Norman Rudisill v. Ford Motor Company

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0061p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiffs-Appellants, -
NORMAN RUDISILL and KAREN RUDISILL,
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No. 12-3486
v.
,
>
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Defendant-Appellee. -
FORD MOTOR COMPANY,
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:08-cv-02409—Sara E. Lioi, District Judge.
Argued: January 23, 2013
Decided and Filed: March 11, 2013
Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.

_________________

COUNSEL
ARGUED: Christopher Holecek, WEGMAN, HESSLER & VANDERBURG,
Cleveland, Ohio, for Appellants. Paul D. Hudson, MILLER CANFIELD PADDOCK
AND STONE, PLC, Kalamazoo, Michigan, for Appellee. ON BRIEF: Christopher
Holecek, Angela M. Lavin, WEGMAN, HESSLER & VANDERBURG, Cleveland,
Ohio, for Appellants. Kip T. Bollin, Elizabeth B. Wright, Barbara A. Lum,
THOMPSON HINE LLP, Cleveland, Ohio, for Appellee.
_________________

OPINION
_________________

RONALD LEE GILMAN, Circuit Judge. After receiving workers’
compensation benefits for serious injuries sustained while working at Ford Motor
Company’s Cleveland Casting Plant (the Plant) in Brook Park, Ohio, Norman Rudisill
sued Ford for committing an intentional tort against him. His wife, Karen Rudisill,
asserted a derivative claim of loss of consortium in the same complaint. The district

1
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 2

court granted summary judgment for Ford, holding that Rudisill had not presented
sufficient evidence to create a genuine dispute of material fact as to whether Ford
deliberately intended to injure him. For the reasons set forth below, we AFFIRM the
judgment of the district court.

I. BACKGROUND

A. The incident

The facts surrounding Rudisill’s employment at Ford and the incident that gave
rise to this action are not in dispute. Rudisill began working for Ford in 1994 as a
general laborer. He rose through the ranks to become a Team Leader by the time of the
events at issue in this case. The position of Team Leader is, according to Rudisill, “one
step below management.” As a Team Leader, Rudisill was responsible for ensuring the
continued operation of Mold Line 2 at the Plant.

Mold Line 2 is one of three mold lines where engine blocks are cast in molten
metal. The mold-line process is described in detail by the district court as follows:

The mold line process employs a system of hooks, pulleys and rails
suspended over an open pit. Along the rail system runs a chain of flat
iron carts called “cartops.” On top of each cartop sits a heavy iron
crate-like fixture called a “drag flask.”
The cartops and drag flasks cycle around the mold line together. At the
beginning of the mold line, the drag flask is filled with compacted sand
that is pressed in the shape of an engine block. This forms the bottom
half of the mold for the engine block. An “engine core,” which contains
the internal components of the engine block, is placed onto the molded
sand and is covered by a “cope flask.” The cope flask is the top half of
the mold for the engine block. Through an automated process, molten
iron is poured into the mold (i.e. between the drag flask and cope flask).
The molten iron surrounds the engine core and hardens into the engine
block. Once the engine block is formed, it is removed at a section of the
mold line called the “hooking station.” A chain hooked to an overhead
conveyor system is attached to the engine block and lifts it off the drag
flask, carrying the engine block away from the mold line. The drag flask
remains on the cartop and circles back to the beginning of the mold line
to be used to make another engine block.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 3

Occasionally, iron runs out of the drag flask on to the cartop. This
over-pour of molten steel is referred to as a “hot-head.” At one of the
final stops along the mold line, an employee known as the “rake-off
man” uses a long metal pole to remove hot-heads and sand from the top
of the drag flask, scraping them into a conveyor system running in the
subfloor five feet below the mold line. The conveyor system collects the
semi-molten hot-heads and hot sand into a “shaker pan.” The shaker pan
system carries these materials to another part of the plant for disposal.
This final process of separating the engine block from the drag flask,
raking hot sand and semi-molten hot-heads off the drag flask into the
shaker pan system, preparing the drag flask for another round of molding,
occurs at the “pick-off station.” The pick-off station is where the
rake-off man works. This is the location where Mr. Rudisill’s accident
occurred.
Sometimes, during the process of pouring the molten metal into the mold,
some molten metal spills out (a “run-out”) and cools onto the rim of the
drag flask before it reaches the rake-off station. These run-outs must be
removed from the drag flask before it can be used again for another
engine mold. To make this repair, the mold line is shut down and the
drag flask is pulled off the line by an overhead crane and hoist. Mr.
Rudisill testified that this is a routine process which he [had] performed
hundreds of times.
In order to remove the drag flask from the mold line, employees first
have to remove two sections of removable wall (“guard rails”) from the
outer edge of the mold line. This exposes the pit containing the sub-floor
conveyor system and shaker pan with semi-molten materials being
carried away for disposal. At the time of Mr. Rudisill’s accident, the
guard rails constituted the only barrier between the employees at the
pick-off station and the open pit beneath the mold line. This pit measures
28 inches by 68 inches with a depth of 59 inches.
Once the guard rails are removed, a hoist is attached to the drag flask to
lift it off the cartop. To do this, employees stand near the edge of the pit
and secure the hoist clamps to the drag flask. The clamp that is attached
to the far side of the drag flask has to be slung over the drag flask and
then pulled taut to catch on the lip of the drag flask. Once the hoist is
attached, the drag flask is moved to the Plant floor where it is picked up
by a forklift and taken to a different area for repair. The guard rails are
then replaced and production resumes.

