by Jack B. Harrison
In Hewitt v. L.E. Myers (Slip Opinion No. 2012-Ohio-5317, syllabus), the Ohio Supreme Court recently held that an employee's failure to use or failure to require an employee to wear personal protective equipment does not constitute an intentional or deliberate removal of an equipment safety guard under Ohio's intentional tort statute.
Historically, Ohio law has created very limited exceptions to the statutory worker’s compensation scheme. One such exception is that the statute allows an injured employee to pursue an intentional tort claim in a situation where an employer acted "with the intent to injure another or with the belief that the injury was substantially certain to occur." Ohio Rev. Code Ann. § 2745.01(A). While "intent to injure" is generally very difficult to prove, the statute creates a rebuttable presumption of an intentional injury when an employee can prove "[d]eliberate removal by an employer of an equipment safety guard.” Ohio Rev. Code Ann. § 2745.01(C).
Hewitt involved a plaintiff who worked as an apprentice lineman for L.E. Myers Company, an electrical-utility construction contractor. On the day the employee was injured, he was replacing old electrical power lines, while working from an elevated bucket truck. Although he was required to use protective rubber gloves and sleeves that day, he chose not to do so. His rationale for making this choice was that another lineman allegedly told him the protective gear was unnecessary as the lines were de-energized. However, the lines were actually live and the employee received an electric shock that resulted in severe burns.
The employee applied for and received workers' compensation benefits under the Ohio statutory scheme. He also sued his employer, alleging a workplace intentional tort claim. At trial, the jury returned a verdict of nearly $600,000 in the employee's favor. The jury concluded that the employer deliberately removed an equipment safety guard – the protective gloves and sleeves – and such deliberate removal amounted to an intent to injure under the statute. The court of appeals affirmed the jury verdict, and the employer appealed the case to the Ohio Supreme Court.
The Supreme Court then reversed the rulings of the lower courts, adopting a stricter interpretation of the intentional tort statute. The court narrowly defined "equipment safety guard" as "a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment." The court also narrowly defined "deliberate removal" of an equipment safety guard to mean the "deliberate decision to lift, push aside, take off, or otherwise eliminate that guard." Consistent with these definitions, the Supreme Court concluded that "equipment safety guard" did not encompass generic safety-related items such as personal protective equipment. The court further found that an employer's failure to train or instruct an employee on a safety procedure does not constitute the "deliberate removal" of an "equipment safety guard" under the statute.
The Supreme Court’s decision in Hewitt should provide some relief to Ohio employers. The Supreme Court’s much stricter interpretation of the "equipment safety guard" provision of the statute should curb intentional tort lawsuits that had previously arisen under the statutory rebuttable presumption. However, even given this ruling, prudent employers should continue to place an emphasis on workplace safety, so as to minimize their workers' compensation costs, regardless of whether those costs are incurred within the statutory system or within the courts.