Kunkler v. Goodyear Tire & Rubber Co.

Holmes, J.,

dissenting. The position adopted by the majority does not seem tenable in the context of the affidavits and depositions presented in this Civ. R. 56 summary judgment case. Moreover, there is little doubt that the majority has mistakenly analyzed the materials here presented. Under no rational legal theory have appellees demonstrated a genuine issue as to the existence of an intentional tort. Therefore, I respectfully dissent.

The ultimate question presented is whether appellees have sufficiently demonstrated that appellant intentionally caused an explosion to occur or knew to a substantial certainty that such explosion would occur and injure appellees. Upon this point, there are several factual matters which are en*143tirely misstated and are thus unsupportable.

Appellees asserted at the motion for summary judgment that: “Dicumyl peroxide [‘Dicup’] is the chemical that was in the material that exploded, and caught fire * * Upon appeal, appellees, along with the majority supra, concluded that the injuries were the “result of an explosion * * * [the cause of which] was the combination of dicumyl peroxide and carbon disulfide in the batch of ingredients being mixed and heated in a machine known as Ban-bury No. 4.” Initially, it must be pointed out that appellees failed to produce any evidence to substantiate their theory of the explosion. In fact, their very contentions are refuted by their own expert, who provided the only evidence upon this issue.

It was the expert’s view that the presence of Dicup alone would, at most, result in a rapid temperature increase, referred to as a thermal decomposition, and a possible fire, but not an explosion. Deposition of John C. McCool, at page 44, line 5; page 45, lines 9 through 12; page 46, lines 14 through 18; page 48, lines 13 through 15; page 79; page 88, lines 19 through 21. Furthermore, he expressly rejected any suggestion that he give an opinion which asserted that Dicup possessed volatility, restricting his analysis to its thermal decomposition properties. Id. at page 93. Finally, by his affidavit, sworn to and subscribed upon the very date of trial, he thoroughly retreated from the conclusion advanced by appellees and adopted in the majority opinion. He instead averred that: “[D]icumyl peroxide present in the material being mixed at the time of the explosion and fire is recognized and known among compounders in the rubber industry as being substantially certain to decompose and, in a mixture with other combustible materials, to result in a fire * * *. ” (Emphasis added.)

Regarding the additional accelerant, carbon disulfide, the expert opined as follows:

“Q. But is it not also your opinion that irrespective of whether the carbon disulphide [sic] was in there, that the Dicup in and of itself would have resulted in a fire and explosion?
“A. Certainly a fire, yes.
“Q. Would the carbon disulphide [sic], assuming there were sufficient quantities, be more predictive of a fire or explosion or both?
“A. I can only guess that it would increase the likelihood of afire.
“Q. And the carbon disulphide [sic] would have no relationship to there being an explosion?
“A. In the amounts that would be present, that’s right. I would not expect to have a considerable quantity of carbon disulphide [sic] in that Ban-bury.”6 (Emphasis added.) Id. at page 46, line 14 through page 47, line 3.

Since it was the explosion which principally created the injuries at issue, appellees were required at the least to present an explanation of its cause. By failing to produce a credible *144explanation — appellees’ expert refuting the explanation offered — appellees have omitted a necessary-precondition for demonstrating intent. They have failed to specify an act of appellant, intentional or otherwise, which brought about the explosion and appellees’ injuries.

Also, the power of the affidavit of witness George Tucker to create an issue of fact is entirely misrepresented.7 This affidavit, sworn to and subscribed the day of trial, asserted that while running batches of No. 33377, the affiant had observed three explosions “of the material inside the Banbury,” and had reported each of these to supervisor Strayhand, who he avers told him to “run the thing anyway.” This is asserted to imply that appellant had knowledge of the propensity of the material compounded to explode, that these explosions were of the same kind as that which injured appellees and, therefore, that appellant knew, to a substantial certainty, that appellees would be injured. That supervisor Strayhand directly contravenes such statements is said to merely create an issue to b'e resolved by the trier of fact.8 As shall be observed, the uncontroverted facts in the other materials before the court rendered Tucker’s statements ludicrous and, at best, irrelevant.

