substantially impaired and diminished.

COiJNT SFVNN(Fraudulent Misrepresentation Claim AgainstDefendant Airgas, Inc., dba Radnor Products)






29


foundry.



(80%) percent of Plaintiffls corneas, leaving Plaintiff partially and potentially permanently

blind.










154. Defendant Airgas, through and in conjunction with its registered trade/brand

name and/or fictitiously named Radnor Products, manufacturers, assembles, designs, markets,

distributes andlor sells Radnor brand safety products, devices and/or equipment to companies

and individuals through Defendant Airgas stores, distributors, retailers, catalogs and/or

suppliers.

155. Defendant Airgas, through and in conjunetion with its registered trade/brand

name and/or fictitiously named Radnor Products, negligently, intentionally, recklessly and

willfully misrepresented to Defendant Air Craft Wheels that the safety devices and equipment

30

supplies, including the Radnor® 1200 Series Universal Lens Eyewear safety glasses, provided

ample and adequate safety protection to Defendant Air Craft Wheels' employees, including



nameand/or fictitiously named Radnor Products, described, advertised, and falsely represented

with utter disregard and recklessness as to the truth of the representations that the safety devices

and equipment supplied, including the Radnor® 1200 Series Universal Lens Eyewear safety

glasses provided ample and.adequate safety protection to Defendant Air Craft Wheels'

employees, including Plaintiff Jason Meadows.

157. The protection afforded by the safety devices and equipment supplied by

Defendant Airgas to Defendant Air Craft Wheels was material to the transaction.


name and/or fictitiously named Radnor Products, intended to mislead Defendant Air Craft

Wheels in believing that the safety devices and equipment supplied, including the Radnor®

1200 Series Universal Lens Eyewear safety glasses, provided ample and adequate safety

protection.

159. Defendant Air Craft Wheels, to the severe detriment of Plaintiff Jason Meadows'

safety and health, justifiably relied on Defendant Airgas' representations that the safety devices

and equipment supplied, including the Radnoi 1200 Series Universal Lens Eyewear safety

glasses, provided ample and adequate safety protection.

160. As a direct and proximate result of the intentional, reckless, willful, wanton

and/or negligent acts andlor omissions of Defendant Airgas, Plaintiff Jason Meadows sustained

severe and permanent injuries, pain and suffering and mental anguish.


wanton and/or negligent acts and/or omissions of Defendant Airgas, Plaintiff Jason Meadows

incurred unnecessary medical bills, hospitalization and/or related unnecessary health care

expense.

162. As a result of his injuries, Plaintiff Jason Meadows has lost income and his ability

to hold gainful employment and his ability to earn a living has been substantially impaired and

diminished.

163. As a result of Defendant Airgas' fraudulent, deceptive and reckless conduct,

Plaintiff Jason Meadows has sustained damages and has incurred substantial expense including

attomey fees.

COUNT EIGHT(Loss of Consortium)



165. Plaintiff Laurie Meadows is and was at all times relevant herein, the lawful wife

of Plaintiff Jason Meadows.

166. By reason of the foregoing, Plaintiff Laurie Meadows has lost the services, love,

consortium and companionship of her husband and will continue to lose the services, love,

consortium and companionship of her husband into the indefinite future.

COUNT NINE(Declaratory Judgment Regarding Unconstitutionality

of Ohio Revised Code Section 2745.01)


foregoing paragraphs as if the same were fully rewritten at length herein, and fiufther state:

32

168. Amended House Bill 498 became effective April 7, 2005 and re-enacted the

Employer Intentional Tort statute, codified R.C. §2745.01. Similar attempts by the legislature

where held unconstitutional on two (2) previous occasions. The Legislature, in re-enacting

R.C. §2745.01, once again sought to supersede Ohio common law which created the employer

intentional tort cause of action.

169. Prior to the enactment of R.C. §2745.01, to establish a claim for an intentional tort

under Ohio common law, one must demonstrate (1) knowledge by the employer of the

existence of a dangerous process, procedure, instrumentality or condition within its business

operation; (2) knowledge by the employer that if the employee is subjected by his employment

to such dangerous process, procedure, instrumentality or condition, the harm to employee will

be substantially certain; and (3) that the employer, under such circumstances, and with such

knowledge, did act to require the employee to continue to perform the dangerous task." Fvffe

v. Jeno's, Inc. (1991), 59 Ohio St.3d 115, 118.

170. As enacted, R.C. §2745.01 usurps Ohio common law by requiring that a claimant

establish that the employer "committed the tortious act with the intent to injure the [claimant] or

with the belief that the injury was substanrially certain to occur." L-t direct contradiction of

Ohio common law, R.C. §2745.01(B) defines "substantially certain" to mean that "an employer

acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or

death."

171. Plaintiffs have averred a cause of action for employer intentional tort against

Defendant Air Craft Wheels, Inc.

33

fairly, and adequately compensate Plaintiffs for their injuries, damages and costs of the instant

action;

COUNT FIVE, judgment against Defendant Parker Hannifin Corporation in an amount

in excess of Twenty-Five Thousand Dollars ($25,000.00) in compensatory damages and of an

amount in excess of Twenty-Five Thousand Dollars ($25,000.00) in punitive damages;

COUNT SIX, judgment against Defendant Airgas in an amount in excess of Twenty-

Five Thousand Dollars ($25,000.00) in compensatory damages and of an amount in excess of

Twenty-Five Thousand Dollars ($25,000.00) in punitive damages; with the imposition of costs

and expenses, including reasonably attorney fees;

COUNT SEVEN, judgment against Defendant Airgas in an amount in excess of Twenty-


Twenty-Five Thousand Dollars ($25,000.00) in punitive damages; with the imposition of costs

and expenses, including reasonably attomey fees;

COUNT EIGHT, judgment against Defendants Air Craft Wheels, LLC, Parker Hannifin

Corporation, and Airgas Safety, Inc,'jointly and severally, in an amount in excess of Twenty-


Twenty-Five Thousand Dollars ($25,000.00) in punitive damages.

COUNT NINE, to the extent that Amended House Bill 498, codified R.C. §2745.01

violates the Ohio Constitution, that it be declared unconstitutional and attorneys be awarded;

Such further relief as this Court deems necessary, just, and proper.

36

Respectfully submifted,

CHARLES V. LONGO CO., L.P.A.

C1LES'V. L1JNGO (0029490)ATTHEW D. GREENWELL (0077883)

25550 Chagrin Blvd., Suite 320Beachwood, Ohio 44122216-514-1919216-593-0914 (facsimile)[email protected]

JURY DEMAND ENDORSEMENT

A jury composed of the maximum number permitted by law is hereby demanded.

^'-C ES V. L GO (0029490) /"MATTHEW D. GREENWELL (0077883)

37

IN THE COURT OF APPEALSEIGHTH APPELLATE DISTRICT

CUYAHOGA COUNTY, OHIO

COURT OF APPEALS CASE NO. CA 11 096782Trial Court Case No. CV 10 721595

JASON MEADOWS, et al.

Plaintiffs-Appellants,

-vs-

AIR CRAFT WHEELS, LLC, et al.

Defendants-Appellees.

BRIEF OF APPELLANTS JASON MEADOWS AND LAURIE MEADOWS

Martin T. Galvin, Esq.Marc W. Groedel, Esq.Brian T. Gannon, Esq.Reminger Co., LPA1400 Midland Building101 Prospect Avenue WestCleveland, Ohio 44115Counsel for Defendant-AppelleeAir Craft Wheels, LLC

John R. Mitchell, Esq.Joshua Adam Kiarfeld, Esq.Thompson Hine LLP127 Public Square Suite 3900

Cleveland, Ohio 44114

Scoff King, Esq.Thompson Hine, LLP2000 Courthouse Plaza, N.E.10 W. Second StreetDayton, Ohio 45402Counselfor Defendant-AppelleeParker Hannifin Corp.

Charles V. Longo, Esq. (0029490)Matthew D. Greenwell, Esq. (0077883)CHARLES V. LONGO, CO., L.P.A.25550 Chagrin Boulevard, Suite 320Beachwood, Ohio 44122(216) 514-1919(216) 593-0914 (facsimile)cvlongoa,[email protected] for Plaintiffs-AppellantsJason Meadows and Laurie Meadows

TABLE OF CONTENTSPage(s)

TABLE OF AUTHORITIES ......... ............................................................................................. iii

ASSIGNMENTS OF ERROR ......................................................................................................1

STATEMENT OF THE ISSUES PRESENTED .........................................................................1

STATEMENT OF THE CASE .....................................................................................................1

STATEMENT OF FACTS ............................................................................................................3

A. Plaintiff-Appellant's Employment with ACW / Parker .....................................................3

B. The August 1, 2006 Explosion ...........................................................................................4

C. The OSHA Investigation of the August 1, 2006 Explosion ......................................:.......5

D. Industry Standards and Regulations Surrounding the Storage, Handling,Melting and Pouring Magnesium .......................................................................................5

E. Regulations and Industry Standards Surrounding Required PersonalProtective Equipment Required for Molten Metal Operations .. ........................................6

LAW AND ARGUMENT ..............................................................................................................7

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE AIR CRAFT WHEELS, LLC's

MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLANTS PRESENTED SUFFICIENT

EVIDENCE DEMONSTRATING THAT ACW COMMITTED AN EMPLOYER INTENTIONAL

TORT UNDER R.C. 2745.01(R.86) ...................................................................................................7

A. Houdek v. Thyssenkrupp Materials, N.A., Inc., 8th Dist. No. 95399,2011 Ohio 1964 ........................................................................................................10

B. Summary of Plaintiffs-Appellants' Employer Intentional Tort Claim ...... ..............11

C. ACW acknowledged magnesium is a "hazardous substance................................... 14

D. ACW acknowledged that it represented to its emplovees that theprocess with which it directed its employees to store, handle andmelt magnesium was safe ......... ...............................................................................14

E. ACW knew of the known and present dangers created by moisturerelative to the storing, handling, preheating and melting ofmagnesium ...............................................................................................................17

F. ACW deliberately misrepresented that the preheat process andpersonal protective equipment (PPE) used by its employees relativeto handling, storing, melting and pouring magnesium, a "hazardoussubstance" was safe ..................................................................................................23

i

ASSIGNMENT OF ERROR II:

THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE PARKER HANNIFIN

CORPORATION'S MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLANTS

PRESENTED SUFFICIENT EVIDENCE ESTABLISHING PARKER'S DIRECT LIABILITY AND/OR

VICARIOUS LIABILITY AS A JOINT VENTURER (R.48) ....................................................................33

A. Parker's direct negligence and active participation in the magnesiumfoundry operations after the transfer created a genuine issue ofmaterial fact ....................................................:.........................................................33

B. The Asset Purchase Agreement does not absolve Parker of liabilityand in fact creates a duty by which it can be found negligent ..................................39

C. Parker was a joint venturer with ACW and subject to joint andseverally liable of all acts flowing from the combined venture ................................43

1. Parker actively participated in the day-to-day operations ofthe foundry after the transfer ..........................................................................44

2. The Network Procurement Agreement #55 further establishedthe joint venture between Parker and ACW ..................................................44

3. Parker paid its employees annual income to remain at thefoundrYafter the 2004 transfer to ACW .................:......................................48

4. The Lease Agreement established that Parker retained legaltitle to the pronerty and retained significant control overACW's use of theproperty ............................................................................49

CONCLUSION ............................................................................................................................50

CERTIFICATE OF SERVICE ..................................................................................................51

APPENDIX ...................................................................................................................................52

ii

TABLE OF AUTHORITIESCASES Page(s)

Al Johnson Constr., Co. v. Kosydar (1975), 42 Ohio St.2d 29 .................... ................................. 43

Bennett v. Sinclair Refining Co. (1944), 144 Ohio St. 139 ............................................................43

Brown v. Packaging Corp. ofAmerica (8th Dist. 2001),2001 Ohio App. LEXIS 82 ............................................................................................................22

Cook v. Cleveland Electric Illuminating Company (8th Dist. 1995),102 Ohio App.3d 417 .....................................................................................................................22

Ford v. McCue (1955), 163 Ohio St. 498 ......................................................................................43

Forwerck v. Principle Bus. Enterprises, Inc., 6th Dist. No.WD-10-040, 2011 Ohio 489 ............................................................................................................8

Fyffe v. Jeno's, Inc. (1991), 59 Ohio St.3d 115 .....................................................................2, 7, 10

Holloway v. Area Temps, 8th Dist. No. 93842, 2010 Ohio 2106 ......... .......................................2, 8

Houdek v. Thyssenkrupp Materials, N.A., 8th Dist. No. 95399, 2011 Ohio 1694 ...............2, 10, 11

Kaminski v. Metal & Wire Products Co. (2010), 125 Ohio St.3d 205 ......................................8, 10

Kniebbe v. Wade (1954), 164 Ohio St. 294 .......... .........................................................................49

Logan v. Birmingham Steel Corp., 8th Dist. No. 80472, 2003 Ohio 5063 ....................................22

Romaniw Budas v. Polowyk (Aug. 10, 2000), 8th Dist No. 75980,2000 Ohio App. LEXIS 3613 . .......................................................................................................49

Sanfrey v. USM Corp. (Dec. 17, 1990), 12th Dist. No. CA90-02-003,1990 Ohio App. LEXIS 5607 ... .......................................................................................................9

Siiver Oil Co. v. Limbach (1989), 44 Ohio St.3d 120 ....................................................................43

Stetter v. R.J. Corman Derailment Servs. LLC (2010), 125 Ohio St.3d 280 ...................................8

Taulbee v. Adience ( 10th Dist 1997), 120 Ohio App.3d 11 ...........................................................22

iii

RULES & STATUTES Page(s)

Civ.R. 30(B)(5) ............................:.................................................................................................35

R.C. 2745.01 ......................................................................................................................1, 7, 8, 10

R.C. 2745.01(A) ...............................................................................................................:........9, 11

R.C. 2745.Q1(B) .........................................................................................................................9, 11

R.C. 2745.01(C) ...............................................................................................1, 8, 9, 11, 12, 13, 32

29 CFR 1910.132(a) ...................................................................................................................6, 40

29 CFR 1910.132(d)(1) ....................................................................................................................7

29 CFR 1910.132(f) ........................................................:..........................................................6, 40

29 CFR 1910.133(a)(1) .................................................................................................:......6, 19, 40

29 CFR 1910.1200 ...................................................................................................................41, 42

iv

ASSIGNMENTS OF ERROR

1. The trial court erred when it granted Appellee Air Craft Wheels, LLC's Motion forSummary Judgment because Appellants presented sufficient evidence demonstrating thatACW committed an employer intentional tort under R.C. 2745.01. (R.86).