On February 2, 2007, Rudisill was informed that a drag flask had to be taken off
the mold line for run-out removal. He was assisted in accomplishing this task by Willie
Daniel, a drag-flask repairman, and Scott O’Neill, another employee. After they moved
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 4

the drag flask over the pit and had it suspended above the floor, Rudisill began hitting
the flask with a sledgehammer to dislodge the cooled run-out. As Rudisill hit the drag
flask, sand started slipping out. The flask then tipped due to the imbalance, which
caused one of the clamps to slip off and hit Rudisill in the face. Rudisill was knocked
back against a wall, fell to the floor, and rolled forward through the floor opening into
the hot pit below. He lay there unconscious, being burned by the hot-heads in the shaker
pan.

Seeing the trouble that Rudisill was in, coworker Ernest McClanahan jumped
down to the rescue. McClanahan, assisted by Ford emergency personnel, eventually
managed to get Rudisill out of the pit. Rudisill had gained consciousness by this time
and was screaming in pain.

As a result of the incident, Rudisill sustained a head injury that required several
staples to close. He was also burned on both arms, both legs, the abdomen, and the left
hand. Rudisill continues to experience pain, dizzy spells, ringing in the ears, and
memory problems. He has had numerous surgeries to treat his injuries, and has
undergone physical and occupational therapy.

After conducting a safety review immediately following the incident, Ford
decided to modify the flask-removal process. Now, when preparing for flask removal,
Ford employees slide metal grates over the pit before removing the guard rails. These
grates are added to ensure that any person who might otherwise fall through the floor
opening would instead fall onto the grates.

B. This action

Rudisill and his wife filed a complaint against Ford in Ohio state court in
September 2008. The complaint alleges an intentional tort under both Ohio Revised
Code § 2745.01 and common law on behalf of Rudisill, as well as a derivative claim of
loss of consortium on behalf of his wife. Ford removed the case to the United States
District Court for the Northern District of Ohio. The case was subsequently stayed
pending the Ohio Supreme Court’s determination of whether § 2745.01 is in conflict
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 5

with the Ohio Constitution, and was reopened when that court upheld the statute. Ford
then filed a motion for summary judgment, which Rudisill opposed. In March 2012, the
district court granted Ford’s motion for summary judgment.

The district court began its analysis by examining the structure of Ohio Revised
Code § 2745.01. Under the statute, an employee may recover for workplace torts only
upon a showing that the employer acted with the deliberate intent to injure. Ohio Rev.
Code § 2745.01(A)-(B). Removing equipment safety guards creates a presumption of
intent to injure, but the employer may rebut the presumption by showing that it did not
in fact intend to injure the employee. Id. § 2745.01(C).

The district court’s analysis proceeded in two steps. First, the court held that,
assuming a presumption of intent to injure arose from the guard rails’ removal, Ford had
successfully rebutted that presumption by introducing evidence showing the lack of an
intent to injure Rudisill. The court then held that, in the absence of the presumption,
Rudisill had not submitted sufficient evidence to create a genuine dispute of material fact
as to Ford’s intent to injure. Finding no genuine dispute of material fact, the court
granted summary judgment for Ford on the intentional-tort claim and dismissed the loss-
of-consortium claim as derivative.

On appeal, Rudisill attacks both steps of the district court’s analysis. He first
contends that the question of whether Ford successfully rebutted the intent-to-injure
presumption should have gone to the jury. Second, he argues that, even without the
presumption, there was sufficient evidence to create a triable issue of fact as to whether
Ford committed an intentional tort.

II. ANALYSIS

A. Standard of review

We review de novo a district court’s decision to grant summary judgment.
Huckaby v. Priest, 636 F.3d 211, 216 (6th Cir. 2011). Summary judgment is appropriate
where “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A motion for
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 6

summary judgment should not be granted “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The inquiry is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Id. at 251-52.

B. Statutory framework

As with every state in the country, Ohio has a workers’ compensation system.
This system represents a public-policy tradeoff: Employees receive guaranteed
compensation for injuries arising out of their employment, regardless of fault, thereby
obtaining a degree of protection against workplace injuries and bypassing the myriad
defenses and exceptions that often permitted employers to escape liability at common
law; in return, employees waive the right to bring tort actions against their employers for
workplace injuries, thereby minimizing the expense and administrative burden of
litigation and giving employers a measure of peace. See, e.g., Kaminski v. Metal & Wire
Prods. Co., 927 N.E.2d 1066, 1071-72 (Ohio 2010) (describing the constitutional and
legislative enactments comprising Ohio’s workers’ compensation system as “public
policy trade-offs by which the employee achieved a certain and speedy recovery in
exchange for granting a more limited liability to the employer”) (internal quotation
marks omitted); Stetter v. R.J. Corman Derailment Servs., L.L.C., 927 N.E.2d 1092,
1104 (Ohio 2010) (“[W]orkers’ compensation laws are the result of a unique
compromise between employees and employers, in which employees give up their
common-law remedy and accept possibly lower monetary recovery, but with greater
assurance that they will receive reasonable compensation for their injury. Employers in
turn give up common-law defenses but are protected from unlimited liability.”).

A linchpin of this policy tradeoff is the exclusivity of the workers’ compensation
remedy. Stetter, 927 N.E.2d at 1108 (“One of the fundamental pillars supporting [the
legislation] is the exclusivity of the no-fault compensation system.”). “The two most
important reasons for the exclusivity of the workers’ compensation remedy are[,] first,
to maintain the balance of sacrifices between employer and employee in the substitution
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 7

of no-fault liability for tort liability and, second, to minimize litigation, even litigation
of undoubted merit.” Id. at 1107 (internal quotation marks omitted). This balance of
sacrifices is reflected in the Ohio Constitution, where the same provision that authorizes
the creation of the workers’ compensation fund also provides that

[s]uch compensation shall be in lieu of all other rights to compensation,
or damages, for such death, injuries, or occupational disease, and any
employer who pays the premium or compensation provided by law . . .
shall not be liable to respond in damages at common law or by statute for
such death, injuries or occupational disease.