Initially, it should be pointed out that there was no reference to any physical evidence that such other explosions occurred in any deposition or affidavit submitted to the court. On the face of Tucker’s affidavit, it is clear that he could not have intended the term “explosion” to include an explosion of the magnitude of the one at issue. After all, he mentioned no harm to himself or others, or any physical damage to the Banbury or the surrounding materials. In fact, it is directly inferable from the face of the affidavit, even in a light most favorable to appellees, that no such damage or injuries were present. Tucker avers that he reported the incidents, which indicates that there were no hindering injuries or general pandemonium comparable to that which resulted from the explosion at issue. That the supervisor ordered Tucker to continue the production indicates that the supervisor observed no evidence of an “explosion” which would require that the Banbury be shut down. In light of the physical processes alone, which would require a cleanup of an exploded batch in order to avoid polluting subsequent batches, it is untenable to suggest that the alleged “explosions” of the material inside the Banbury were of sufficient magnitude as to warrant notice of a dangerous compound to the employer. See, e.g., deposition of James Sesic, at page 13 (debris around *145the Banbury); page 22 (residue inside the Banbury); plaintiffs’ exhibit 4/Sesic (property damage report); plaintiffs’ exhibit 3/Sesic (personal injury report); plaintiffs’ exhibit 5/Sesic (security police irregularities report).

The fact that three such “explosions” occurred without any demonstrable harm to Tucker, the machine, or the surrounding materials, at the very least indicates that nothing remotely approaching the kind of explosion at issue ever occurred in Tucker’s presence. Therefore, his affidavit cannot be taken as a basis for inferring that explosions of this kind had ever occurred before or, inferably, that the company had knowledge that Stock No. 33377 possessed a propensity for dangerous explosions.9

Also, the deposition testimony of Kunkler and Carr, both of whom had been working in the area over an extended period of years, asserted that while they had heard of occasional fires, they had never observed or even heard of an explosion occurring in a Banbury. Carr testified as follows:

“Q. Had there been fires in the Banbury before?
“A. Not since I have been working on it.
“Q. Were there ever fires in the Banburys in the ten years you were the utility man?
“A. I hadn’t seen any.
“Q. So to your knowledge, at least for the previous ten years, there had been no fires in any of the five Banburys?
“A. I can’t recall any.
“Q. Had there been any explosions in any of the five Banburys during the ten and a half years you were around there?
“A. No.
“Q. * * * At least for ten years before that you never heard of that happening before?
“A. I haven’t, no.
“Q. Do you know whether somebody else had?
“A. Not that I know of.” Deposition of Carr, at pages 21-22. See, also, the deposition fo Kunkler, at page 40, lines 16 through 25.

The deposition of Kunkler is in agreement on this point, except only that he had heard of an occasional fire occurring in a Banbury, usually as a result of a faulty thermocouple (thermometer). Such observations of the parties supplement those inferences derived from the deposition of Tucker, i.e., that no harmful explosions had actually occurred prior to the one at issue.

Furthermore, the remaining facts and testimony easily demonstrate, without contradiction, that the explosion was accidental. As noticed by appellees’ own expert, described by Kunkler and Carr, and generally established as a factual occurrence, appellees had only just completed the successful processing of material bearing the same batch designation, i.e., No. 33377, as that which was in Banbury No. 4 when the explosion occurred. Appellees have asserted, and it seems reasonable to accept as true, that “[t]hrough its exacting and scrupulous control,” appellant insured that every batch of compounds conformed to “the *146formula for the chemicals to be used [which] was placed on a written card bearing a number identifying the particular stock.”

It can only be concluded that since both batches bore the number 33377, they were identically prepared, or at least intended to be identically prepared. The first batch was processed without incident and was forwarded to the mill floor for completion of the process.10 The unavoidable inference is that whatever caused the explosion, whether related to a reaction with Dicup or not, was not present in the first batch. This° would appear to create a strong factual basis for the view that the explosion did not result from a calculated formula, but from an accidental combination of factors.

Also, appellees’ expert testified repeatedly in his deposition that the materials erroneously asserted by appellees to be explosive could only have been added accidentally to the compounds. Deposition of McCool, at page 33; page 50; page 58; page 69. He further testified that the Banbury is a safe piece of equipment and that the mixing process is not a dangerous process. Id. at pages 60-63. In order to better explain his views, the process engaged in by the parties must be briefly set forth.

Appellees were engaged in creation of a “non-production run” which means simply that the rubber compound created was not to be a finished product but was to be moved down onto the mill room floor where the process could be completed. More particularly, the purpose of the non-production run was to combine the various rubber compounds with the added filler materials which imbue various qualities. The final process is initiated by adding other compounds which cause a controlled “thermal decomposition” and ultimately vulcanization of the material into the desired quality and form, in this case racing tires. It is imperative that, in the non-production stage, the material must be evenly heated for a relatively long period of time to ensure that all the materials evenly mix. Id. at pages 37-38.

