WHEELING – A circuit court judge has denied a defendant’s motion to dismiss the plaintiff’s amended complaint in a workplace injury lawsuit, saying it was premature to consider such a request.
Circuit Judge Michael J. Olejasz filed the order April 6 in Ohio Circuit Court. Trent Kiziminski had filed his complaint against East Coast Metal Systems alleging foreman Mike Pratt was negligent and caused him injuries when he sprayed the back of Kiziminski's pants with a chemical spray bottle that had no label but was later identified as denatured alcohol.
Kiziminski said he felt an unnaturally cold feeling on his jeans and felt they were wet and asked Pratt what he had done, and he then advised the shop steward of the incident and went to wash the chemicals from his body and clothing. While washing in the restroom, Kiziminski said he decided to seek medical care because his body was burning.
Olejasz
At the urgent care clinic, Kiziminski was treated for first-degree burns to his rectum. About a week later, he went to the emergency department after the burn had become infected. In August 2019, a physician diagnosed Kiziminski with hemorrhoids and infection. He also says he has suffered significant stomach issues.
East Coast Metal Systems had filed a motion to dismiss the amended complaint, but Olejasz’s order explained why that wasn’t happening.
“Generally, a motion to dismiss should be granted only where it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Olejasz wrote, quoting a 2008 state case styled Forshey v. Jackson. “The motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted.”
East Coast Metal Systems had argued that Kiziminski had failed to assert a claim under the deliberate intent exception to workers’ compensation immunity, because the alleged conduct of defendant was not “intended to cause” the alleged injuries and plaintiff can’t prove he suffered a “serious compensable injury.”
Olejasz says the plaintiff alleges Pratt breached his duty of care by willfully, wantonly and intentionally spraying chemicals on the plaintiff’s rectum area. And, he says the plaintiff attached a verified statement from Timothy Gordon, Senior Occupational Safety and Health Consultant, who said the defendant violated safety standards. He also says the defendant had prior knowledge of numerous bottled chemicals that were unlabeled that posed a high degree of risk.
“While compelling, defendant’s arguments are simply premature as they are meant for the summary judgment stage of litigation,” Olejasz wrote. “Defendant’s argument regarding the inability of plaintiff to prove he suffered a serious compensable injury requires the consideration of the final order from plaintiff’s companion litigation that took place in front of the West Virginia Workers’ Compensation Office of Judges.
“Additionally, defendants’ argument regarding plaintiff insufficiently alleging defendant’s intent to injure plaintiff requires some discovery to adequately resolve it.”
Kiziminski is seeking compensatory damages. He is represented by Joshua D. Miller and Michael A. Kuhn of Toriseva Law.
"Every worker in this situation is entitled to a day in court," Toriseva told The West Virginia Record. "We're glad our client will get his."
Ohio Circuit Court case number: 21-C-100