Ohio Const. art. II, § 35.

Despite this constitutional language, the Ohio Supreme Court has long held that
the exclusivity of the workers’ compensation remedy is subject to an exception in the
case of intentional torts. See, e.g., Triff v. Nat’l Bronze & Aluminum Foundry Co.,
20 N.E.2d 232, 232, 238-39 (Ohio 1939) (holding that Article II, § 35 of the Ohio
Constitution did not take away the right of employees to sue in tort for injuries that
would be “non-compensable” under the workers’ compensation system); Blankenship
v. Cincinnati Milacron Chems., Inc., 433 N.E.2d 572, 573 (Ohio 1982) (“An employee
is not precluded by Section 35, Article II of the Ohio Constitution . . . from enforcing his
common law remedies against his employer for an intentional tort.”); see generally
Kaminski, 927 N.E.2d at 1071-78 (describing the history of the Ohio workers’
compensation system and of legislative and judicial attempts to define the scope of the
intentional-tort exception).

The intentional-tort exception in Ohio was originally forged by the common law.
And it came to encompass two distinct kinds of intentional torts: (1) those where the
tortfeasor acts with the deliberate intent to cause an injury, and (2) those where the
tortfeasor believes that his acts are “substantially certain” to result in an injury even
though he does not intend to cause the specific injury that actually occurred. See Jones
v. VIP Dev. Co., 472 N.E.2d 1046, 1047 (Ohio 1984) (“An intentional tort is an act
committed with the intent to injure another, or committed with the belief that such injury
is substantially certain to occur.”); Kaminski, 927 N.E.2d at 1085 (summarizing
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 8

common-law jurisprudence, under which “‘direct intent’ torts are those in which the
actor’s action brings about the exact result desired, while ‘inferred intent’ torts are those
in which the actor believes his action is ‘substantially certain’ to cause a particular result,
even if the actor does not desire to bring that result about”).

For nearly a century, the Ohio Supreme Court jealously guarded the boundaries
of common-law intentional tort, repudiating as unconstitutional various attempts by the
Ohio legislature to codify the intentional-tort exception into a statute that confined
intentional torts to circumstances where the employer acted with the specific intent to
injure. See Kaminski, 927 N.E.2d at 1071-79 (chronicling the Ohio legislature’s
successive workers’ compensation legislation and the Ohio Supreme Court’s subsequent
repudiation of the same). But the court finally relented in a pair of decisions issued in
2010—Kaminski, 927 N.E.2d 1066, and Stetter, 927 N.E.2d 1092—which upheld as
constitutional an Ohio statute that significantly limits the scope of the common-law
exception.

That statute—which is the basis of Rudisill’s complaint in the present
case—reads in pertinent part as follows:

(A) In an action brought against an employer by an employee, or by the
dependent survivors of a deceased employee, for damages resulting from
an intentional tort committed by the employer during the course of
employment, the employer shall not be liable unless the plaintiff proves
that the employer committed the tortious act with the intent to injure
another or with the belief that the injury was substantially certain to
occur.
(B) As used in this section, “substantially certain” means that an
employer acts with deliberate intent to cause an employee to suffer an
injury, a disease, a condition, or death.
(C) Deliberate removal by an employer of an equipment safety guard or
deliberate misrepresentation of a toxic or hazardous substance creates a
rebuttable presumption that the removal or misrepresentation was
committed with intent to injure another if an injury or an occupational
disease or condition occurs as a direct result.

Ohio Rev. Code § 2745.01.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 9

This is a statute at war with itself: Subsection A provides for liability where the
employer acted “with the intent to injure another or with the belief that the injury was
substantially certain to occur” (emphasis added), but subsection B then defines
“substantially certain” as a “deliberate intent to cause an employee to suffer an injury,
a disease, a condition, or death,” thereby essentially eviscerating the phrase after “or”
in subsection A. In other words, using the definition of “substantially certain” provided
in subsection B, subsection A limits liability to circumstances where the employer acts
“with the intent to injure another” or “with deliberate intent to cause an employee to
suffer an injury, a disease, a condition, or death.” So what appears at first glance as two
distinct bases for liability is revealed on closer examination to be one and the same.

The Ohio courts have agreed with the foregoing interpretation of Ohio Revised
Code § 2745.01. In Kaminski, the Ohio Court of Appeals had this to say about the
statute:

When we consider the definition of “substantial certainty,” it becomes
apparent that an employee does not have two ways to prove an
intentional tort claim as R.C. 2745.01(A) suggests. The employee’s two
options of proof become: (1) the employer acted with intent to injure or
(2) the employer acted with deliberate intent to injure. Thus, under R.C.
2745.01, the only way an employee can recover is if the employer acted
with the intent to cause injury.

Kaminski v. Metal & Wire Prods. Co., 886 N.E.2d 262, 269 (Ohio Ct. App. 2008)
(quoted in Kaminski, 927 N.E.2d at 1079). The Ohio Supreme Court agreed, holding
that “the General Assembly’s intent in enacting R.C. 2745.01, as expressed particularly
in 2745.01(B), is to permit recovery for employer intentional torts only when an
employer acts with specific intent to cause an injury.” Kaminski, 927 N.E.2d at 1079.