The materials added at the production stage for vulcanization and which induce thermal decomposition are various oxides and sulphurs. Apparently, dicumyl peroxide and carbon disulfide are examples of such vulcanizing agents. See id. at pages 37-38; cf. page 42. (It is so described on page 76, lines 19 through 20.) In fact, McCool (and one of Goodyear’s analytical, chemists investigating the explosion) stated that normal non-production batches do not “have any ingredients in it that I can visualize causing a problem,” McCool deposition, at page 47, and that one would not expect carbon disulfide to be present therein. Deposition of Siddharth Patel, at page 26; plaintiffs’ exhibit 7. It is for this reason that McCool agreed that one would “literally have to be out of * * * [his] mind to want to put those [vulcanizing agents] into a non-productive [sic] batch * * and that “Goodyear * * * would not want those in a non-productive [sic] batch * * *.” Id. at page 38.

Clearly, this expert, a former employee of B. F. Goodrich, reasonably concluded that the manufacturer would not intentionally or even knowingly include the vulcanizing agents in *147a non-production run because to do so would ruin the compound by premature vulcanization. This conclusion is further supported by the list of ingredients for Stock No. 33377 furnished to appellees approximately nine months prior to the hearing and which the expert had while formulating his opinions. No vulcanizing agents were included in this list.

Having considered the factual misreadings inherent within the majority opinion, particularly that involving reliance upon Tucker’s affidavit, it remains to explain how the majority opinion, while correctly quoting the applicable law, failed to properly apply it. In the companion case of Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100, 522 N.E. 2d 489, we stated that in order to prove an intentional tort under Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046, the employer must have had, inter alia, “(1) knowledge * * * of the existence of a dangerous process, procedure, instrumentality or condition within its business operation; [and] (2) knowledge * * * that if the employee is subjected by his employment to such * * * condition, then harm to the employee will be a substantial certainty and not just a high risk * * *.” (Emphasis added.) Id. at paragraph five of the syllabus.

We are aware that when considering a motion for summary judgment, the inferences to be drawn from the underlying facts contained in the record, and- indeed the record itself, must be viewed in a light most favorable to the party opposing the motion. See Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 4 O.O. 3d 466, 364 N.E. 2d 267. “It is axiomatic that a motion for summary judgment shall only be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” (Emphasis added.) Wills v. Frank Hoover Supply (1986), 26 Ohio St. 3d 186, 188, 26 OBR 160, 161, 497 N.E. 2d 1118, 1120; see, also, Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 30 OBR 78, 506 N.E. 2d 212. We are also aware that the evidence on summary judgment may not be weighed by the court, but neither may it be ignored. “[I]f the defendants on the motion succeeded in proving that the plaintiff would not have enough evidence to go to the jury on the issue, the [summary] judgment was right.” Dyer v. MacDougall (C.A. 2, 1952), 201 F. 2d 265, 268 (opinion per L. Hand, J.). A thorough review of the pleadings, affidavits, depositions and other evidence in the record sub judice, even in the light most favorable to appellees, discloses that they failed, solely by the Tuckér affidavit, to set forth specific facts pointing to a genuine issue of whether Goodyear committed an intentional tort against them.

The most that can be derived from the affidavit at issue is that the employer had been made aware that some batches of No. 33377 were creating non-harmful, non-damaging “explosion[s].” These may have varied in intensity from a loud exhalation of air to a noise level associated with a firecracker, but the affidavit does not so specify. Instead, as was pointed out previously, the very fact that Tucker, and only Tucker, reported these alleged “explosion[s]” demonstrates that he was not harmed by them, and that no one else took any notice of them. It was demonstrable, as a near certainty, from all of appellees’ own witnesses that no dangerous explosion of any kind had occurred during the prior processing of Stock No. 33377. It was further established by appellees’ own expert that the company would *148not have wanted to include any of the chemicals mistakenly alleged to have exploded in the compounds because they are only utilized during the final vulcanizing process.

We therefore are confronted with a situation where none of the alleged prior events would have informed the employer that processing batches of No. 33377 was dangerous to employees for whatever reason, and where the employer would have every economic incentive not to include the chemicals mistakenly assumed to have caused the explosion. There is no rational view which, under these circumstances, would charge the employer with “knowledge * * * of the existence of a dangerous process * * * or condition.”

Also, we made it clear in Van Fossen that the employer must know to a “substantial certainty” that harm will result to the employee subjected to the dangerous condition. Relying upon Prosser, as the majority also does here, we therein observed that “the mere knowledge and appreciation of a risk” falls short of the “substantial certainty” standard. Id. at paragraph six of the syllabus. Accordingly, the analysis appears to require that two issues be considered: (1) what degree of threat of harm existed, and (2) what was the knowledge and appreciation of that threat of harm.