II. The trial court erred when it granted Appellee Parker Hannifin Corporation's Motion forSummary Judgment because Plaintiffs presented sufficient evidence establishing Parker'sdirect liability and/or vicarious liability as a joint venturer. (R.48).

STATEMENT OF ISSUES PRESENTED

1. Whether the trial court erred when it held that Appellants did not present sufficientevidence, when construed in their favor, to create a genuine issue of material fact as towhether Appellee Air Craft Wheels, LLC committed an employer intentional tort.

II. Whether the trial court en-ed when it held that Appellants did not present sufficientevidence, when construed in their favor, of a deliberate misrepresentation of a hazardoussubstance by Appellee Air Craft Wheels, LLC creating a presumption of intent to injureunder R.C. 2745. 01(C) .

III. Whether the trial court erred when it held that Appellants did not present sufficientevidence, when construed in their favor, demonstrating a genuine issue of material factsurrounding Appellee Parker Hannifin's direct liability for its active participation in thefoundry subsequent to the transfer to Appellee Air Craft Wheels, LLC.

IV. Whether the trial court erred when it held that Appellants did not present sufficientevidence, when construed in their favor, demonstrating a genuine issue of material factthat Appellee Parker Hannifin and Appellee Air Craft Wheels, LLC created a joint venturewhereby each venturer is vicariously liable for the acts and omissions of the other.

STATEMENT OF THE CASE

This instant appeal arises out of a magnesium explosion that occurred on August 1, 2006

at a magnesium foundry operated by Defendant-Appellee Air Craft Wheels, LLC ("ACW"). The

explosion expelled molten magnesium from the furnace covering Plaintiff-Appellant Jason

Meadows' ("Plaintiff' or "Jason") body and face resulting in severe second and third degree

bums, including bums to his comeas, leaving Plaintiff partially blind and permanently disabled.

The cause of the explosion was due to moisture on a magnesium ingot at the rime Jason placed it

into the molten metal.

On June 18, 2010, Defendant-Appellee Parker Hannifin Corporation ("Parker") filed its

Motion for Summary Judgment alleging^ that it could not be liable because it was not engaged in

a joint venture with ACW. (R.20). In support, Parker relied almost exclusively Request for

Admissions that were answered eleven days late. The trial court subsequently allowed Plaintiffs

to withdraw and amend their answers leaving a majority of Parker's factual allegations

unsupported and disputed. (R.30). Nowhere in its motion did Parker address its active

participation in the foundry subsequent to the transfer to ACW, including but not limited to its

training of ACW employees, performing extensive maintenance at the foundry, and recklessly

accepting shipments of raw materials on behalf of ACW. (R.20). On October 13, 2010, the trial

court granted Parker's Motion for Summary Judgment without opinion. (R.48).

On January 28, 2011, Appellee ACW filed its Motion for Summary alleging that

Plaintiffs could not establish the requisite intent for an employer intentional tort under R.C.

2745.01. (R.61). ACW based its entire motion below upon the common law standard for

determining "intent" for an employer intentional tort as announced in Fyffe v. Jeno's, Inc.

(1991), 59 Ohio St.3d 115. However, when the Ohio Supreme Court upheld the constitutionality

of R.C. 2745.01 it effectively ruled that the common law Fyffe standard is no longer applicable

to torts accruing after April 7, 2005. See Holloway v. Area Temps, 8th Dist. No. 93842, 2010

Ohio 2106. On March 14, 2011, Plaintiffs filed an Opposition to ACW's motion and

subsequently filed a Notice of Supplemental Authority referencing this Honorable Court's recent

decision of Houdek v. Thyssenkrupp Materials, N.A., 8th Dist. No. 95399, 2011 Ohio 1694. (R.

74, 85). Without reference to Houdek, the trial court granted ACW's Motion for Summary

Judgment on April 13, 2011. (R.86).'

1 Plaintiffs settled their claims against Defendant Airgas Great-Lakes. (R. 79, 81).

2

STATEMENT OF FACTS

A. Plaintiff-Appellant's Employment History with ACW / Parker

Plaintiff Jason Meadows was originally hired by the Parker in the fall of 1998 to work at

its Aircraft Wheel & Brake Division which is an aluminum and magnesium foundry. Jason

continued to work at Parker until August of 2002. Throughout his employment, Jason worked

numerous jobs, including the saw room, shake-out and molding, and melting and pouring molten

magnesium. (R.22- Meadows Dep. 33). Jason was trained how to melt and pour magnesium by

Robert Hardman and Dennis Ore. (Id. at 52, 93, 133; R.37- Hardman Dep. 28-29).

In 1998 up through the transfer of the foundry to ACW, Parker required its employees to

wear safety glasses, aprons, sleeves, gloves and spats to cover their shoes. (R.22- Meadows Dep.

42; R.37- Hardman Dep. 30, 34, 84). At no time up and through the transfer did Parker require

its fumace operators to wear full face shields. (Id.; see also Krupp Dep. 72; R.46, 77- Albright

Affidavits). Parker did not have any process or procedure in place to preheat the magnesium

ingots prior to the ingots being immersed in the molten metal. (R. 22- Meadows Dep. 89; R.65-

Krupp Dep. 17-18, 20-21, 25-26). In 2002, Jason resigned his employment with Parker.

In early 2004, Parker transferred the foundry which was part of its Aircraft Wheel &

Brake Division to ACW. (R.68- McCoy Dep. 9). Around that time Parker and ACW entered

into a Network Procurement Agreement whereby they agreed to combine their property, skill,

knowledge and agreed to share the resulting profits ana cost savings in fur[herance of the joint

undertaking. (R.33- Ex. 4). Parker was actively involved in the day-to-day operation of the

foundry after it was transferred to ACW. Parker employees continued to train ACW employees

on melting, pouring and sawing magnesium parts; Parker performed maintenance at the foundry

on a daily basis; and Parker accepted shipments of raw metals, including magnesium ingots, on

3

behalf of ACW that are delivered by suppliers. (R.37- Hardman Dep. 13-14, 44-45, 51-54, 61-

62, 66-69, 74-75, 104; R.35- Richards Dep. 70-71, 74-75; R.33- Ex. 12; R.41-Bauer 23-33).

After delivery, the magnesium ingots are placed in a parking lot by Parker exposed to the

weather (rain, snow, sleet) until the ingots are retrieved by ACW. (Id.).

In June 2004, Jason returned to work at ACW following Parker's transfer of the foundry

to ACW. He resumed working primarily as a furnace operator. (R.22- Meadows Dep. 107-109,

116-117). In November 2004, Jason, a United States Marine Reservist, was called to full time

active duty and deployed to Iraq the following year. For most of 2005, Jason served in Iraq

escaping injury. In January 2006, Jason returned to his employment with ACW at the

magnesium foundry. At that point, Jason was working as a "floater" which required him to

perform a number of different job functions at the ACW foundry. (Id. at 116-117).

B. The August 1, 2006 explosion

On the morning of August 1, 2006, Jason was informed by management at ACW that he

would be required to work as furnace operator. (Id. at 126). Jason and co-worker Robert Vencill

had just finished their first melt and pour of the morning and were preparing to refill the furnace

(melting pot) with magnesium ingots. (Id. at 131-32). Jason placed two ingots into the furnace

which was part of his general and required job duties, when suddenly an explosion occurred that

threw molten magnesium onto Jason's body and face causing severe second and third degree

_ aburns, including h_nrns to his ::orneag leaving Jas-n partially blind ard iGtaiiy dis3bied. (id.)

We -- I said we just got done pouring off a line, and we started to recharge the furnace. Ican't remember if I set the first set of two ingots in or Robert had done it. I can'tremember if there was ingots in there already or not. Basically just like nonnal, went inthere, set it on the furnaces, and let it slowly, you know, keeping control of the ingot,slide into the furnace. And I just remembering looking to see where Robert was at so Iknew which way to spin and turn to get out of his way, because the ingots are 30, 40pounds a piece, and didn't want to run into him. And just as I remember turning, that'swhen I felt the blast. And I pushed away from the fumace as far as I could, you know,

4

thinking where it would be safe. And threw my safety glasses off, and then I just startedripping everything off.. . .

(Id.). It is undisputed that the cause of the explosion was due to moisture on a magnesium ingot

at the time Jason placed it into the molten metal. (R.77- Albright Affidavit; R.68- McCoy Dep.

63-66, 69; R.67- Sparrow Dep. 59).

C. The OSHA investigation of the August 1, 2006 explosion

OSHA conducted an inspection and investigation into the explosion. ACW was cited and

fined for countless serious safety violations, including, but not limited to, its failure to provide

and require its employees to utilize mandated safety equipment such as leggings, spats,

protective eyewear, face shields and/or fire retardant clothing and its failure to maintain a written

Health and Safety. (R.75- Exs. 30, 33). The OSHA investigation also revealed that ACW did

not have any written safety policies and failed to complete personal protective equipment (PPE)

assessment required by 29 CFR 1910.132(d). (Id.).

D. Industry Standards and Regulations Surrounding the Storage, Handling, Meltingand Pouring Magnesium.

Magnesium is a hazardous and combustible metal that can be processed without incident

by following well developed safety practices. (R.46, 77- Albright Affidavits). Molten

magnesium will burn if unprotected from air and will react with water to produce both steam and

hydrogen which, in turn, will certainly result in explosions and fires. (Id.). Molten magnesium

is explosive if it contacts moisture. (Id.). The International Magnesium Association ("IMA")

warns that "[i]f water comes into contact with any molten magnesium, whether it is in the

foundry farnace or a puddle in a burning building, there could be an explosion. (R.75- Ex. 29).

This fact has been confirmed by both McCoy and Sparrow. (R.68- McCoy Dep. 28, 36-27, 46-

47, 71-72; R.67- Sparrow Dep. 59, 63).

5

Because of its explosive nature, all magnesium ingot and scrap must be preheated to a

minimum temperature of 300° F(150° C) prior to being placed in the fumace / melting pot to

eliminate moisture that may be present as a result of storage and handling. (R.46, 77- Albright

Affidavits). Industry standards, including those established by the IMA, MSDS, EPA, OSHA,

and primary producers, state that magnesium ingots must be preheated to a minimum

temperature throughout of 150° C(300° F) to remove moisture on the ingot surfaces as well as

any moisture trapped in surface defects prior to immersing the ingots into molten magnesium.

(Id.). If moisture is present on the ingot that is placed in molten magnesium metal an explosion

will certainly occur. (Id.; R.68- McCoy Dep. 28, 32, 36-37, 46-47, 67-68; R.67- Sparrow Dep.

59, 63). Failure to properly preheat the ingot will lead to violent explosions if water contacts

molten magnesium. (Id.).

E. Regulations and Industry Standards Surrounding Required Personal ProtectiveEquipment Required for Molten Metal Operations.

OSHA regulations mandate that employers require the use of appropriate eye and face

protection when working with hazardous substances such as molten metal. 29 CFR 1910.132(a)

provides that

Protective equipment, including personal protective equipment for eyes, face, head, andextremities, protective clothing, respiratory devices, and protective shields and barriers,shall be provided, used, and maintained in a sanitary and reliable condition wherever it isnecessary by reason of hazards of processes or environment, chemical hazards,radiological hazards, or mechanical irritants encountered in a manner capable of causinginjury or impairment in the function of any part of the body through absorption,inhalation or physical contact.

OSHA mandates that each employer train its employee "[w]hen PPE is necessary ... [and w]hat

PPE is necessary" and requires the employer to retrain its employees when there are "changes in

the workplace" or "changes in the types of PPE to be used render[ing] previous training

obsolete." 29 CFR 1910.132(f). 29 CFR 1910.133(a)(1) further requires that "[tJhe employer

6

shall ensure that each affected employee uses appropriate eye or face protection when exposed

to eye or face hazards from flying particles, molten metal, liquid chemicals, acids or caustic

liquids, chemical gases or vapors, or potentially injurious light radiation. In addition, 29 CFR

1910.132(d)(1) requires an employer to conduct a "personal protective equipment" ("PPE")

assessment designed to identify hazards and to implement the appropriate PPE for those

hazards.2

Similarly, magnesium industry regulations and standards, including NFPA 480 and IMA

Safe Handling of Magnesium, mandate foundry operators to utilize the following personal safety

equipment when melting and pouring molten magnesium: face/head protection (hard hat, full

face shield, safety glasses), fire-retardant clothing (gloves, jackets/aprons (coupled with arm

protection, etc.) and foot protection (safety shoes, spats). (R.46, 77- Albright Affidavits). ACW

acknowledged that face shields are required to be used so as to avoid face and/or eye injury.

LAW AND ARGUMENT

ASSIGNMENT OF ERROR I:

TIRE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-APPELLEE AIR CRAFT WHEELS,

LLC's MOTION FOR SUMMARY J'UDGMENT BECAUSE P LAINTIFFS-APPELLANTS PRESENTED

SUFFICIENT EVIDENCE DEMONSTRATING THAT ACW COMMITTED AN EMPLOYER INTENTIONAL

TORT UNDER R.C. 2745.01.

Appellee ACW based its entire motion below upon the common law standard for

determining "intent" for an employer intentional tort as announced in Fyffe v. Jeno's, Inc.

(1991), 59 Ohio St.3d 115. (R.61). However, when the Ohio Supreme Court upheld the

2 29 CFR 1910.132(d)(1) states:The employer shall assess the workplace to determine if hazards are present, or are likely to bepresent, which necessitate the use of personal protective equipment (PPE). If such hazards arepresent, or likely to be present, the employer shall:

(i) Select, and have each affected employee use, the types of PPE that will protect the.affected employee from the hazards identified in the hazard assessment;

(ii) Communicate selection decisions to each affected employee; and,(iii) Select PPE that properly fits each affected employee.