The Ohio Supreme Court went on to acknowledge that this new, statutory scope
of liability is narrower than intentional-tort liability under Ohio common law.
See Kaminski, 927 N.E.2d at 1080 (noting that Ohio Revised Code § 2745.01 “intends
to significantly restrict actions for employer intentional torts” and affirming the Ohio
General Assembly’s “power to alter, revise, modify, or abolish the common law as the
General Assembly may deem necessary to further the common good” (internal quotation
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 10

marks omitted)). Specifically, whereas the common law allowed intentional-tort liability
based on either specific intent or inferred intent, the new statutory scheme premises
liability on specific intent alone. See Stetter, 927 N.E.2d at 1099-1100 (“It was the
General Assembly’s intent in enacting R.C. 2745.01, as expressed particularly in R.C.
2745.01(B), to permit recovery for employer intentional torts only when an employer
acts with specific intent to cause an injury. . . . R.C. 2745.01 embodies the General
Assembly’s intent to significantly curtail an employee’s access to common-law damages
for what we will call a ‘substantially certain’ employer intentional tort.” (emphasis in
original) (citation omitted)); Houdek v. ThyssenKrupp Materials N.A., Inc., ___ N.E.2d
___, 2012 WL 6553603, at *6 (Ohio 2012) (“[T]he General Assembly intended to limit
claims for employer intentional torts to situations in which an employer acts with the
‘specific intent’ to cause an injury to another.”).

The upshot is that tort-law remedies for workplace injuries in Ohio are limited
to those resulting from the employer’s deliberate intent to injure. For all other
workplace injuries, the employee’s sole avenue of redress is the worker’s compensation
system. Houdek, 2012 WL 6553603, at *6.

The specific-intent requirement is moderated, however, by subsection C of Ohio
Revised Code § 2745.01, which sets up a rebuttable presumption of intent to injure when
the employer deliberately removes an equipment safety guard or deliberately
misrepresents a toxic or hazardous substance. Much of the controversy in the present
case centers on the application of subsection C.

C. The district court’s analysis

The district court’s analysis proceeded in two steps. First, the court held that
Ford had rebutted the presumption of intent to injure arising under Ohio Revised Code
§ 2745.01(C) by introducing undisputed evidence that it did not intend to injure Rudisill.
The court then held that, in the absence of the presumption, Rudisill had failed to
introduce sufficient evidence to raise a triable issue of fact.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 11

In holding that Ford had rebutted the presumption, the district court relied on the
following two key factors:

1. There had been no substantially similar incidents. Christina Redella, Senior
Safety Engineer at the Plant, submitted an affidavit averring that “[p]rior to Norman
Rudisill’s accident in February 2007, there were no reported incidents or accidents in
which any employees were injured from clamps slipping off of flasks or from falling
onto the shaker pan when removing flasks for repair.” Rudisill, in turn, failed to counter
Redella’s affidavit by pointing to any evidence of substantially similar incidents that had
occurred prior to his injury.

The district court found the absence of substantially similar accidents particularly
significant in view of the millions of man-hours worked and the large amount of iron
produced at the Plant. Mark Tomkovich, the Controller at the Plant, submitted an
affidavit based on Ford’s electronic and physical records attesting that a total of
72,995,687 man-hours had been worked at the Plant from 1994 through 2006 and that
the Plant had produced at least 16,640,925 tons of iron since its opening in 1952. Given
the absence of a single substantially similar incident during the entire history of the
Plant, the district court concluded that “Ford had no reason to believe that the process
it had in place to remove drag flasks for repair was dangerous and, therefore, Ford could
not have intended to injure Mr. Rudisill.”

2. Rudisill and his coworkers did not think the flask-removal process was
dangerous. In addition to the absence of any substantially similar incident, the district
court noted that neither Rudisill nor any of his coworkers had considered the flask-
removal process to be dangerous. Rudisill testified during his deposition that, prior to
the incident, he had never had “any problems” (let alone injuries or incidents) “with the
clamps coming off at the flask or a car top while removing it from the line.” He also
testified that the process “worked,” and that he had never known of anyone else who had
fallen into the pit. Scott O’Neill, Rudisill’s coworker who was present at the incident,
testified to the same effect.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 12

Rudisill further testified that, as Team Leader, he would have reported to
management had he believed the flask-removal process to be dangerous, and he would
not have allowed other employees to engage in the process. He instead allowed other
employees to take part and did not make a report because he did not perceive any danger.
Nor did any other employee ever voice a safety concern or report a dangerous condition
to management about the flask-removal process.

Finally, Rudisill testified that he did not have “any reason to think” that Kevin
Wrobleski, the foreman who was Rudisill’s immediate supervisor, “wanted anybody to
get hurt.” The district court concluded that “[a]ll this undisputed evidence rebuts the
presumption that Ford intended to injure an employee by the process of removing a drag
flask for repair.”

Having concluded that Ford had rebutted the presumption, the district court next
considered whether, in the absence of any presumption, Rudisill’s evidence was
sufficient to create a triable issue of fact. The court considered Rudisill’s
allegations—that Ford failed to issue him protective equipment in violation of Ohio
Administrative Code § 4123:1-5-17, and that Department of Labor inspections between
1998 and 2010 had reported “a laundry list of substandard conditions” at the Plant—and
found them wanting. With respect to the alleged failure to issue protective equipment,
the court found that such failure was at most evidence of negligence, not of deliberate
intent to injure. It also found that the prior Department of Labor citations did not
constitute evidence of Ford’s deliberate intent to injure because none of the citations
concerned incidents or conditions substantially similar to those that caused Rudisill’s
injury.