As previously mentioned, the harm threatened could not have been more than that experienced by affiant Tucker, who apparently was not injured at all. Accordingly, there was no threat of harm, but at best an incalculably small risk of harm. Such a small risk of harm would ordinarily not even support a claim for negligence under the facts of this case. It could, therefore, hardly support a claim that the employer knew “to a substantial certainty” that harm would result. In fact, there was not even such a threat as would ordinarily cause one to be alarmed. Consequently, the facts of this case fall far short of the standards established in Van Fossen, derived as they are from the Restatement of Torts 2d, and Prosser & Keeton on Torts.

In conclusion, the very best example of the faulty logic underpinning appellees’ intentional tort claims is exemplified by the deposition testimony of Kunkler. He was convinced that because the explosion occurred, someone was at fault. However, he, like the majority here, cannot point to a single individual who, or instance of conduct which, would indicate the presence of an intent as we have defined it in Van Fossen. He stated as follows:

“Q. Prior to the date of your accident, did you consider your job a job where you were risking your personal well-being?
“A. No, sir.
“Q. Did you ever express to any of your superiors that you thought you were being asked to do a risky task or a risky job?
“A. No, sir.
“Q. Prior to the date of your accident, did you think, in your position as a Banbury operator, that there was a risk of your being injured?
“A. No, sir.
* *
“Q. Do you believe that employees of Goodyear failed to properly maintain Banbury No. 4?
“A. Yes, sir.
“Q. In what way?
“A. Something malfunctioned and they weren’t aware of it, sir. * *
“Q. Other than the fact that this fire, and explosion occurred, is there any other fact that you have that supports your belief that this machine was not properly maintained?
“A. The hardest thing in the *149world to get done at Goodyear is to get something fixed, sir.
“Q. Irrespective of your opinion, which is a broad statement, I asked a little narrower question. On this occasion, with Banbury No. 4, other than the fact that there was a fire, what else leads you to the conclusion that Ban-bury No. 4 was not properly maintained?
“A. Just the fact that most of the time, when you ask to get something fixed, it may take two or three months to get it fixed, sir.
“Q. Was there something on Banbury [No.] 4 that needed [to be] fixed?
“A. Not to my knowledge, sir.” Deposition of Kunkler, at pages 48, 54 and 55-56.

For all the foregoing reasons, I hereby dissent.

Moyer, C.J., and Locher, J., concur in the foregoing dissenting opinion.

In the expert’s sole foray into an expression of potential causes of the explosion at issue, he asserted that when appellee Kunkler opened the ram lid (to add oil) there may have occurred a sudden outrush of unmixed, extremely fine, black soot additives which may have created the conditions for an explosion. Id. at pages 39-42. This material is, of course, a common component to any number of rubber compounds, see, e.g., deposition of Carr, at page 25, and mixes quite slowly with the rubber compound. However, the expert refused to give an opinion that the dust did rise to the top of the mix or did actually cause the explosion. Deposition of McCool, at page 44.

The affidavit states, in its entirety, as follows:

“GEORGE TUCKER, being first duly sworn according to law deposes and says that he is aware of the fire and explosion which occurred on March 25, 1982, while Plaintiffs were operating Banbury No. 4; that on three occasions prior thereto, one as late as the day before the fire and explosion, Affiant while mixing stock no. 33377 in Banbury No. 4 had experienced an explosion of the material inside the Banbury, and that on each of these occasions he reported the explosion to Defendant’s supervisor, JAMES STRAYHAND, who told Affiant to ‘run the thing anyway.’ ”

Strayhand, in his deposition, at page 38, stated that whenever he was told of a problem with any of the Banburys, his practice was to shut them down. This was corroborated by appellee Kunkler, who stated that the practice of the supervisors on being informed of a malfunction in a Banbury was to either fix it or let it stand idle until fixed. Kunkler deposition, at page 53.

Goodyear’s lack of knowledge was evidenced in part by a report dated the day of the explosion, prepared by a Goodyear security officer. PI. Ex. 6. It stated, in part: “No one I spoke to could come up with a positive explanation why it happened for sure. * * * I learned that fires have occurred during this mixing process before — although I was told they are not that common — but nothing of the dimension and intensity which occurred in this incident.”

An analytical analysis of the Stock No. 33377 batch which was being processed just prior to the explosion disclosed no evidence of any accelerant or dicumyl peroxide in the finished stock. Only the expected hydrocarbons were present. PI. Ex. 7. Sesic, the Goodyear employee who conducted the analysis, confirmed this conclusion in his deposition. Sesic deposition, at page 27.