7

constitutionality of R.C. 2745.01 in Kaminski v. Metal & Wire Products Co. (2010), 125 Ohio

St.3d 205 and Stetter v. R.J. Corman Derailment Servs. LLC (2010), 125 Ohio St.3d 280, it

effectively confirmed that the common law Fyffe standard is no longer applicable to torts

accruing after April 7, 2005. Any analysis utilizing the Fyffe standard is therefore improper and

inapposite. See Holloway v. Area Temps, 8th Dist. No. 93842, 2010 Ohio 2106.

The Ohio legislature enacted R.C. 2745.01 which allows an employee to maintain an

action against his or her employer "for damages resulting from an intentional tort committed by

the employer during the course of employment" Specifically, R.C. 2745.01 provides:

(A) In an action brought against an employer by an employee, or by the dependentsurvivors of a deceased employee, for damages resulting from an intentional tortcommitted by the employer during the course of employment, the employer shallnot be liable unless the plaintiff proves that the employer committed the tortiousact with the intent to injure another or with the belief that the injury wassubstantially certain to occur.

(B) As used in this section, "substantially certain" means that an employer acts withdeliberate intent to cause an employee to suffer an injury, a disease, a condition,or death.

(C) Deliberate removal by an employer of an equipment safety guard or deliberate

misrepresentation of a toxic or hazardous substance creates a rebuttable

pres2impiton that the rellloval or niisrepresentation was committed with intent to

injure another if an injury or an occupational disease or condition occurs as a

direct result.

R.C. 2745.01 does not define "deliberate" as it pertains to the level of intent necessary to

establish an employer intentional tort. Merriam-Webster defines "deliberate" as "characterized

by or resulting from careful and thorough consideration" or "characterized by awareness of the

consequences."3 See Forwerck v. Principle Bus. Enterprises, Inc., 6th Dist. No. WD-10-040,

2011 Ohio 489, ¶21. ACW, through its management, knew of the dangers associated with

3 Merriam-Webster, available at httn://www.merriam-webster.com/dictionary/deliberate (June 17, 2011).

8

moisture being introduced into the melting process and were aware of the certain consequence of

an explosion. When an employer is armed with knowledge of a danger associated with a

"hazardous substance" and the precautions required to safely handle that material, the employer

has a choice to train, warn and educate, or not train, warn and educate its employees. Either

way, the decision results from "careful and thorough consideration" with the "awareness of the

consequences," and with deliberation.

"Deliberate intent" is "presum[ed]" under R.C. 2745.01(C) when the employer provides

"misrepresentation[s] ofa toxic or hazardous substance" to its employees or when it removes an

"equipment safety guard." (emphasis added). A natural reading of R.C. 2745.01(C) requires a

plaintiff to present evidence demonstrating a "deliberate misrepresentation of a... hazardous

substance" in order to create a rebuttal presumption that the employer acted with the requisite

intent to injure. Contrary to the trial court's interpretation of the phrase, R.C. 2745.01(C) does

not require proof that the employer's deliberate misrepresentations were done with the intent to

injure or "deceive" in order for the presumption to arise. (R.86 citing Sanfrey v. USM Corp.

(Dec. 17, 1990), 12th Dist. No. CA90-02-003, 1990 Ohio App. LEXIS 5607). The obvious

purpose of division (C) is to presume the injurious intent required under divisions (A) and (B)

when the employer provides misrepresentations of a toxic or hazardous substance. It would be

quite anomalous to interpret R.C. 2745.01(C) to require proof that the employer acted with the

intent to injure in order create a presumption that the employer acted with the intent to injure.

Such an interpretation would render division (C) a nullity. Moreover, the trial court's

interpretation improperly read into the statute an additional requirement that is not present in the

plain language of division (C).

9

A. Houdek v. TRyssenkrupp Materials, N.A., Inc., 8th Dist. No. 95399, 2011 Ohio 1964.

The employer intentional tort statute does not abolish the common-law cause of action;

the statute merely constrains it. Houdek, 2011 Ohio 1694. This Court recently reviewed a grant

of summary judgment in favor of the defendant-employer under R.C. 2745.01. In Houdek, the

plaintiff and a co-worker were acting in accordance with a series of directives that resulted in the

plaintiff s catastrophic injuries. The employer directed the plaintiff to tag inventory using a

scissors-lift in Aisle A of the employer's warehouse. Id. at ¶18. The plaintiff had just returned

from a previous injury and was on "light duty restriction." Id. The employer ordered another

employee to retrieve materials using a Raymond operated at maximum speed. Id. at ¶20. The

Raymond is a forklift which faces the merchandise racks, rather than its direction of travel. Id. at

¶19. The Raymond operator, in accordance with the employer's directives, entered Aisle A and

crushed the plaintiff against the rack causing serve and debilitating injuries. Id. at ¶22.

In reversing the trial court's grant of summary judgment, this Court stated that "if the

facts and circumstances of this case do not present genuine issues of material fact as to the

existence of an employer intentional tort, then none shall." Id. at ¶38. In analyzing the facts in

Kaminski, this court observed that "[t]here was a stark absence of employer directives to Rose

Kaminski" and that "she could not prove any of the elements" under Fyffe. Id. at ¶29. In

distinguishing Kaminski,4 this Court determined that the employer's direct orders to its

emmpln^ Pac inrlnAina thP nlaintiff nlarrA thr n1aintiff in harm'g iTra< <}nth nn ^r,h^nn,a t^n, ay^i.l thet....^......, .^.».....b ..... Y.........., r.»...... ..... t..«....... ... ..w... ^

incident and injury. It was the defendant-employer's specific directives to the employees which

satisfied the requisite intent to survive summary judgment under R.C. 2745.01.

ACWs' "specific directives" and deliberate and reasoned choice not to inform, educate

and/or warn its employees, including Jason Meadows, of the extreme dangers associated with the

° 125 Ohio St.3d 205

10

hazardous substance, magnesium are even more compelling then those in Houdek. Here, ACW

knew of the dangers associated with moisture, knew what personal protective equipment was

required by law, knew of the dangers of improperly storing the magnesium ingots, yet

specifically directed its employees, including Jason, to melt and pour magnesium without

preheating the ingots and scrap to remove moisture and without requiring its employees to utilize

necessary protective equipment. As discussed below, there is also no question that ACW's

directives and deliberate misrepresentation satisfies the requisite intent under R.C. 2745.01(A),

(B), and/or (C) when analyzed under Houdek.

Furthennore, Houdek also clarified the term "belief' as it relates to R.C. 2745.01(A).

Houdek rejected the defendant employer's argument that "belief ' must be viewed "subjectively,"

and instead held that relevant test is "what would a reasonable prudent employer believe" based

upon the facts and circumstances of the case. Houdek, 2011 Ohio 1694, ¶45. Throughout

ACWs' Motion for Summary Judgment, similar to the employer in Houdek, ACW argued that it

did not have the subjective belief or intent to injure Meadows. However, Houdek now makes

clear that an employer's subjective belief is not relevant as "such an interpretation would place a

premium on willful ignorance or deceit." Id.

B. Summary of Appellants' Employer Intentional Tort Claim.

The trial court below erred when it granted Appellee ACW's Motion for Summary

Judgment because reasonable minds could conclude that ACW made deliberate

misrepresentations as to a hazardous substance, magnesium, creating a presumption that ACW's

acts were done with the intent to injure pursuant to R.C. 2745.01(C). When construing the

evidence in favor of Appellants, it is clear that there are multiple genuine issues of material fact

that must be decided by the trier of fact; therefore, summary judgment was improper.

11

ACW admitted that it made deliberate representations to its employees that its specific

directives for storing, handling, melting and pouring magnesium, a hazardous substance, were

safe. (R.68- McCoy Dep. 19, 22-23; R.67- Sparrow Dep. 33-34, 35-36, 50). The manner in

which ACW stored, handled, and melted the magnesium ingots was extremely dangerous as an

explosion similar to the one that injured Jason was inevitable. ACW's deliberate representations

were therefore false and constituted deliberate misrepresentations actionable under to R.C.

2745.01(C).

Magnesium is a "hazardous substance." (R.68- McCoy Dep. 26-29; R.67- Sparrow Dep.

23-24, 63-64). ACW's management (Sparrow) and owner (McCoy)5 were trained and

knowledgeable regarding the storage, handling and melting magnesium. (R.68- McCoy Dep. 6,

12-14, 18-19; R.67- Sparrow Dep. 7-10, 16). ACW admitted that it represented to its employees,

including Jason Meadows, that the manner with which it required its employees to store, handle

and melt magnesium was safe when in fact it was not safe. (R.67-Sparrow Dep. 33-34, 35-36,

50; R.68- McCoy Dep. 19, 22-23; R.39- Vencill Dep. 62; R.65- Krupp Dep. 48).

ACW consciously and deliberately directed it employees not to utilize the necessary

preheat process to eliminate the known explosion danger in the melting of magnesium, a

hazardous substance:

• ACW admits that magnesium is a "hazardous substance." (R.68- McCoy Dep. 26-29;R.67- Sparrow Dep. 23-24, 63-64).

ACW's management (Sparrow) and owner (McCoy) knew of the known and presentcatastrophic event (explosions) created by the presence of moisture in the storing,handling, preheating and melting of magnesium. (R.68- McCoy Dep. 28, 36-27, 46-47,71-72; R.67- Sparrow Dep. 59, 63).

Prior to the August 2006 explosion, there were countless prior similar incidents wheremolten magnesium was expelled from the furnace due to moisture. Some of these prior

5 ACW is a Limited Liability Company with two members: Dale McCoy and his wife. For the purposesof this instant Brief, Plaintiffs will refer to the ownership in the singular as Dale McCoy.

12

incidents resulted in injuries to employees. (R.67- Sparrow Dep. 64; R.22- MeadowsDep. 173, 200-201; R.65- Krupp Dep. 31-32, 36-37; R.39- Vencill Dep. 26, 30, 56-58;R.75- Exs. 22-A, 22-B, 22-C, 22-D, 22-E, 22-F, 22-G, 30).

ACW's management (Sparrow) and owner (McCoy) knew that the magnesium ingotsmust be preheated to remove all moisture to a minimum temperature of 300° F prior tothe ingots being placed in an open melting furnace. (R.77- Albright Affidavit; R.68-McCoy Dep. 36, 41; R.67- Sparrow Dep. 32-33).

ACW's melting procedures lacked any method to determine when the magnesium ingotsreached the minimum preheat temperature of 300° F and ACW's employees had no wayto determine when that temperature was reached. (R.77- Albright Affidavit; R.68-McCoy Dep. 38, 42; R.67- Sparrow Dep. 33, 59; R.65- Krupp Dep. 51-53; R.39- VencillDep. 42-43).

ACW stored its magnesium ingots in a high moisture area that contained an air"scrubber" which would routinely cause water to puddle on the storage room floor, and attimes accumulated on the magnesium ingots. (R.67- Sparrow Dep. 29-31; R.39- VencillDep. 51-56; R.75- Ex. 13).

None of ACW's furnace operators in 2006 (Meadows, Krupp, Vencill) were aware of theextreme dangers associated with moisture being introduced in the melting process or theabsolute need to preheat the magnesium to a temperature of 300° F. (R.65- Krupp Dep.20, 26, 27-28, 38-39; R.22- Meadows Dep. 89, 90, 199; R.39- Vencill Dep. 36-38, 44).

At the time of the 2006 explosion, Krupp and Jason (both unqualified) were responsiblefor determining the methods to melt and pour magnesium, including whether (or not) to"preheat" the magnesium ingots. (R.67- Sparrow Dep. 49; R.41- Bauer Dep. 35; R.65-Krapp Dep. 53-54).

Furthermore, ACW deliberately failed to instruct and warn its employees on the proper

and required use of personal protective equipment ("PPE") relative to the "hazardous substance":

ACW consciously and deliberately misrepresented to its employees that not using PPE in

the melting of magnesium was safe. (R.67- Sparrow Dep. 20-22; R.22- Meadows Dep.59-60, 153-154, 113_71d; R,65_ KnUnn T^en 'LR_3(1 dYl-dY'z, Yd• U ZO- 17e..,.:17 7,0... 771

j+(+ 1+• , , , 1\. 3 / YV31V111 LI.rJ. L.L.).

ACW did not maintain any written policies relative to the appropriate personal protectiveequipment it required its employees to use when melting and pouring magnesium inviolation of OSHA Regulations. (R.75- Exs. 30, 33; R.39- Vencill Dep. 13-14).

ACW deliberately failed to provide Jason Meadows a full face shield which wererequired to be used when melting and pouring the subject hazardous substance. (R.22-Meadows Dep. 59-60, 113-114).

13

Considering all of these facts and applying the law, reasonable minds may conclude that

ACW deliberately misrepresented to its employees that its procedures for handling, storing and

melting magnesium (a hazardous substance) was safe, when in fact, its procedures were not. As

set forth below, R.C. 2745.01(C) contemplates employer liability for circumstances as the

present when an employer misrepresents a hazardous substance. The existence of the

misrepresentation creates a rebuttable presumption that the misrepresentation was committed

with intent to injure. Accordingly, the trial court below erred when it granted Appellee ACW's

Motion for Summary Judgment.

C. ACW acknowledged magnesium is a "hazardous substance."

ACW did not dispute that magnesium is a "hazardous substance." ACW's owner (Dale

McCoy) and its foundry and safety manager (Michael Sparrow) have worked in the magnesium

industry for over 30 years and are experienced with the hazards associated with the operations of

a magnesium casting foundry. (R.68- McCoy Dep. 6, 15; R.67- Sparrow Dep. 11-12, 14).

McCoy confirmed that "magnesium is a hazardous substance" as it reacts with air, sand, and

most importantly "water." (R.68- McCoy Dep. 26-29). McCoy further testified that "if

[magnesium is in] a liquid state, moisture is a problem that you always have to pay attention to."

(Id. at 27). Similarly, Sparrow testified that magnesium in a liquid form as it is melted is

considered a "hazardous substance." (R.67- Sparrow Dep. 23-24, 63-64).

n ACW a.^.lu':.^.::.le^lnnrl 4.Hat it "e ^.sente•^ ♦ •♦ , cca ^l. ^ .i... • i..s.... pr u w IIw cmpiivy auai wc pitii.e3s Wiui

which it directed its employees to store, handle and melt magnesium was safe.

ACW admitted that it made deliberate "representations" to its employees that its

procedures for storing, handling, melting and pouring magnesium, a hazardous substance, was

"safe." Sparrow, ACW's foundry and safety manager, confirmed these admissions:

14

Q. And you'd agree with me, would you not, that Aircraft Wheels made

representations to its employees, including Jason, that the manner with which the

magnesium was being pre-heated at the Aircraft Wheels' facility was safe,correct?