Ultimately, the district court granted summary judgment for Ford on the
intentional-tort claim after concluding that Rudisill’s submissions “do not set up any
material factual dispute.” The loss-of-consortium claim by Rudisill’s wife was then
dismissed as derivative.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 13

D. Rudisill’s claims of error

1. Whether Ford rebutted the intent-to-injure presumption

Rudisill claims that the district court erred in holding, as a matter of law, that
Ford had rebutted the presumption of intent to injure. He maintains that the question
should have gone to a jury. Rudisill’s argument is twofold. He first contends that, as
a general matter, “whether a party has rebutted a presumption is an issue for the trier of
fact.” Second, Rudisill claims that, under the particular circumstances of this case, he
presented sufficient evidence to create a jury question as to the applicability of the
presumption.

Rudisill cites several Ohio decisions in support of the proposition that the
question of whether a presumption has been rebutted must always go to the jury. But
none of these decisions stand for the proposition that the issue of whether a presumption
has been rebutted is categorically a jury question; they simply hold that, in the particular
circumstances of those cases, a triable issue of fact was present. See Dudley v. Powers
& Sons, LLC, No. WM-10-015, 2011 WL 1590252, at *3 (Ohio Ct. App. Apr. 22, 2011)
(holding that, where the only evidence presented by the defendant to rebut the intent-to-
injure presumption under Ohio Revised Code § 2745.01(C) was an affidavit from its
manufacturing engineer attesting that no harm had been intended, the issue of whether
the presumption had been rebutted was for the jury to decide); Zemanek v. Meseroll, No.
C-75499, 1976 WL 189914, at *1-3 (Ohio Ct. App. Aug. 23, 1976) (holding that, where
one minor injured another minor while shooting BB guns at each other during a game
of “war,” and no evidence was presented as to whether the minors participated in the
game “with intelligence and proficiency” rather than “thoughtlessly,” the applicability
of the rebuttable presumption that minors are “incapable of forming the necessary
judgment for self care” presented a genuine dispute of material fact).

Indeed, there are several Ohio decisions—including one addressing the very
presumption in Ohio Revised Code § 2745.01(C)—that hold as a matter of law that the
applicable presumption was rebutted. See, e.g., Shanklin v. McDonald’s USA, LLC, No.
2008 CA 00074, 2009 WL 154034, at *7 (Ohio Ct. App. Jan. 20, 2009) (holding that
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 14

where an employee food preparer was injured by contact with an exposed inner wire of
a microwave oven whose housing unit had been removed, the defendant rebutted the
intent-to-injure presumption of § 2745.01(C) by putting forth uncontradicted evidence
that the housing unit had been removed for repair and was replaced after repair, and that
the employee was not required to work with the microwave for food preparation in the
interim); Meek v. Cowman, No. 07CA31, 2008 WL 683972, at *3-5 (Ohio Ct. App.
Mar. 7, 2008) (holding that the defendant rebutted the presumption that the testator was
incompetent by putting forth several uncontroverted affidavits confirming the testator’s
mental alertness around the time that he prepared his will); State ex rel. Benjamin v.
Ohio Dep’t of Rehab. & Corr., No. 06AP-158, 2007 WL 1470464, at *2 (Ohio Ct. App.
May 22, 2007) (holding that uncontroverted evidence of an incorrect service address
rebutted the presumption of proper service of process).

Rudisill has cited only one decision that arguably supports the proposition that
the issue of whether a presumption has been rebutted is categorically for the jury to
decide. In that case, the Ohio Court of Appeals held that the intent-to-injure
presumption was inapplicable because the ventilator system that had been removed from
a conveyor belt did not constitute an “equipment safety guard” within the meaning of the
statute. Zuniga v. Norplas Indus., Inc., 974 N.E.2d 1252, 1258 (Ohio Ct. App. 2012).
The court therefore affirmed the trial court’s grant of summary judgment for the
defendant on the intentional-tort claim. In dicta, however, the court set forth what it
thought would be the proper analysis if the intent-to-injure presumption had in fact
arisen:

Once a statutory presumption of employer intent to injure is established,
rebuttal of that presumption necessarily involves some weighing of
evidence. This would preclude summary judgment on such an issue
because weighing evidence or choosing among reasonable inferences is
not permissible in a summary judgment analysis.

Id. at 1257.

We find this reasoning unpersuasive. Deciding whether the intent-to-injure
presumption has been rebutted does not “necessarily” require the weighing of evidence.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 15

Suppose, for example, that, as in Shanklin, the evidence is unequivocal and
uncontroverted that the safety guard on a piece of equipment was removed for repair,
that the employee was not required to work with the equipment in such condition, and
that there is no evidence that anybody intended any harm. There would be no evidence
to weigh under these circumstances. All the evidence would point in one direction and
the answer would be clear as a matter of law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986) (holding that the inquiry on summary judgment is “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether
it is so one-sided that one party must prevail as a matter of law”).

Of course, if the evidence adduced by a defendant to rebut the presumption is
weak, or if a plaintiff presents substantial countervailing evidence, then resolution of the
issue would require the weighing of evidence that would render summary judgment
improper. See id. at 255 (“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury functions, not those of a
judge . . . .”). But that is a big “if.” As the Ohio decisions cited above demonstrate, not
every case involves the weighing of evidence; sometimes the answer is clear as a matter
of law. The dictum in Zuniga that deciding whether the presumption has been rebutted
“necessarily involves some weighing of evidence,” 974 N.E.2d at 1257, is therefore
incorrect. Instead, deciding whether a jury question is presented depends on the
circumstances of the particular case and the evidence before the court.

Rudisill essentially acknowledges this point when he purports to distinguish the
Ohio decisions that resolved the presumption-rebuttal issue as a matter of law by arguing
that “none of [those] cases . . . required the court to weigh any evidence.” So Rudisill
apparently recognizes that the question of whether the presumption-rebuttal issue may
be decided as a matter of law is not susceptible to a single categorical answer, but
instead must be answered by reference to the evidence before the court in the particular
case at hand.

In rejecting the dicta in Zuniga, we also note that the question of whether
summary judgment is appropriate is a question of federal law, not state law.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 16

See generally 10A Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 2712 (“[I]n diversity-of-citizenship actions questions relating to the
availability of summary judgment, such as whether there is a disputed issue of fact that
is sufficient to defeat the motion, are procedural and therefore governed by Rule 56,
rather than by state law.”); see also Shropshire v. Laidlaw Transit, Inc., 550 F.3d 570,
573 (6th Cir. 2008) (holding that “the Michigan provision [governing the circumstances
under which a jury question is created in certain tort cases] is procedural, and therefore
a plaintiff is not entitled to argue her case to a jury merely because she has satisfied its
requirements,” but must instead “produce evidence creating a genuine issue of material
fact, as required by Rule 56(c)”).

In the present case, the parties appropriately cite to federal authorities in stating
the black-letter summary-judgment standard. Once the black-letter standard is stated,
however, they cite exclusively to Ohio authorities in arguing about whether the
presumption-rebuttal issue should go to the jury or be decided by the court. The parties’
citations to Ohio decisions discussing the availability vel non of summary judgment,
though certainly helpful in clarifying Ohio substantive law, are not binding on us with
respect to whether sufficient evidence has been adduced to survive summary judgment.
But as the above discussion demonstrates, the Ohio decisions cited by the parties (with
the exception of Zuniga) appear to be in conformity with the federal standard.

Returning now to the key point that the presumption-rebuttal issue may in some
cases be properly decided as a matter of law by the court, the question becomes whether
that was the correct decision in the present case. We conclude that it was. As explained
above, the district court took stock of the pertinent evidence—the lack of any prior
substantially similar incidents despite the hundreds of millions of hours worked at the
plant; the lack of any prior citations or complaints involving substantially similar
conditions; the admission by Rudisill and other employees involved in the flask-removal
process that they did not think the process was dangerous; the fact that Rudisill had
routinely engaged in the process hundreds of times without incident; Rudisill’s
acknowledgment that he would have reported the condition if he had thought the process
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 17

was dangerous and, as Team Leader, would not have let his coworkers engage in the
process; and Rudisill’s concession that he had no reason to think that his supervisor at
Ford intended to harm him—and concluded that Ford had rebutted the presumption.
We find no error in this conclusion.

Instead of directly responding to the above evidence, Rudisill faults the district
court for relying on the testimony of several Ford employees to the effect that “workers’
safety is important to Ford and that Ford does not deliberately intend to injure its
employees.” He argues that the assessment of such generalized statements requires a
credibility determination that should have been left to the jury.

Rudisill is correct to the extent that the self-congratulatory affidavits stating that
Ford is committed to workers’ safety would alone not be sufficient to rebut the
presumption. See Dudley v. Powers & Sons, LLC, No. WM–10–015, 2011 WL 1590252,
at *3 (Ohio Ct. App. Apr. 22, 2011) (“The testimony of a Powers employee [that there
was no intent to harm] cannot be weighed so heavily to say that reasonable minds could
not disagree on the issue of intent.”). But his argument as to the effect of these affidavits
in the present case is misplaced because, even though the district court mentioned the
“we love safety” affidavits, it did not attach any particular importance to them and did
not rely on them in reaching its decision. Instead, the court relied on the hard,
uncontroverted evidence that has been discussed above. The affidavits are therefore
beside the point.

Rudisill also argues that “to find that Ford rebutted the presumption, as the
District Court did here, suggests that, in order to invoke the presumption in the first
instance, Mr. Rudisill was required to present proof that the equipment safety guards
were removed with the intent to injure. This undermines the very purpose of Ohio Rev.
Code § 2745.01(C).”

We are not persuaded by Rudisill’s interpretation of the district court’s ruling.
A plaintiff is obviously not required to adduce evidence of an intent to injure in order to
invoke the presumption of intent of injure; that is the point of a presumption. But once
the presumption has been invoked, a defendant may rebut it by marshaling evidence that
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 18

there was in fact no intent to injure; that is the point of a rebuttable presumption.
See Ohio Rev. Code § 2745.01(C) (“Deliberate removal by an employer of an equipment
safety guard . . . creates a rebuttable presumption that the removal . . . was committed
with intent to injure . . . .” (emphasis added)); Shanklin, 2009 WL 154034, at *6 (“[W]e
find [that] the evidence presented rebuts the presumption that the removal of the housing
unit was committed with the intent to injure the employee.”).