A. Yes.

And you'd agree with me, would you not, that Aircraft Wheels represented to itsemployees, including Jason, that utilizing the training provided by Aircraft

Wheels would allow them to safely melt magnesium as well, correct?

A. Yes.

(R.67- Sparrow Dep. 50) ( emphasis added). McCoy testified that as an employer, ACW had an

obligation to educate and warn of the hazards involved with the handling and melting of

magnesium.

Now, as an employer you would agree that Air Craft Wheels has an obligation toeducate its employees who are on the melting floor relative to the hazardsinvolved with melting magnesium, correct?

A. Yes.

Q. And you'd also agree with me that Air Craft Wheels would have an obligation toexplain to its employees on the melting floor the hazards involved with allowingmoisture into the furnace when melting magnesium as well, correct?

A. Yes.

(R.67- McCoy Dep. 19).

Q. Now, you would agree with me, would you not, as an employer, Air Craft Wheelshas an obligation to educate its employees relative to the hazards involved in notproperly preheating magnesium, correct?

A. Or aluminum.

Q. So you would agree with that statement as it pertains to magnesium as well?

A. Yes.

(Id. at 22-23). ACW has an obligation to its employees to educate and actively explain the

dangers associated with the melting and pouring of magnesium, a hazardous substance.

15

And you'd agree with me, would you not, that Aircraft Wheels has -- and hadback in August of 2006, and before that time -- an obligation to warn and instructits employees on the dangers associated with moisture in the melting ofmagnesium, correct?

A. Yes. And we did.

(R.67- Sparrow Dep. 33-34).

Sparrow testified that an employer who intentionally fails to instruct its employees on the

dangers associated with moisture being present on a magnesium ingot at the time it is placed in a

furnace would be exposing.its employees to serious injuries.

Q. Now, you'd agree with me, would you not, that a foundry employer whointentionally fails to instruct its employees on the dangers associated withmoisture being present on a magnesium ingot, at the time it's placed in a furnace,would be exposing its employees to serious injury, correct?

A. I agree to that, but that's not the case.

Q. I'm not asking you that.

A. Yes.

Q. But as a general principle, you'd agree with that, correct?

*

A. Yes.

(Id. at 33-34). ACW admitted that if an employer advised its employees that it was safe to melt

magnesium without eliminating aIl moisture from the ingot, that statement would be false.

Q. Now, if a foundry employer advised its employees that it was safe to meltmagnesium without first eliminating all moisture from the ingot, a magnesiumingot, you'd agree with me that that advice would be false, correct?

A. I think I understand the question.

16

You'd agree ivith that statement?

A. Yes.

(Id. at 35-36) (emphasis added). The testimony provided by ACW's employees further verifies

that ACW made representations that the manner in which they were required to melt and pour

magnesium was safe.

Q• Rob, would it be fair to say that the representations that were made to you by yoursupervisors at Air Craft Wheels allowed you to believe that that how you werehandling the magnesium ingots was safe?

A. Yes.

(R.39- Vencill Dep. 62).

Q• Now, during the time you have been employed by Air Craft Wheels, would it be afair statement that you understood that the manner in which magnesium was beingpreheated was safe?

A. Yes.

(R.65- Krupp Dep. 48).

ACW deliberately misrepresented to its employees, including Jason, that the manner in

which ACW required its employees to handle, melt and pour magnesium, a hazardous substance,

was safe with knowledge that the process was extremely dangerous.

E. ACW knew of the known and present dangers created by moisture relative to thestoring, handling, preheating and melting of magnesium.

ACW did not dispute that its management knew of the dangers created by moisture when

introduced to the storing, handling, preheating and melting of magnesium. ACW's principal

McCoy explained the hazards of magnesium as it relates to moisture:

Q• What are the dangers that exist, if there are any, relative to moisture?

A. Any metal in a liquid state would react with moisture if it's introduced to,molten metal bath by evaporating very quickly. For example, if you aredipping it out to pour and the sweat drips off your forehead into the pot, you

17

can see a nice little spot where it pops. No matter what the metal is, thathappens.

Q• Are there any inherent --

A. Additional moisture would make a bigger pop. Never have moistureassociated with your liquid metal, no matter what the metal is.

Q. So with respect to magnesium, one of the hazards involved with magnesium in amolten state would involve the introduction of moisture causing an explosion or apop, correct?

A. Yes, as with any liquid metal. It's the same hazard. You can never ignore itwith any liquid metal.

(R.68- McCoy Dep. 28). McCoy confirmed that "[y]ou can't put anything with moisture into a

pot" because "you will get a reaction" meaning "[a]n expansion of the water molecules,

frequently described as an explosion." (Id. at 36-37). He further testified that "[i]n a liquid state,

you don't introduce moisture to a metal, it doesn't matter what kind of metal. It will evaporate

very quickly and you would call it an explosion." (Id. at 46-47). Finally, McCoy confirmed that

the addition of water to molten magnesium can cause the H20 to break down releasing hydrogen

gas which can be ignited causing a large explosion. (Id. at 71-72). Sparrow, ACW's foundry

and safety manager was also aware of the dangers created by moisture relative to the storing,

handling, preheating and melting of magnesium. (R.67- Sparrow Dep. 59, 63).

Similarly, ACW's management and ownership were well aware that the reason that

industry standards and literature require the preheating of magnesium ingots prior to inserting

into molten magnesium is to remove any moisture to prevent explosions:

Q. Now, speaking of the preheating process, you would agree with me, would younot, that the purpose of preheating magnesium ingots is to eliminate moisture,which in turn will guard against any explosion from occurring during the chargingprocess, correct?

A. WiIl help guard against and will only help to ensure that there is no moisture.If the ingot is already dry, the preheating is just being doubly safe.

18

Right. But the reason is to ensure that --

A. There is no moisture.

(R.68- McCoy Dep. 41). In further explaining the requirement of preheating the magnesium

ingots, McCoy testified that "moisture evaporates at 212 degrees Fahrenheit" but "you should

have it hotter than that to make sure that [the water] evaporates faster" and confirmed that the

ingots should be preheated to around 300°F. (Id. at 36). This preheat temperature coincidentally

is the same minimum temperature required throughout the magnesium industry.

Sparrow likewise admitted that "in the process of pre-heating, if there were any moisture

on it, that would be driven off' and that the preheating is "part of the process to ensure that the

ingot is dry." (R.67- Sparrow Dep. 32-33). Sparrow also confirmed that the'MSDS for

magnesium state that the ingots "should be raised to a temperature of approximately 300 degrees

Farenheit (sic)." (Id. at 33; see also R.75- Ex. 9).

ACW's management and ownership also knew that OSHA Regulations and industry

standards require that all furnace operators utilize the following personal safety equipment when

melting and pouring molten magnesium: face/head/eye protection (hard hat, full face shield,

safety glasses), fire-retardant clothing (gloves, jackets/aprons, coupled with ann protection, etc.)

and foot protection (safety shoes, spats). (R.77- Albright Affidavit). OSHA Regulation, 29 CFR

1910.133(a)(1) states that ACW "shall ensure that each affected employee uses appropriate eye

or face protection when exposed to eye or face hazards from flying particles, molten metal[.]"

(emphasis added). The requirement that a helmet with full face shield coupled with safety

glasses be worn by the furnace operators is to protect the employee's head, face and eyes from

coming into direct contact with molten magnesium. Sparrow testified that "allowing an

19

employee to melt and pour magnesium without a full face shield would not be a safe way to

perform that job." (R.67- Sparrow Dep. 63).

Armed with this knowledge, McCoy testified that as soon as he assumed operations of

the foundry, he had helmets with face shields sent to ACW from his Ravenna Ohio magnesium

foundry. (R.68- McCoy Dep. 21-22). However, ACW did not give its employees their own

helmet with face shield, nor did ACW complete an OSHA required PPE assessment or maintain

written documentation demonstrating what PPE was appropriate for the various jobs at ACW,

including the furnace operators. The evidence also reveals that ACW's furnace operators rarely

wore helmets with face shields in 2006 even though Sparrow was out in the foundry on a daily

basis and McCoy was there at least twice a week. Sparrow testified that ACW's furnace

operators, "for the most part" wore the proper personal protective equipment. (R.67- Sparrow

Dep. 22-23). Indeed, OSHA cited ACW with serious violations for not "requiring" its

employees to wear the appropriate PPE while processing molten metal, including a helmet with

full face shield. (R.75- Exs. 30, 33). Clearly, ACW was aware what personal protective

equipment was required to be worn by its furnace operators as mandated by OSHA.

ACW's knowledge of the extreme explosion hazard associated with charging magnesium

ingots that contain moisture is further demonstrated by the countless prior instances where

molten metal was expelled from the pot injuring its employees. While the foundry was operated

hy P^rl^er, in ^Fll:ich Cp.ri-^n,^N waS hP.ad Of .^..^..^.d.°,Strllet: 3e t.°.St'ng a8 w'eii as vundiy' Supei'JiSvr iii

charge of safety and Leon Krupp was a furnace operator, there were a number of documented

injuries where moisture caused the molten magnesium to "pop" expelling molten metal from the

pot resulting in injuries to its employees. (R.75- Exs. 22-A, 22-B, 22-C, 22-D, 22-E, 22-F, 22-

G). Disingenuously, McCoy stated that "any injury, besides being no fun, should be viewed as

20

an opportunity to help make yourself better for the future" -- a philosophy that ACW obviously

did not abide. (R.68- McCoy Dep. 30).

The testimony further established that molten metal explosions were common practice at

the foundry. Sparrow, as the foundry and safety manager, testified that based upon his

"independent recollection" he was aware of employees being injured while charging magnesium.

(R.67- Sparrow Dep. 64). Indeed, of the three farnace operators in 2006, Jason, Krupp, and

Vencill, Sparrow recalls each of them being injured from magnesium being ejected from the pot.

(Id.). The OSHA investigator who interviewed the employees at ACW after the explosion that

injured Jason revealed that one of ACW's employees stated that he "has seen metal blow up to

50 feet from the furnace in the past" and the OSHA investigator observed metal "on top of the

ventilation system going to the furnaces." (R.75- Ex. 30) (emphasis added). During the OSHA

investigation, ACW's representative in charge of providing information and rectifying the

serious violations was Michael Sparrow. (Id.).

All of the furnace operators who testified confirmed that explosions routinely happened

where molten magnesium would be eiected from the pot. Jason Meadows testified that he had

"seen an explosion like the explosion that happened to [him]," stated that "it happens every once

and awhile" and that he has also "seen where metal went up on the wall on the back." (R.22-

Meadows Dep. 173). Jason also confirmed that on numerous occasions the fiunace operators

would be injured while charging magnesium. (Id. at 200-201). Krupp has been burned while

charging magnesium and was aware of other incidents where he or other fumace operators got

burned. (R.65- Krupp Dep. 31-32). He also saw at "different times" "explosions of magnesium

occurring while the magnesium was being charged in a furnace." (Id. at 36-37). Vencill stated

he has witnessed "four or five other incidents" in his short stint with ACW that he would

21

characterize as an "explosion" and that he was injured in some of those prior explosions. (R.39-

Vencill Dep. 26, 30, 56-58). He further testified that he has scars on his arms from his work with

ACW, despite the fact he claimed to have always worn his fire retardant pouring jacket. (Id.).

Clearly, ACW's management and owners had knowledge of the explosive tendencies of molten

magnesium when moisture is introduced to the melt. Unfortunately, none of the employees were

aware of the fact that moisture was causing the hazardous substance to explode.

ACW alleged that it did not have knowledge of a "dangerous condition" from these prior

similar occurrences because it alleges they were of a different "magnitude." Yet, ACW

proffered the very same prior incidents in an attempt to show that Jason Meadows had

knowledge. Obviously, if the prior instances provided notice to Jason, ACW as the employer

would also have the requisite knowledge that it misrepresented to its employees. Be that as it

may, the lack of previous incidents is not dispositive. When "determining whether an employer

had knowledge that a dangerous procedure would be substantially certain to cause injury, the

focus is not how many prior accidents had occurred, but rather on the employer's knowledge of

the degree of risk involved." Logan v. Birmingham Steel Corp., 8th Dist. No. 80472, 2003 Ohio

5063. "Simply because [employees] are not injured, maimed or killed every time they encounter

a device or procedure is not solely determinative of the question of whether that procedure or

device is dangerous and unsafe." Cook v. Cleveland Electric Illuminating Company (8th Dist.

1995` 102 Oiiio A`"'.3'ii 417 429' R"vY3n v. Dai.ka iii ^.vY" vf^imeYiea I . DiSi. 2vvi^ 2vvi1> YY > >"' g g Y• J \ h

Ohio App. LEXIS 82, *4-*5; Taulbee v. Adience (10th Dist 1997), 120 Ohio App.3d 11, 19-20.

Accepting the ACW's reasoning "would be tantamount to giving every employer one free injury

for every decision, procedure or device it decided to use, regardless of the knowledge or

substantial certainty of the danger that the employer's decision entailed." Cook, 102 Ohio

22

App.3d at 429-30. Even if the explosion injuring Plaintiff was of a greater magnitude, this fact

will not preclude a finding that ACW knew of the dangerous conditions they created.

In addition, ACW's management and ownership were aware that industry standards

require that solid magnesium be stored in such a way to prevent moisture from getting onto the

ingots. Both McCoy and Sparrow testified that NFPA 480 provides standards for the storage of

magnesium. (R.68- McCoy Dep. 41; R.67- Sparrow Dep. 36-37). Recognizing the dangers of

moisture in the melting of magnesium, NFPA 480 mandates that magnesium solid "storage shall

be in buildings of noncombustible construction" and that the "floors shall be well drained to

prevent accumulations of water in puddles." (R.75- Ex. 19, NFPA 480, 8-1.3.1, 8-1.3.2). NFPA

also discourages the practice of storing ingots directly on concrete floors since moisture to wick

up into the ingots. (Id.). Sparrow testified that NFPA 480 requires that the storage area for

magnesium ingots must be "dry" and "clean." (R.67- Sparrow Dep. 36-37).

F. ACW deliberately misrepresented that the preheat process and personal protectiveequipment (PPE) used by its employees relative to handling, storing, melting andpouring magnesium, a "hazardous substance" was safe.

The evidence establishes that despite ACW's knowledge of the explosion dangers

associated with the charging of magnesium, a hazardous substance, its employees were not

educated about the known dangers associated therewith. Indeed, the evidence establishes that

ACW deliberately misrepresented to its employees, including Jason Meadows, that the process

used to'riaridie, rneit and pour magnesium was safe when in fact it was extremely dangerous.

Neither Parker nor ACW everYold Jason that the magnesium ingots or scrap were to be

preheated prior to placing them into the magnesium furnace. (R.22- Meadows Dep. 89, 199).

Moreover Jason never saw any other furnace operator (at Parker or ACW) actually preheat the

magnesium before charging. (Id. at 90). Jason had no idea that preheating the ingots was

23

necessary to remove moisture from the hazardous substance. Moreover, his training from Parker

and ACW only warned against putting "cold" objects in the molten magnesium. (Id. at 77, 85).

In addition, Jason was never instructed or told that he was required to wear a helmet with a full

face shield while melting and pouring magnesium. (Id. at 59-60). Whether or not helmets with

full face shields were available at the foundry on August 1, 2006 is irrelevant because ACW did

not provide Jason with a helmet or require its use. Indeed, Jason "assumed that face shields were

optional" because "what [he] was trained and given to wear were safety glasses" and because he

"was never given a face mask or a face shield" by either Parker or ACW. (Id. at 113-114).

Krupp was originally hired and trained by Parker to work as a furnace operator in 2000.

(R.65- Krupp Dep. 12). During his tenure at Parker, he was never instructed on a method to

preheat magnesium (ingots or scrap) prior to charging and confirmed that Parker never had a

practice or method of preheating the ingots. (Id. at 17-18). After the foundry transferred to

ACW, Krupp stated that he "wasn't taught nothing as far as preheating." (Id. at 26).

Disconcerting is the fact that ACW had Krupp train its new furnace operators and he and Jason

were left in charge of developing the preheat procedures used at ACW. (R.67- Sparrow Den. 46-

47, 49). Yet, Krupp had no idea of the explosion danger involved when moisture is introduced to

molten magnesium metal:

Q. .... So there are times when you would just place ingot into the pot withoutpreheating the ingot, correct?

A. Well, it's preheated because it's sitting right there next to the furnace.

Other than that is there any method that you were taught to preheat magnesiumingots?

A. No.

Q. Did anyone ever explain to you any hazards that are created by moisture beingpresent in the magnesium melting process?

24

A. No.

(R.65- Krupp Dep. 20) (emphasis added).

A. Well, as far as metal, it doesn't have to be wet to be cold. So I seen hot metalhit cold metal and it blew and that was at the other foundry. So it hadnothing to do with moisture.

Q• What about moisture?

A. Moisture, that would be - I don't know. If it was cold, it would probably blowbut if it was water, who knows. It may not. It's just moisture.

Q. When you are talking about hot or cold in this context, you are talking about themoisture being hot or cold?

A. Or the metal.

Q. Or the metal?

A. Yeah. Same thing.

As you sit here today, is it your understanding that if the moisture involved withthe melting of magnesium is wann, that that would eliminate any hazard for themagnesium to explode?

A. I don't know.

Q. You don't know?

A. I don't know.

(Id. at 27-28) (emphasis added).

Q. If the moisture dripped into the pot that contained the melted magnesium, what, itanything, would have happened?

A. It wouldn't drip, it's just moisture.

Q. What if moisture did, in fact, drip into the molten --

A. If you got that much moisture on it, you shouldn't put it in the furnace.

25

Correct. But let's assume you didn't see the moisture and placed the ingot on topof the scrap and moisture dripped into --

A. Nothing.

Q Nothing would happen?

A. You might get a spit, that's it.

(Id. at 38-39) (emphasis added). Krupp would rarely wear the helmet with full face shield while

he worked at Parker and ACW. (Id. at 28-30). He did not engage in the "practice of wearing a

helmet with a shield on it" until 2008, two years after Jason was injured. (Id. at 41-42). Krupp,

the person in charge of training and supervising employees also acknowledged that in 2006, the

time Jason was injured, did not wear the helmet and full face shield on a regular basis. (Id. at

44). Krupp was never disciplined for not wearing the full face shield and helmet. (Id. at 41-42).

The utter lack of knowledge of the hazards present when moisture is introduced to molten

magnesium is exacerbated by the fact that ACW placed Krupp and Jason in charge of developing

the melt procedures, including how or whether to preheat the ingots. Sparrow provided the

following testimony as to who made decisions surrounding the preheating procedures:

Q. In August of 2006, who was the person responsihle for making the decision onhow to pre-heat magnesium ingots by placing them on top of the fnrnace?

A. When?

Q. August of 2006.

A. Before the accident or after?

Q. Before.

A. That would have been the two main people that were melting.

Q. Who would have been who?

A. Leon and Jason.

26

(R.67- Sparrow Dep. 49; see also R.41- Bauer Dep. 35). Even more troublesome, Krupp was not

100 percent certain who was in charge of the melt deck or making the decisions surrounding the

methods used. When asked "who would be responsible at [ACW's] facility for establishing the

procedures for preheating magnesium," Krupp hesitantly responded "I guess me." (R.65- Krupp

Dep. 53-54). His uncertainty supports the conclusion that ACW did not have a preheat

procedure in place or was never conveyed to those who would be operating the furnaces at

ACW. Leaving two employees who were unaware of the explosion hazard involved with

moisture, the necessity of preheating the ingots to remove any moisture, and what personal

protective equipment is required, demonstrates ACW's deliberate intent to cause injury to its

employees.

The other inadequately trained ACW employee who worked as a furnace operator in

2006 was Vencill. Vencill was trained by Krupp and his testimony demonstrates an absolute

lack of knowledge surrounding the explosive tendencies of magnesium when moisture is

introduced into the melt. This lack of understanding of the hazardous substance is even more

troubling when viewed through the backdrop of the explosion that injured Jason. Vencill did not

receive any written training materials or employee manuals from ACW. (R.39- Vencill Dep. 13-

14). Vencill provided the following testimony regarding his knowledge and training:

Q. Now, have you ever been told what effect, if any, moisture has on magnesium?

A. Yes. Bud has told me that. If the magnesium hit water, it would explode.

Q. What do you mean by that, if it hit water?

A. ' That if moisture would hit while melting magnesium, it would explode.

Q. And did he ever tell you anything else other than what you just said?

A. No. No.

27

Q• Did anyone ever tell you to make sure that there was no moisture on top of theingots?

A. No. Not directly.

.... What's your understanding of how moisture would hit an ingot which wouldcause an explosion?

A. I don't know, I don't know. I don't know

Q• Do you have any idea of how moisture may find its way into a furnace whichwould cause an explosion, in which magnesium is being melted?

A. No.

.... Have you ever been told how magnesium should be stored relative tomoisture?

A. No.

Q. When you talk about moisture causing an explosion, you're talking about what?Like at what point in time in the foundry process?

A. What now?

Q. You said that moisture can cause an explosion.

A. Correct.

Q. .4t what point in time from the point of the magnesium sitting, being stored, upthrough it being melted, is there a point in time that's more dangerous than

others?

A. No. I don't understand what - I don't know if moisture is on the ingot or not. Idon't know when it would be hitting the ingot. I'm not some real sure abouthow that process goes.

Q. Do you have an idea of at what point in time moisture becomes a factor where itwould cause an explosion, potentially?

A. No.

Q. Have you ever been trained relative to the causes of magnesium exploding in afurnace?

28

A. No.

Q Other than being trained, do you have independent knowledge of what wouldcause magnesium to explode while it's in afurnace being melted?

A. No.

(Id. at 36-38) (emphasis added).

Q. What is your understanding of the reason to preheat magnesium?

A. So you're not putting anything cold into a melting furnace.

Q. Anything else?

A. Pretty much, no.

(Id. at 44) (emphasis added). In addition, Vencill did not wear his personal protective

equipment:

Q. ... were there times when you didn't use the full face shield?

A. Yes.

Q. How often?

A. As in whether I was -- depends on if I was messing with the furnaces. If Iwas messing with furnaces, I would say 75 percent of the time.

Q. 75 percent of the time you would not wear the full face shield?

A. 25percent of the time I would not.

Q. Why not?

A. I didn't feel like it.

(Id. at 22) (emphasis added).

ACW did not implement a necessary procedure to preheat the magnesium ingots before

they were placed into the furnace containing molten magnesium. (R.77- Albright Affidavit).

This deliberate failure caused the August 1, 2006 explosion resulting in Jason Meadows'

29

debilitating injuries. ACW never told Jason that the magnesium ingots or scrap were to be

preheated prior to placing them into the magnesium farnace. (R.22- Meadows Dep. 89, 199).

Jason did not see any other furnace operator (at Parker or ACW) preheat the magnesium before

charging. (Id. at 90).

There is no evidence that ACW utilized any acceptable method of "pre-heating" the

magnesium. It is undisputed that in order to properly preheat the magnesium prior to

submerging it in molten metal, the ingot must reach a temperature of at least 300° F. (Id.; R.68-

McCoy Dep. 36; R.67- Sparrow Dep. 33; R.65- Krupp Dep. 50; R.39- Vencill Dep. 43).

ACW's management and ownership testified that ACW employees had no way to determine

whether the magnesium ingot reached 300 degrees:

Q. Do you have an opinion on the length of time a magnesium ingot would have tobe placed on the side of a furnace in order to bring it to a temperature of 300degrees?

A. Depending on your flame and your furnace itself, you would need more thana few seconds or up to a few minutes. We melt several pots a day. Theywould be differing times all during the day.

Q• What instruction, if any, is given to the Air Craft Wheels employees relative tothe amount of time a magnesium ingot should be placed on the furnace prior tocharging?

A. We don't talk about time, we talk about dryness. Make sure you don't seemoisture, make sure it feels dry. An ingot weighs very much and can slideright out of your hands if it's wet.

(R.68- McCoy Dep. 38).

Q. Are you aware of what instructions would have been given to the Air CraftWheels employees back in 2006 relative to detennining the temperature of amagnesium ingot while -- prior to it being placed in the furnace?

A. No. I don't know why 2006 would be any different than any other year.

Q. Well, are you aware of what instructions would have been given in any year?

30

A. Dryness, make sure everything that you put in is dry.

Q So there wouldn't have been any specific instructions regarding the temperatureof the ingot, correct?

* * *

A. I'm not aware of any.

(Id. at 42).

Sparrow, also confinned the obvious: that an employee would have no way to know

when the ingot reached 300 degrees:

Q. And can you tell me how an employee of Aircraft Wheels would know that themagnesium ingot had reached a temperature of approximately 300 degrees beforeplacing it in the furnace?

A. They wouldn't.

(R.67- Sparrow Dep. 33) (emphasis added).

Q. Are employees instructed on the specifzc temperature a magnesium ingot shouldbe pre-heated prior to it being placed into a charge?

A. No.

(Id. at 59) (emphasis added). Furthermore, ACW's employees testified that they had no way to

determine when (or if) the magnesium ingots reached the desired 300° F temperature. (R.65-

Krupp Dep. 51-53; R.39- Vencill Dep. 42-43). Because there was no method to ensure the

magnesium ingot reached 300 degrees, ACW's alleged process does not protect its employees

F...... 41.e 1.«.....« 1....;..'. 1'..,'..«A.. ' a A '' ' I'_..,. L,.:^- AA_A L_ la 1tavui ui^ iuivrvu enpivnivu il(tLMUJ aJJVeiat'GLL wiU1111V1Ji.U1G UOllls 4UUGU LV tll0 rtlotlerl rtieLal.

ACW stored its magnesium ingots in a high moisture area. The "scrubber room"

contained a ventilation system that used "air scrubbers" to clean and reticulate the air in the

foundry. In many instances the scrubbers would leak water onto the floor. (R.67- Sparrow Dep.

29-31; R.39- Vencill Dep. 51-56). Storage of the magnesium ingots in the scrubber room added

31

to the potential of moisture being on the ingots prior to being melted. Sparrow was aware of the

issues caused by storing the magnesiuni in the scrubber room. Eight months before ACW

purchased the foundry, Sparrow was promoted to foundry supervisor which included overseeing

all safety issues at the foundry. (R.67- Sparrow Dep. 16). Around this time, Parker's safety

committee recognized and discussed the scrubber room storage. Specifically, Parker's "Safety

Committee" identified a need to protect the ingots from the water from the "Scrubbers" -- "Need

secondary containment area to protect area from scrubber water" and "Need to improve storage

conditions for metal ingot storage. Ingot is absorbing moisture from concrete." (R.75- Ex. 13,

Bates No. PH-0000936). The storage problems were never rectified by Parker or ACW.

It is well known that when moisture is added to molten magnesium, a hazardous

substance, it will react violently and cause an explosion which will expel the molten metal from

the pot. It is not disputed that OSHA Regulations mandate ACW to provide and require the use

of all personal protective equipment associated with the known hazards of its work. In the case

of molten metal, OSHA requires ACW to provide and require the use of a helmet with a full face

shield in addition to safety glasses. ACW's furnace operators' lack of krio•vledge of the

"hazards," coupled with its failure to require proper PPE be worn at all times demonstrates

ACW's deliberate misrepresentation of the dangers of a "hazardous substance" to its employees

who would be constantly exposed to those dangers. Therefore, the trial court below erred when

it granted ACW's Motion for Summary Judgment because reasonable minds could conclude that

ACW made deliberate misrepresentations as to a hazardous substance, magnesium, creating a

presumption that ACW's acts were done with the intent to injure pursuant to R.C. 2745.01(C).6

6 Plaintiffs also asserted a claim against ACW for joint venture liability in connection with Parker's actsand omissions; however, once the trial court granted Parker's Motion for Summary, that claim becamemoot because ACW could not be vicariously liable without a finding of direct liability against Parker. Ifthis Honorable Court determines that there is a question of fact as to Parker arising out of a joint venture,

32

ASSIGNMENT OF ERROR II:

THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-APPELLEE PARKER HANNIFIN

CORPORATION'S MOTION FOR SUMMARY JUDGMENT BECAUSE PLAINTIFFS PRESENTED

SUFFICIENT EVIDENCE ESTABLISHING PARKER'S DIRECT LIABILITY AS WELL AS VICARIOUS

LIABILITY AS A JOINT VENTURER.