The district court’s ruling that Ford had successfully rebutted the intent-to-injure
presumption by adducing evidence of a lack of intent to injure does not mean that
Rudisill was required to present evidence of an intent to injure in order to invoke the
presumption in the first place. There is a significant difference between giving the
defendant an opportunity to rebut a presumption and a finding that no presumption arose
to begin with. Once the rebuttable presumption has been successfully invoked, the
burden is on the defendant to rebut it by introducing evidence of the lack of an intent to
injure; by contrast, in the absence of a presumption, the burden would be on the plaintiff
in the first instance to introduce evidence of the intent to injure. See Ohio R. Evid. 301
(“[A] presumption imposes on the party against whom it is directed the burden of going
forward with evidence to rebut or meet the presumption . . . .”); Ferrando v.
Auto-Owners Mut. Ins. Co., 781 N.E.2d 927, 947 (Ohio 2002) (affirming that, once a
presumption arises, the opposing party “bears the burden of presenting evidence to
rebut” it).

Ohio law, by the way, governs the effect of the presumption in this case. See
Fed. R. Evid. 302 (“In a civil case, state law governs the effect of a presumption
regarding a claim or defense for which state law supplies the rule of decision.”). This
is in contrast to federal law governing the procedural question of whether summary
judgment is appropriate in a particular case. (See supra for authorities on this latter
point.)

For all the reasons discussed above, the district court correctly held that Ford had
successfully rebutted the presumption. We will therefore turn to Rudisill’s remaining
issue on appeal.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 19

2. Whether, in the absence of a presumption, there existed a triable issue of
fact

When a presumption is rebutted, the case proceeds as if the presumption had
never arose. See, e.g., In re Guardianship of Breece, 184 N.E.2d 386, 394 (Ohio 1962)
(“Where the presumption is a rebuttable one, as in this case, the production of evidence
disputing or contrary to the presumption causes the presumption to disappear where such
evidence to the contrary either counterbalances the presumption or even when it is only
sufficient to leave the case in equipoise.”); Horsley v. Essman, 763 N.E.2d 245, 249
(Ohio Ct. App. 2001) (“We have previously characterized the effect of rebutting the
presumption as ‘bursting the bubble,’ with the case then proceeding as if the
presumption had never arisen.”). The inquiry thus becomes whether the plaintiff has
adduced sufficient evidence to allow a reasonable jury to conclude that every element
of the plaintiff’s claim has been met. In the present case, the focus is on the intent-to-
injure element.

Rudisill’s appellate briefs raise the following factors as evidence of Ford’s
alleged intent to injure: (1) allowing employees to work over an exposed pit of molten
metal without any guards to shield the pit and without any safety equipment;
(2) the testimony of two of Ford’s safety engineers regarding Ford’s knowledge of the
dangerous condition; (3) the Occupational Safety and Health Administration (OSHA)
guidelines or warnings about the hazards associated with exposed floor openings; and
(4) Ford’s failure to conduct a job-safety analysis. We will examine each of these
factors in turn to see whether, taken together, they would enable a reasonable jury to
conclude that Ford intended to injure Rudisill.

1. Working conditions. As an abstract matter, having people hammer at a heavy
iron flask suspended in the air by iron clamps while standing near the edge of an
unguarded pit of molten metal without wearing any special protective equipment seems
dangerous. And, in view of Rudisill’s unfortunate incident, the process seems even more
dangerous with the benefit of hindsight.
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 20

But the relevant inquiry is not about dangerousness; it is about the deliberate
intent to injure. And although one can hypothesize working conditions so dangerous as
to raise a reasonable inference of an intent to injure, such an inference does not arise in
the present case. To the contrary, even though the flask-removal process might seem
dangerous to an armchair observer with the benefit of hindsight, it did not seem so to any
of the Ford employees who had performed the task innumerable times for many years.
None of these employees, including Rudisill himself, testified that he considered the
process dangerous prior to the incident in question. Nor did a single employee ever
complain, warn, or raise any red flags about the process.

Indeed, Rudisill testified that, as a Team Leader, he would report any dangerous
condition he saw to the foreman; that he had reported other dangerous conditions to the
foreman in the past; that he would not “get into trouble” for reporting dangerous
conditions; that the foreman was “responsive” and there was no reason to think that the
foreman wanted anyone to get hurt; and that he had never required another employee to
perform a task that he thought was dangerous. Yet Rudisill had never complained to
anyone about the flask-removal process and never instructed other Ford employees not
to engage in the process. To the contrary, as far as he was concerned, the process
“worked” and he had never had “any problems” with it.

Other employees similarly testified that they had never complained about the
process, never heard of anyone complaining about it, and never considered the process
to be problematic or unsafe. In light of all this uncontroverted testimony, as well as the
lack of any similar incidents in the past, the conditions of the flask-removal process at
the time that Rudisill was injured would not enable a reasonable jury to conclude that
Ford intended to harm him.

We would add that this is not a case where a company decides to throw safety
to the wind and do whatever it takes to increase production. Rather, there was a specific
functional purpose for temporarily removing the guard rails surrounding the pit. The
removal enabled the employees to access the drag flask so that they could clean off the
run-out. Rudisill conceded at oral argument that the guard rails’ removal was necessary
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 21

for this purpose. Of course, the fact that Ford’s actions had a specific functional purpose
does not automatically exempt the process from intentional-tort analysis. And we know,
in hindsight, that the incident would have been avoided if Ford had designed alternative
means (such as the later-added metal grates) to guard the pit while the guard rails were
temporarily removed. But the fact that the guard rails’ temporary removal was necessary
in order to clean the drag flask from run-out is an additional factor evincing a purpose
other than an intent to injure Rudisill. Cf. Shanklin v. McDonald’s USA, LLC, No. 2008
CA 00074, 2009 WL 154034, at *7 (Ohio Ct. App. Jan. 20, 2009) (noting that removing
the microwave’s housing unit was necessary to repair the microwave, and the housing
unit was replaced after the repair).