A. Parker's direct negligence and active participation in the magnesium foundryoperations after the transfer created a genuine issue of material fact.

The trial court erred in granting summary judgment to Appellee Parker because the

evidence established that Parker actively participated in the day-to-day operations of the

magnesium foundry after the transfer in 2004 through the date of explosion. Parker attempted to

portray itself stranger to the acts and omissions which caused the August 1, 2006 explosion

resulting in serve and debilitating injuries to Appellant Jason Meadows. Parker disingenuously

claimed that it was nothing but a buyer of parts and did not participate in the operation of the

foundry after it was transferred to ACW in July of 2004. However, nothing could be further

from the truth. The undisputed evidence established that Parker actively participated in the

foundry operation subsequent to the transfer by:

Training ACW furnace operators how to process and pour molten metals, including theuse of personal protective equipment. (R.33- Ex. 12; R.37- Hardman Dep. 66-69; R.35-Richards Dep. 70-71; R.41-Bauer 23-33).

Training ACW employees how to saw parts. (R.33- Ex. 12; R.37- Hardman Dep. 66-69;R.35- Richards Dep. 70-71).

Perfonning extensive maintenance at the ACW foundry. (R.33- Ex. 12; R.37- HardmanDep. 13-14, 44-45, 104; R.35- Richards Dep. 70; R.41-Bauer 23-33).

• Perfonning maintenance on ACW's foundry equipment. (R.33- Ex. 12; R.37- HardmanDep. 13-14, 44-45, 104; R.35- Richards Dep. 70; R.41-Bauer 23-33).

Training ACW employees on maintenance of the equipment. (R.33- Ex. 12; R.37-Hardman Dep. 13-14, 44-45, 104; R.35- Richards Dep. 70; R.41-Bauer 23-33). .

ACW would be subject to liability for the acts of the joint venture. The same arguments and evidenceunder Appellants Assignment of Error II, Section C would equally apply to ACW establishing a jointventure.

33

Accepting shipments of raw materials on behalf of ACW at Parker's loading docks.(R.37- Hardman Dep. 51-54, 61-62; R.35- Richards Dep. 74-75).

Recklessly handling the accepted raw metals by placing them in an uncovered parking lotexposing to the elements until retrieved by ACW. (R.37- Hardman Dep. 51-54, 61-62;R.35- Richards Dep. 74-75).

Sharing and/or providing the necessary service for disposing of ACW's waste / garbage.(R.39- Vencill Dep. 39).

Parker's active participation not only subjects it to direct claims of negligence, but also creates

multiple genuine issues of material fact as,to whether Parker and ACW entered into a joint

venture whereby each party is joint and severally liable for the acts of the other.

After the 2004 transfer of the foundry, Parker employees actively trained ACW

employees and performed maintenance at the foundry. (R.33- Ex. 12). Robert Hardman, a

Parker employee, at first denied that he trained any of the ACW employees subsequent to the

transfer.

Now, in 2004, after the transfer of ownership, did you train any of the employeesof Air Craft?

A. No.

(R.37- Hardman Dep. 66). "Khen confronted with records in his own handwiiting, he reluciantly

admitted that he trained ACW employees on how to melt and pour magnesium.

Q. It says on September 10th, 2004, the date requested, which is about four lines

A.

Q.

A.

Q.

A.

down, it was requested by Sparrow and it says, training new saw man.says you spent one hour to complete that training, does it not?

Yes.

Do you recall training the saw man?

Yes.

And you did that actually on September 1st as well, correct?

No. Not that I'm aware of.

And it

34

Well, let's go back up to the top of that page.

A. Yes, I did.

Q. And you spent two hours training a saw man, which would have been an Air CraftWheels employee, correct?

A. Yes.

Q. And that saw man would have been a saw man in the foundry, correct?

A. Yes.

Q. So back in 2004, subsequent to -- well, here, let's go to November 2004. We'lljust referred to the typed one. It says, trained foundry employee on how to pouron November 10th, does it not?

A. Yes.

So you were training the Air Craft Wheels employees on how to pour as well ashow to saw, correct?

A. Yes.

(Id. at 66-69) (emphasis added). Parker's Civ.R. 30(B)(5) representative, Dennis Richards,

confirmed Parker's involvement with training ACW employees subsequent to the transfer.

Q, So during that time period, as the documents that we've reviewed with Mr.Hardman show, Parker-Hannifin provided training to some of the Air CraftWheels employees with respect to the foundry process, correct?

A. There was a limited training on the foundry process. There may have beensome training on the maintenance process.

Q. Well, if you want to go through the records again, but you saw that Mr. Hardmanactually filled out records which indicated that he provided training to personsinvolving the pouring process, saw cutting, correct?

A. On those two instances, yes.

Q. On those to instances. So during those two years, Parker-Hannifin was involvedin some capacity, whether it be a limited capacity or not, in training the Air CraftWheel employees, correct?

35

A. Yes.

(R.35- Richards Dep. 70-71; see also R.41-Bauer 23-33). This active training of ACW

employees is significant, in particular the training on metal pouring, due to Parker's own lack of

process to preheat the ingots and their failure to require its employees to utilize full face shields

when it operated the foundry. More importantly, the improper training of ACW's fumace

operators by Parker and ACW is illuminated by ACW's employees' utter lack of understanding

and appreciation of the dangerous associated with moisture being present on a magnesium ingot

that is added to molten metal. (R.65- Krupp Dep. 20, 26, 27-28, 38-39; R.22- Meadows Dep. 89,

90, 199; R.39- Vencill Dep. 36-38, 44).'

In addition to training ACW foundry employees, Hardman also testified that after the

transfer in 2004, he performed extensive maintenance at the foundry. In fact, during the years

following the transfer, Hardman confirmed that while employed by Parker, he was working at

the ACW foundry "once a day, sometimes twice a day." (R.37- Hardman Dep. 104).

Q. . . . . During the years 2004 through 2006 you were an employee of Parker-Hannifin, correct?

A. Right.

Q. And during that time period you would also do maintenance work over at the AirCraft Wheels facility, correct?

A. Yes.

(Id. at 44-45).

Q• .... Subsequent to 2004, did you do any maintenance work at the Air Craftfacility, Air Craft Wheels facility while you were an employee of Parker-Hannifin?

A. Yeah, we did for two years.

7 ACW's einployees' lack of training is discussed at length under Appellants' Assignment of Error 1.

36

Why is it that when you -- well, when you say we, I'm assuming you'rereferencing Parker-Hannifin, correct?

A. Yes.

Was there anyone else employed by Parker-Hannifin who did maintenance workat the Air Craft Wheels facility other than you?

A. Well, yeah, Kurt Trill and Jim Clutter.

*

Q. And they were Parker-Hannifin employees?

A. Yes.

(Id. at 13-14).

Q. Now, for the two years following the transfer of ownership, 2004 and 2005, whenParker was involved with doing maintenance work at the Air Craft facility, why isit that Parker was providing maintenance work, maintenance assistance andpersonnel?

A. We provided personnel to -- because we knew the equipment.best and wewanted to make sure -- when I say best, meaning we bought it, wemaintained it. Once they moved there, or they bought the equipment, so we[Parker] were obviously interested in them continuing to deliver product ontime. So we maintained it.

(R.35- Richards Dep. 70; see also R.41-Bauer Dep. 23-33) (emphasis added). Parker's active

involvement in the day-to-day foundry operations created a genuine issue of fact as to whether

Parker was directly negligent, apart from joint venture liability.

Parker was also negligent in accepting and handling magnesium ingots on behalf of

ACW after it sold the foundry. Prior to the transfer of the foundry, Parker would accept

deliveries of magnesium ingots and carefully "stage" them inside their building until they moved

them to the "scrubber room" in the foundry. (R.35- Richards Dep. 74-75). After the 2004

transfer up through the present, Parker would accept deliveries of raw metals, including

magnesium ingots, from suppliers on behalf of ACW because the foundry does not have a

37

loading dock. (R.37- Hardman Dep. 51-54). After accepting the bundles of magnesium ingots,

Parker would leave them in the uncovered parking lot exposed to the elements until ACW came

to retrieve the bundles. (Id.).

Q• When is the last time that you would have moved any magnesium or aluminumingots to the Air Craft Wheels facility, either from a delivery truck or fromParker-Hannifin itself?

A. We unload at our docks for them to come and get, because they don't have adock.

Right. So when the delivery truck would come in, you, as a Parker-Hannifinemployee, would take delivery of the ingots?

A. I would unload the ingots and set them outside the door and ACW wouldcome and get them.

Q. When you say you set them outside the door, where would you place them?

A. In the driveway there.

Q. Outside, there wasn't any roof, correct?

A. No.

Q• I'm correct?

A. Yes.

(Id. at 51-52). Parker did not give "any consideration as to the weather conditions" and that the

ingots could be "delivered on a rainy day, snowy day, sunny day." (Id. at 53). Indeed, despite

the well recognized dangers of melting ingots containing moisture, Parker did not "utilize any

methods or procedures to ensure that the magnesium ingots that [Parker took] delivery of and

then [made] available to Air Craft Wheels [were] kept free from moisture." (Id. at 61-62).

Storing magnesium ingots outdoors, while not prohibited, falls below industry standards and

recommended practices. (R.46- Albright Affidavit). Parker was aware of the nonexistent

38

preheat process to remove nioisture from the ingots that was in place and therefore, Parker's

accepting delivery of magnesium ingots for ACW and leaving them in the uncovered parking lot

exposing them to inclement weather falls below industry standards and constitutes negligence.

Parker did more than just sell its foundry to ACW, it actively participated in its operation

when it trained ACW furnace operators how to process and pour molten metals, trained ACW

employees in the saw room, performed maintenance at the foundry and on the equipment, trained

ACW employees on maintenance of the equipment, and accepting shipments of raw materials on

behalf of ACW, all after the 2004 transfer. It is there own direct acts and omissions that give rise

to their liability and creates a genuine issue of material fact.

B. The Asset Purchase Agreement does not absolve Parker of liability and infact creates a duty by which it can be found negligent.

In its Motion for Summary Judgment, Parker alleged that the Asset Purchase Agreement

("APA") between itself and ACW involving the transfer of the foundry absolved it of any

liability for its direct acts and/or omissions contributing to Plaintiffs injuries. (R.33- Ex. 8,

APA). The APA, however, does not support Parker's position and is in direct contradiction of

the parties' acts which define their business relationship. Indeed, Parker breached the APA

thereby giving rise to a duty and a finding of negligence.

In the APA, the Seller, Parker, represented to ACW and was required to be "in

compliance in all material respects with all applicable laws, regulations and orders that affect the

Transferred Assets[.]" (R.33- Ex.8, p.6, 5h.; R. 35- Richards Dep. 50-59). "Transferred Assets"

included the machinery and equipment at the foundry as well as "all of the aluminum and

magnesium raw metal inventories." (R.33- Ex. 8, p.2, 2(a)(i) and (i)(i)). This representation and

required compliance included "Environmental Laws" which included "the Occupational Safety

and Health Act (29 U.S.C. Section 651, et seq., as amended) and any state and local counterparts

39

of such statutes or regulations." (Id. at p.1, definitions). Similarly, the APA defined "Hazardous

Substances" to include "any flammable substance or explosives[.]" (Id. at p.2, definitions

"Hazardous Substances" (iii)).

At the time of the transfer, in breach of the APA, Parker was not in compliance with

applicable laws and regulations. As discussed above, OSHA and industry regulations require

that employers require the use of appropriate eye and face protection when working with molten

metal. (See 29 CFR 1910.132(a); 29 CFR 1910.132(f); 29 CFR 1910.133(a)(1); R.46, 77-

Albright Affidavits). Parker was not in compliance with the above referenced laws, regulations,

and standards because it did not require the use of fall face protection or preheat the magnesium

ingots to drive off moisture.

At the transfer of the foundry, Parker only required its employees to wear safety glasses,

aprons, sleeves, gloves and spats to cover the shoes. (R.22- Meadows Dep. 42; R.37- Hardman

Dep. 30, 84). At no time did Parker require its furnace operators to wear full face shields. (Id.).

Q. After like 1997 when the foundry was fixed and back in operation, do you recallever seeingfull face guards in thefoundry facility?

A. For the saw I did, yes.

Q. And that would have been the only type ofjob that would have been utilizing thefullface masks after the fire, correct?

A. Yes.

(R.37- Hardman Dep. 34) (emphasis added).8 Despite being required by law and industry

regulations, Parker did not require its employees to use full face shields when working with

molten metal. (Id. at 101; R.37- Hardman Dep. 34, 84; R.46- Albright Affidavit). Because

Parker was not in compliance with the applicable laws and regulations mandating eye and face

8 It was not an uncommon practice for Parker employees to melt magnesium in jeans and a t-shirt withsafety glasses and gloves being the only personal protective equipment used. (Id. at 79-80; R.43- Ex. 10).

40

protection when it transferred the foundry, it effectively breached the APA creating a duty owed

to ACW employees, including Appellant Jason Meadows.

In addition, Parker was not in compliance with "Environmental Laws" as it related to the

handling of "hazardous materials." Magnesium is a "hazardous material" subject to 29 CFR

1910.1200.

Q• What is your knowledge with respect to magnesium in the foundry setting?

A. I know that it can be dangerous if not handled properly.

Q• And you're probably aware that it is considered a hazardous material under theOSHA regulations?

If it's not within your knowledge, please let me know.

A. Yes, I am aware.

Q. So it would be a hazardous material, correct?

A. Yes.

(R.35- Richards Dep. 17) (emphasis added).

Q• Now, we've talked about the fact that magnesium is a hazardous substance,correct?

A. Yes.

That would be subject to the environmental laws, including OSHA, correct?

A. Yes.

Q. So the handling of magnesium and how it's used in the foundry process would besubject to environmental laws, including OSHA, correct?

A. I'm not an attorney, but it is a hazardous material.

41

(Id. at 49-50). Further, magnesium would fit the definition of a "Hazardous Material" as it is

defined in the APA, requiring Parker to comply with the all laws surrounding the handling of

magnesium. (Id. at 52-59).

.... And the agreement [APA] required Parker-Hannifin to comply with the lawwith respect to handling the hazardous substance, specifically magnesium,correct?

A. Yes.

(Id. at 59) (emphasis added).

At the time of the transfer, Parker was not in compliance with OSHA and industry

regulations regarding the handling of magnesium. Parker created and designed the magnesium

melting and pouring procedures at the foundry. Preheating magnesium ingots to a minimum

temperature of 150° C (or 3000 F) to remove moisture is required by Material Safety Data Sheets

("MSDS") which are prepared by suppliers pursuant to OSHA standard 29 CFR 1910.1200.

(R.46- Albright Affidavit; R.33- Ex. 9; R.35- Richards Dep. 54-57). Preheating is also required

pursuant to established industry regulations and standards. (R.46- Albright Affidavit; R.33- Exs.

19, 29). Jason Meadows testified that neither Parker, nor ACW required its furnace operators to

preheat the magnesium ingots prior to charging the pot. (R.22- Meadows Dep. 89, 199; see also

R.65- Krnpp Dep. 17-18, 20-21, 25-26).

Despite being required by MSDS promulgated pursuant to 29 CFR 1910.1200 and

established inrliicfi-v remilatinng Pdid have a.^. adeq'»ate pr.^,^.e59 L. plaee t.^. pre.heat ti'..°.J b..^......... , Parker

magnesium ingots to remove moisture prior to melting. Because Parker was not in compliance

with the applicable laws and regulations mandating the preheating of magnesium ingots when it

transferred the foundry, it effectively breached the APA creating a duty owed to ACW

employees, including Appellant Jason Meadows.

42

C. Parker was a joint venturer with ACW and subject to joint and severallyliable of all acts flowing from the combined venture.

Parker attempted to portray its business relationship with ACW as nothing more than that

of a "buyer and supplier." Unfortunately for Parker, however, buyers do not generally train the

supplier's employees, buyers do not provide maintenance of the supplier's equipment, buyers do

not accept delivery of raw materials on behalf of their supplier, and buyers do not enter into

written agreements to share costs and technical knowhow while reserving control over the

process by which those parts are produced. The evidence established that Parker and ACW

entered into an on-going business relationship that can only be described as a joint venture.

A joint venture is an association of persons with intent, whether express or implied, to

engage in and carry out a single business venture for joint profit, for which they combine their

efforts, property, money, skill and knowledge without creating a partnership. Ford v. McCue

(1955), 163 Ohio St. 498see also Silver Oil Co. v. Limbach (1989), 44 Ohio St.3d 120, 122.

"[J]oint venture agreements make the parties jointly and severally liable for the obligation of the

joint ventures." Al Johnson Constr., Co. v. Kosydar (1975), 42 Ohio St.2d 29, 32. A joint

venture need not be established by showing an express agreement, but may be ir..plied or

inferred, in whole or in part, from the acts and conduct of the parties. Bennett v. Sinclair

Refining Co. (1944), 144 Ohio St. 139, 151. The issue of whether two parties entered into a joint

venture is a question of fact for the jury. Id.

The undisputed evidence demonstrates that the continuing business relationship between

Parker and ACW created a joint venture, as such each party is jointly and severally liable for the

acts done in fizrtherance of the venture. In early 2004, Parker transferred the foundry which was

part of its Aircraft Wheel & Brake Division to ACW and entered into an on-going business

43

relationship whereby they agreed to combine their property, skill, knowledge and agreed to share

the resulting profits and cost savings in furtherance of the joint undertaking.

1. Parker actively participated in the day-to-day operations of the foundry after thetransfer.

As discussed above, Parker was not a passive buyer of parts from ACW, it actively

participated in the day-to-day operations of the foundry after it was transferred to ACW. Parker

trained ACW furnace operators how to process and pour molten metals, it trained ACW

employees how to saw parts, performed maintenance at the foundry and on the equipment,

trained ACW employees on maintenance of the equipment, and accepted shipments of raw

materials on behalf of ACW, all after the 2004 transfer. In addition, after the transfer in 2004,

ACW has used without objection Parker's dumpsters to dispose of its waste. (R.39- Vencill Dep.

39). Parker's active participation demonstrates the parties' combination of property, skill, and

knowledge thereby creating a joint venture.

2. The Network Procurement Agreement #55 farther established the joint venturebetween Parker and ACW.

In addition to their active involvement in the foundry operations after the transfer, on or

around June 30, 2004, Parker and ACW entered into an agreement titled: "Parker Hannifin

Corporation Aircraft Wheel and Brake Division Network Procurement Agreement #55"

("Network Agreement"). (R.33- Ex. 4). Pursuant to the Network Agreement, Parker and ACW

entered into an "on-going relationship" with numerous outlined commitments. The

commitments, deemed the "Foundation" of the Network Agreement, were to "improve [ACW's]

technology, industry position and competitiveness", each party would "share the benefit from

[their] commitment, maintain or improve competiveness" and ACW would "work with Parker to

reduce cost, improve quality & reliability, increase sales." (Id.) The Network Agreement

44

required Parker to "acquire ... 95% of its purchases (based on dollars) for Magnesium and

Aluminum Castings" from ACW, "a total value amount of about $1,000,000[.]" (Id.).

The Network Agreement fitrther provided numerous cost sharing provisions beneficial to

both Parker and ACW. ACW was to "continuously improve competitiveness and performance in

all areas of the relationship including but not limited to co-development in design cycle, quality,

release lead time, minimum release quality and pricing." (Id.). ACW was to "evaluate

opportunities for cost/price reductions ... and to communicate them promptly to Parker." (Id.).

Moreover, ACW was obligated "to reduce its costs ofprocurement and production, and shar[e]

any resultant cost savings" with Parker and was to "consider ... any potential manufacturing

efficiencies suggested by Parker and ... provide price reductions to Parker due to any resulting

cost savings." (Id.) (emphasis added). Likewise, ACW was required to advance its "economies

of production and technical prowess at least as fast as other competitors" and was required to

"offer[] the price and performance benefits of those improvements to Parker." (Id.). The

Network Agreement states that ACW has "identified" a"`value added' objective of 20%" and

ACW "agreed to diligently work together with Parker toward the attainment of [that] objective."

(Id.).

Similarly, ACW received substantial cost savings through its venture with Parker. (Id.).

As stated above, "95%" of Parker's purchases totaling an estimated "1,000,000" will be made

from ACW. (Id.). Similarly, Parker agreed to increase ACW's competitiveness in the industry

so long as cost savings were shared with Parker. (Id.). ACW was granted access to Parker's

"tooling" with major tooling repairs being reimbursed by Parker and also had access to Parker's

intellectual property, such as Parker's "drawings and/or specifications." (Id.). In addition,

"Parker engineering and technical personnel may, from time to time, render or receive assistance

45

and advice" to ACW. Similarly, the Network Agreement designated ACW as a "signatory under

a PARKER export license." (Id.).

There were numerous joint benefits derived by both Parker and ACW under the Network

Agreement.

Q• ... But under price it says the concept is share, and that would be between Parkerand Air Craft Wheels, correct, that would be the sharing parties, right?

A. Yes.

And the "benefit from our commitment," that "our commitment" would referenceboth parties, Parker-Hannifin and Air Craft Wheels as well, correct?

A. I'm not sure commitment is the right word.

Q. That's what's there, correct?

A. Yes.

Q. And that "our" would reference both Parker-Hannifin and Air Craft Wheels;correct?

A. Yes.

Q. So the concept there was for both parties to benefit from the pricing, correct?

A. As with a'L' network procurement agreements and with any otber suppliers,we would want both parties to make a profit.

*

... You would agree, would you not, that the intention behind the concept statedunder price is that both Air Craft Wheels and Parker-Hannifin would profit,correct?

A. Yes, we would want both parties to profit.

Q. And you were working together toward that goal, correct?

A. Yes.

46

... Parker-Hannifin wanted and instructed the supplier, in this case Air CraftWheels, to work with Parker to reduce cost, improve quality, reliability andincrease sales, correct?

A. Yes.

Q• Now, the network agreement requires Parker to purchase 95 percent of its needsfrom Air Craft Wheels with respect to the parts identified, correct?

A. Yes.

Q. And has Parker-Hannifin complied with that aspect of the agreement, to yourknowledge?

A. I don't know. I just know the majority is purchased from them.

Q• Are you aware of any objections that have been made by Air Craft Wheels withrespect to Parker's not complying with that term of the contract?

A. I am not.

Q. Now, so you would agree, would you not, that this agreement provides a benefitto both Parker and Air Craft Wheels with respect to their joint commitment toimprove Air Craft Wheels' competitiveness?

A. We want both sides to benefit from the agreement.

Q. And that would include Air Craft Wheels, correct?

A. Yes.

(R.35- Richards Dep. 22-25) (emphasis added).

Parker had significant (while not exclusive) control over the joint venture. The Network

Agreement expressly reserved a substantial amount of control by Parker over ACW and the

foundry process. Pursuant to the agreement, the castings were govemed by Parker's quality and

specification requirements. More significantly, Parker dictated the foundry "process" as ACW,

under the Network Agreement, was obligated to "notify" Parker of "any process changes prior to

implementation." For example, the addition of a furnace to preheat the magnesium ingots to

47

remove moisture prior to melting by ACW would have to be submitted to Parker in writing and

approved by Parker. Absent Parker's approval, ACW was unable to change the foundry process.

Likewise, Parker required ACW to "fornish ... the names, addresses, telephone numbers, and

point of contact for any and all outside processors" and all "outside processing arrangements"

must be expressly approved by Parker.

The Network Agreement, coupled with the parties' continuing acts, demonstrates

Appellees' intent to enter into an on-going joint venture whereby they would each make

contributions, share control of the enterprise, and share the cost savings and benefits that resulted

from their business venture. As a joint venture, Parker is joint and severally liable for the acts of

ACW, and therefore, summary judgment was improper.

3. Parker paid its emnloyees annual income to remain at the foundry after the 2004transfer to ACW.

A substantial number of Parker foundry employees continued working for ACW in the

same capacity without interruption. In most, if not all of these cases, Parker provided pay

incentives and "transition" bonuses to its foundry employees around the time of the transfer to

ACW. Ra?ph Bauer, a long time Parker employee, entered into an agreement wi*u Parker

whereby Parker would "provide an incentive for Mr. Bauer to stay with Aircraft Wheels, LLC in

order to apply and transfer his expertise and effort to provide quality parts on time to" Parker.

(R.33- Ex. 14) (emphasis added). Parker agreed to pay Mr. Bauer an annual bonus of $2,000

through June of 2007 so long as Mr. Bauer remained employed by ACW. (Id.). Richards

explained the justification of the Bauer bonus.

Q. If you know, why is it that Mr. Bauer was offered this incentive?

A. He was the most experienced molder that worked for Parker-Hannifm in theWheel and Brake Division. And we wanted to make sure that, again, theknowledge was transferred to any additional or new employees that may be

48

coming in and that they would be able to, again, make quality parts for us,Aircraft Wheel and Brake.

(R.35- Richards Dep. 78). Similarly, Parker offered to pay a "transition bonus" to be determined

by rate of pay and years of experience" to those foundry employees who agreed to accept the

same position with ACW after the transfer. (R.33- Ex. 15). This "transition bonus" was offered

to ensure a smooth transition and to further Parker and ACW's venture.

4. The Lease Agreement established that Parker retained legal title to the ^ropertyand retained significant control over ACW's use of the property.

As part of the transfer, Parker and ACW entered into a "Lease Agreement" surrounding

the foundry. (R.33- Ex. 5). The term of the Lease was ninety-nine (99) years. (Id.). The Lease

Agreement is fiu-ther evidence demonstrating the parties' intent to enter into a joint venture

relationship. Significantly, as to Parker's control of the venture, the Lease Agreement expressly

limited the use of the foundry and specifically stated that "[t]he Premises shall be used and

occupied only as an aluminum and magnesium foundry" and any changes would require Parker's

written consent. (Id.).

Despite being dated June 30, 2004, the limited warranted deed was not executed until

July 29, 2005, over a year later. (R.33- Ex. 7). More importantly, the limited warranty deed was

not recorded until June 15, 2007, nearly three years after the transfer. On August 1, 2006, the

day of the explosion, there was a question of fact as to who "owned" the foundry. A deed must

be deiiverea to be operative as a transfer of ownersirip of land, for delivery gives the instrument

force and effect. Kniebbe v. Wade (1954), 164 Ohio St. 294, 297. Recording a new deed

perfects delivery. Romaniw Budas v. Polowyk (Aug. 10, 2000), 8th Dist No. 75980, 2000 Ohio

App. LEXIS 3613. Because the limited warranty deed was recorded after the August 1, 2006

foundry explosion resulting in injuries to Jason Meadows, Parker still legally owned the foundry.

49

Based upon the overwhelming evidence, when construing the evidence and all reasonable

inferences drawn there from in a light most favorable to Plaintiffs, it is clear there are multiple

genuine issues of material fact as to Parker's negligence flowing from its active participation in

the foundry subsequent to the transfer and whether Parker and ACW created a joint venture

relationship subjecting each party to joint and several liability. Therefore, the trial court below

erred when it granted Appellee Parker's Motion for Suminary Judgment as reasonable minds can

come to different conclusions surrounding Parker's liability.

CONCLUSION

For the reasons stated herein, Plaintiffs-Appellants Jason Meadows and Laurie Meadows,

respectfully request this Honorable Court to reverse the judgments granting Defendant-Appellee

Air Craft Wheels, LLC's Motion for Summary Judgment and Defendant-Appellee Parker

Hannifm Corporation's Motion for Summary Judgment and remand this case for resolution on

the merits as there are multiple genuine issues of material fact.


CHARLES V. LONGO CO., L.P.A.

,RZES V. Ic9KGO (0029490)MA THEW D. GREENWELL (0077883)25550 Chagrin Blvd., Suite 320Beachwood, Ohio 44122216-514-1919216-593-0914 (facsimile)cvlon¢o(a cvloneolaw.commatt,cvlongolaw.comCounsel for Plaintiffs-AppellantsJason Meadows & Laurie Meadows

50

CERTIFICATE OF SERVICE

A true copy of the foregoing Brief of Appellants has been mailed by regular U.S. Mail on

this 7th day of July, 2011, as follows:

Marc W. Groedel, Esq. Counsel for Defendant-AppelleeBrian T. Gannon, Esq. Air Craft Wheels, LLCReminger Co., LPA1400 Midland Building101 Prospect Avenue WestCleveland, Ohio 44115

John R. Mitchell, Esq. Counselfor Defendant-AppelleeJoshua Adam Klarfeld, Esq. Parker Hannifin Corp.Thompson Hine LLP127 Public Square Suite 3900Cleveland, Ohio 44114

Scott King, Esq.Thompson Hine, LLP2000 Courthouse Plaza, N.E.10 W. Second StreetDayton, Ohio 45402

Counsel for Defendant-AppelleeParker Hannifin Corp.