2. The testimony of two Ford employees. Rudisill nevertheless claims that two
Ford employees testified in their depositions that “Ford was aware of the dangers posed
by exposed floor openings and that the floor opening in which Mr. Rudisill was injured
should have been guarded with a floor grate to protect Mr. Rudisill from falling into the
pit.”

The first part of Rudisill’s contention is not supported by the record. Nowhere
in the deposition pages cited does either employee say that Ford “was aware” of any
dangers. As for the rest, here are the pertinent excerpts from the depositions of the two
employees in question (Senior Safety Engineer Christina Redella and Safety Engineer
Jason Kriebel):

Q. [R]emoving the drag flask from this operation on or about February
2nd, 2007 required the removal of the long barrier guard, true?
A. It did. . . .
...
Q. And we didn’t have a grate in place, true?
A. Correct.
Q. So that was a required aspect of the job in removing the drag flask?
A. It should have been.
Q. I’m sorry?
A. The grating, it should have been.
(Redella Dep. 74-75)
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 22

Q. Putting a grate over the hole before the flask is being removed and
after the vertical rail guard is removed is not a real complex solution; can
we agree with that?
A. I would agree. Most cases it’s probably not a real mind boggling task
or action to take.
(Kriebel Dep. 123)

Redella’s statement that the grating “should have been” a required aspect of the
job is nothing more than her opinion, in hindsight, of what the best safety practice should
have been. Such an opinion is at most evidence of negligence (and not particularly
strong evidence at that), and certainly would not be sufficient to enable a reasonable jury
to find a deliberate intent to injure.

Kriebel’s testimony is even less relevant. Whether the installation of metal
grates would be “complex” or “mind boggling” is in no way probative of Ford’s intent
to injure. In sum, the testimony of the Ford employees identified by Rudisill would not
permit a reasonable jury to find that Ford intended to injure him.

3. OSHA guidelines or warnings. Rudisill’s argument about OSHA is less than
clear. His opening brief states that “Ford had been warned of the hazards associated
with exposed floor openings during an OSHA wall-to-wall review in 1998—nine years
prior to Mr. Rudisill’s accident.” But Rudisill never actually cites to or provides any
OSHA documents. The same goes for Ford’s Guidelines, Responsibilities, and Safe
Practices (“GRASP”) handbook, which is often referenced but never specifically cited
or provided. We are unable to draw any conclusions from these documents without
seeing their contents.

The only clue provided by Rudisill as to the import of either OSHA or GRASP
is through the deposition testimony of the two Ford safety engineers. The pertinent
testimony from Kriebel is to the effect that he “believe[s]” the GRASP handbook “does
mention” something about “exposed floor openings” and “believe[s]” that GRASP
“instruct[s] employees not to work around exposed floor openings,” but he is “not sure
of the specific verbiage.” No reasonable jury could conclude on the basis of such
equivocal testimony that Ford intended to injure Rudisill. Even assuming that the
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 23

“exposed floor openings” purportedly discussed in the GRASP handbook include the
type of pit that Rudisill fell into, the foregoing testimony is utterly unclear as to what the
handbook actually said. Moreover, the failure to follow an instruction in a safety
handbook is at most evidence of negligence, not evidence of a specific intent to injure.

Rudisill also cites the deposition testimony of Redella to the effect that, at some
point in 1998, OSHA told Ford to “have all exposed floor openings covered and/or
guarded.” Again, this is at most evidence of negligence. The general (and rather
unremarkable) acknowledgment that unguarded floor openings might be dangerous does
not show that Ford intended to injure Rudisill in requiring him to perform the specific
flask-removal task at issue in the present case. We thus conclude that Rudisill’s vague
references to OSHA and GRASP cannot supply the basis for a reasonable jury to find
that Ford intended to injure him.

4. Job-safety analysis. The final factor raised by Rudisill to support his claim
of an intent to injure is based on references to Ford’s failure to “perform a job safety
analysis.” But Rudisill is not specific as to what sort of analysis he thinks that Ford
should have performed. Moreover, he has presented no evidence that would connect a
presumed failure to conduct a job-safety analysis to a deliberate intent to injure him.

In sum, the evidence taken from all four factors together would not enable a
reasonable jury to conclude that Ford acted with the deliberate intent to injure Rudisill.
Because such intent is an essential element of an intentional-tort claim under Ohio
Revised Code § 2745.01, summary judgment for Ford was properly granted. See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[T]he plain language of Rule 56[] mandates
the entry of summary judgment . . . against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”).

Although this result might seem harsh to an injured employee like Rudisill, it is
the result of reasoned public policy. The “social bargain” of workers’ compensation is
a two-way street: True, employees give up the ability to bring tort claims on anything
less than a demanding showing of intent to injure. But in turn they obtain compensation
No. 12-3486 Rudisill et al. v. Ford Motor Co. Page 24

for a variety of injuries, regardless of fault, for which the common law provided no
remedy. The tradeoffs inherent in Ohio’s workers’ compensation system for both
employers and employees are well described by the Ohio Supreme Court in Kaminski
v. Metal & Wire Products Co., 927 N.E.2d 1066, 1071-72 (Ohio 2010), and Stetter v.
R.J. Corman Derailment Services, 927 N.E.2d 1092, 1104, 1107-09 (Ohio 2010). One
might argue as a matter of policy that this bargain is too one-sided; that the employees
got the short end of the stick. But such arguments, whatever their merit, should be
addressed to the Ohio legislature rather than to the courts. As it is, the Ohio statute
requires evidence of the deliberate intent to injure, and there is no such evidence in the
present case.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district
court.