MATT EW D. GREENWELL (0077883)CIIARL^V. LI&60-(0029490)

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APPENDIX

TRIAL COURT ORDER(S)

Judgment Entry of the Trial Court granting Defendant-Appellee Parker HannifinCorporation's Motion for Summary Judgment on the 13th day of October, 2010 ..................... A-1

Judgment Entry of the Trial Court granting Defendant-Appellee Air Craft Wheel,LLC's Motion for Summary Judgment on the 13th day of April, 2011 ..................................... A-2

Memorandum of Opinion and Order of the Trial Court granting Defendant-Appellee Air Craft Wheel, LLC's Motion for Summary Judgment on the 13th dayof April, 2011 ................ :............................................................................................................. A-3

UNREPORTED CASES

Brown v. Packaging Corp. ofAmerica (8th Dist. 2001),2001 Ohio App. LEXIS 82 ......................................................................................................... A-4

Romaniw Budas v. Polowyk (Aug. 10, 2000), 8th Dist No. 75980,2000 Ohio App. LEXIS 3613 ..................................................................................................... A-5

Brookwood Inn, Inc. v. City of Brook Park (June 1, 2000),8th Dist. No. 76200, 2000 Ohio App. LEXIS 2337 .................................................................... A-6

Sanfrey v. USM Corp. (Dec. 17, 1990), 12th Dist. No. CA90-02-003,1990 Ohio App. LEXIS 5607 ..................................................................................................... A-7

52

65473714

IN THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

JASON MEADOWS, ET AL I Case No: CV-10-721595Plaintiff

Judge: STUART A FRIEDMAN

AIR CRAFT WFIEELS, LLC, ET ALDefendaut

JOURNAL ENTRY

A REVIEW OF THE BRIEFS AND SUPPORTING EVIDENCE ESTABLISHES THAT THERE EXIST NO GENUINE ISSUESOF MATERIAL FACT AND THEREFORE DEFENDANT PARKER HANNIFIN IS ENTITLED TO JUDGMENT AS A MATTEROF LAW. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (FILED 06/18/20 10) IS GRANTED. PARTIAL.

Judge Signature

10/13/2010RECEIVED FOR FILING

10/13/2010 16:11:39By; CLPAL

GERALD E. FUERST, CLERK

EXHIBIT

10/13/2010

Page 1 of 1

Matthew Greenwell

From: [email protected]: Thursday, April 14, 2011 11:30 AMTo: [email protected]: Cuyahoga County Clerk of Courts Notification [CV-10-721595]

This is an automated notification. Please DO NOT REPLY to this E-Mail.This E-Mail message, including any attachments, is for the sole use of the intended recipient(s) and may containprivate, confidential and/or privileged information. Any unauthorized review, use, disclosure or distribution isprohibited. If you are not the intended recipient, please destroyall copies of this original E-Mail message.

Case: CV-10-721595Case Caption: JASON MEADOWS, ET AL vs. AIR CRAFT WHEELS, LLC, ET ALJudge: STUART A FRIEDMANRoom: 19B JUSTICE CENTERDocket Date: 04/13/2011Notice Type: (JEPq JOURNAL ENTRY NOTICE Notice ID/Batch: 17343834 - 917749

To: MATI'I3EW D. GREENWELL

DEFENDANT AIR CRAFT WHEELS, LLC'S MOTION FOR SUMMARY JUDGMENT (FILED 01/28/2011)IS GRANTED. OSJ.

CLDLJ 04/13/2011NOTiCE ISSUED

On Copy:BRIAN T GANNON (D1A) - BGANNON@REMINGERCOMJOSHUA ADAM KLARFELD (P2A) - [email protected] W GROEDEL (D1A) - MGROEDEL@REMiNGERCOMSCOTT A KING (D2A) - SCOT'T'[email protected] V LONGO (P1A) - [email protected] H MISCHKA (D4A) - (2ISCHKA@ULMERCOMCASH HMISCHKA (D4A) - TDEKA@ULMERCOMRICHARD CORDRAY OHIO ATTORNEY GENERAL (D5) - STATE OFFICE TOWER 30 E BROADSTREET 17THFLOOR, COLUMBUS, OH432150000J Oi 1 l Dvn i iniZOUGH i`v' ivFuviL iTU'IViiIIO W'iv ^io) -JOHN DOE CORP V THROUGH VII (D7) -

EXHIBIT

# A•a

THE COURT OF COMMON PLEASCUYAHOGA COUNTY, OHIO

JASON MEADOWS, et al.Plaintiffs,

vs.

CASE NO. CV 10 721595

MEMORANDUM OF OPINIONAND ORDER

AIRCRAFT WHEELS, L.L.C., et al.Defendants.

FRIEDMAN, J.:

{11.} This matter is before the Court upon the Motion for Summary Judgment

filed by Defendant Aircraft Wheels, L.L.C., (ACW). The Court has reviewed

ACW's Motion for Summary Judgment, Plaintiff's Brief in Opposition,

Defendant's Reply, and Exhibits offered by both parties. For the reasons

discussed below, the Court grants the Defendant's Motion.

Back ound

{¶2.} Most of the facts surrounding Meadows's claim are undisputed. ACW is

a magnesium and aluminum sand casting foundry. ACW purchased the

foundry in 2004 from Parker Hannifin (Parker). At the time ACW took

ownership of the foundry, many of Parker's former workers accepted jobs with

ACW and continued to work in the foundry. ACW maintained many of Parker's

policies, with only minor changes in the melting process and no changes to the

procedure for charging the magnesium pot. Meadozvs Depo., p. 109.

{1^13.} Jason ivieadows woriced in the magnesium foundry unaer Parker from

October 1998 until August 2002. Meadozvs Depo., p. 33, 98-99. During that time,

he performed a variety of jobs, including furnace operator. Meadows Depo., p. 33,

52. From August 2000 until August 2002, Meadows permanently worked as a

furnace operator. Meadozvs Depo., p. 51-52.

EXHIBIT

{¶4.} In June 2004, Meadows returned to work as a furnace operator at the

foundry after it was purchased by ACW. He worked there until November 2004,

when he was called to active duty in the Marine Corps. He returned to the

foundry in January 2006, following his service. At that time, he was designated

as a"floater;' and performed a variety of jobs.

{¶5.} Both parties agree that ACW did not train Meadows as a furnace operator.

The parties disagree as to whether Meadows was formally trained as a furnace

operator by Parker. Robert Hardman and Leon Krupp, two employees of Parker,

testify that Meadows was trained to preheat the magnesium ingots by placing

them on top of the fuxnace before inserting them into the furnace. See Robert

Hardman Depo., p. 22, 29; Leon Krupp Depo., p. 50-51. Meadows acknowledges

that he received on-the-job training, but testifies that he was never instructed to

preheat the ingots before melting them. Meadozos Depo., p. 89, 199, 259.

{¶6.} Motions for Summary Judgment require the Court to construe all

evidence in favor of nonmoving party. Civ.R. 56(C). However, the totality of

that evidence supports the Defendant's position. By his own admission, Plaintiff

had safely inserted magnesium ingots into a furnace "thousands" of times prior

to the accident, was aware of the dangers of heated magnesium, and knew to

take precautions to ensure the magnesium ingots were ary before they were

inserted into the furnace. Meadows Depo., p. 174-175, 177-178, 223-224. There is

no genuine issue of material fact as to Meadows's experience as a furnace

operator and knowledge of the dangers associated with melting magnesium.

{117,} On the morning of August 1, 2006, Meadows was assigned to the melt

deck. Meadows Depo., p. 126. There, he was responsible for inserting magnesium

ingots into the furnace, melting and pouring the magnesium into molds.

Meadows Depo., p. 131-132. Meadows placed two ingots into the furnace, which

then exploded suddenly and without warning. Meadozvs Depo., p. 131-132,177-

178. It is undisputed that the explosion was due to moisture on the magnesium

ingots at the time Meadows placed them into the furnace. Meadows was not

2

wearing a face mask or protective equipment at the time. Molten magnesium

exploded onto his face and body, causing severe second and third degree burns,

and leaving him partially blind and totally disabled.

{¶8.} Plaintiffs set forth several claims in their original complaint, but they have

abandoned all theories of ACW's liability except for Count 1, which alleges that

ACW "deliberately misrepresented a toxic or hazardous substance," actionable

pursuant to R.C. 2745.01(C).

Employer Liability for Intentional Torts Under R.C. 2745.01

{¶9.} Under R.C. § 2745.01, an employee may recover for an employer's

intentional tort only upon proof that the employer committed the tort with intent

to injure or with the belief that injury was substantially certain to occur. R.C. §

2745.01 (A). "Substantial certainty" is limited to an employer acting with

deliberate intent to cause an employee to suffer an injury. R.C. § 2745.01(B).

{¶10.} A limited exception to this standard applies when the employee can show

that the employer deliberately removed safety equipment or deliberately

misrepresented a toxic or hazardous substance and an injury occurred as a direct

result. R.C. § 2745.01(C). Specifically, R.C. § 2745.01(C) states:

Deliberate removal by an employer of an equipment safety g.:ardor deliberate misrepresentation of a toxic or hazardous substancecreates a rebuttable presumption that the removal or

misrepresentation was committed with intent to injure another if aninjury or an occupational disease or condition occurs as a directresult.

ln Kan^insici v. Metal 'v"vzre Products, the Ohio Supreme Court upheld the

constitutionality of R.C. § 2745.01, but did not specifically address subsection (C).

Kaminski v. Metal Wire Products,125 Ohio St.3d 250, 2010-Ohio-1027, at ¶104.

3

Deliberate Removal of Safety Equipment

{111.} Meadows asserts that ACW failed to require use of personal protective

equipment, but never specifically alleges that ACW deliberately removed protective

equipment. In his deposition testimony, Meadows specifically addresses the

availability of safety equipment, including safety jackets, chaps, safety glasses,

and face masks. Meadows Depo., p. 110-112. When asked why he decided not to

wear the equipment, Meadows states: "Been working there for so many years,

didri t see the reason to wear it." Meadows Depo., p. 114. Therefore, because

Meadows acknowledges that ACW never intentionally removed any safety

equipment, the "deliberate removal" prong of R.C. § 2745.01(C) fails as a matter

of law.

Deliberate Misrepresentation of Hazardous Substance

{¶12.} In order for Meadows's claim to fit under the "deliberate

misrepresentation of a toxic or hazardous substance" prong of R.C. § 2745.01(C),

ACW must have knowingly misrepresented the safety of a toxic or hazardous

substance, not merely the safety of the company's procedures. In his complaint

and subsequent filings, Meadows never alleges or implies that ACW

misrepresented magnesium as a nonhazardous substance. Instead, he alleges

that ACW made deliberate misrepresentations to its employees that its

procedures for storing, handling, melting, and pouring magnesium were safe.

Brief in Opp. to Def. Motion for Summary Judgnient.

{¶13.} Meadows's allegation is supported only by a single statement by Michael

Sparrow, the plant safety manager at the time of the accident. Mr. Sparrow

testified that ACW made representations to its employees that the established

procedures for pre-heating the magnesium were safe. Sparrow Depo., p. 50. For

the purposes of this motion and construing the evidence in Meadows's favor, the

Court finds that reasonable minds could conclude that ACW did assert to its

employees that its procedures were safe.

4

{¶14.} It is worth noting that even if deliberate misrepresentation of procedures

were part of the statute (which they clearly are not) Meadows fails to provide

any evidence either that he was following company procedures when he

neglected to preheat the magnesium ingot before placing it in the furnace, or that

company procedures mandated that he forgo use of the provided safety

equipment.

{¶15.} R.C. § 2745.01(C) provides that "deliberate misrepresentation of a toxic or

hazardous substance" is required to create a rebuttable presumption of intent to

injure. "Deliberate misrepresentation" has been limited to a situation where an

employer misrepresented the nature of a substance, not the safety of the

procedure for handling a substance. See Sanfrey v. USM Corp. (December 17,

1990), 12th Dist. No. 90-02-003. (Reversed on other grounds by Brady v. Safety-

Kleen Corp. (1991), 61 Ohio St.3d 624.).

{¶16.} In the case at bar, Meadows knew that molten magnesium was dangerous,

and understood the nature of the dangers associated with the molten

magnesium, including the risks associated with moisture contact; however, he

never alleged that ACW misrepresented magnesium as anything other than a

hazardous substance. Meadozus Depo., p. 85, 91, 223-224. Meadows

acknowledges that "it is undisputed that magnesium is a hazardous substance."

Brief in Opp to Def. Motion for Summary Judgznent. .

Conclusion

{¶17.} The Court finds that Plaintiff's accident was not the result of Defendant's

misrepresentation of a toxic of hazardous substance pursuant to R.C.

§2745.01(C), but was the unfortunate result of his own decision to forgo the use

of available safety equipment, combined with the potentially explosive mixture

of molten magnesium and moisture, a danger of which he was well aware. The

Plaintiffs apparently ask this court to accept a claim of deliberate

misrepresentation of safety procedures in order to establish the deliberate

5

misrepresentation prong of R.C. 2745.01(C). This Court declines to extend the

definition of "deliberate misrepresentation of a toxic or hazardous substance"

beyond the plain meaning of the phrase.

{¶17.} The Court, having considered all the evidence and having construed the

evidence most strongly in favor of Plaintiffs, determines that reasonable minds

can come to but one conclusion, that there are no genuine issues of material fact,

and that Defendant is entitled to judgment as a matter of law. Accordingly,

Defendant's Motion for Summary Judgment is granted.

IT IS SO ORDERED.

RECEIVED FOR FILING

APR 1 3 2011

GE ^ ST, CLERKgy, . . Depttty

Dated: r9j°I.t-4 tz> 7-011

Judge Stuart A. Friedman

SERVICE

Copies of th e foregoing rinemorandum of Opinion and Order were sen*, via

U.S. Mail to all counsel of record this date:

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