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Employer Law Report

Ohio Supreme Court Holds that Employee Not Wearing PPE Did Not Amount to a Deliberate Removal of an Equipment Safety Guard and Could Not Establish an Intentional Tort Claim

Posted in Workers' Compensation, Workforce Strategies

In Hewitt v. L.E. Myers Co., 2012-Ohio-5317, the Ohio Supreme Court held last week that protective gloves and sleeves are “personal protective items” that an employee controls and not equipment safety guards for purposes of stating a cause of action under Ohio’s intentional tort statute, which provides an exception to an employer’s workers’ compensation immunity. The Court also clarified that an employee claiming that his employer removed a safety guard—which creates a rebuttable presumption of intent to injure under the statute—must establish that the employer made a deliberate decision to lift, push aside, take off, or otherwise eliminate the safety guard. Finally, the Court held that an employee’s failure to use personal protective items or an employer’s failure to require an employee to use personal protective items does not constitute the deliberate removal of an equipment safety guard.

Larry Hewitt was working as an apprentice lineman for L.E. Myers Company, an electrical utility construction contractor. Hewitt was working on de-energized power lines while connecting new power lines to old power lines. Workers were required to use rubber gloves and sleeves in the event that the lines became energized, which was consistent with company policy. Hewitt claimed that another lineman told him that he would not need the gloves and sleeves because the lines were de-energized. While he was working, Hewitt turned toward a coworker who yelled something to him. In doing so, the wire in his hand came into contact with an energized line, and he received burns from an electric shock. He applied for and received workers’ compensation benefits. He also sued for an intentional tort, alleging that the workers’ compensation immunity provided for under Ohio law did not apply because L.E. Myers knew with substantial certainty that he would be injured when working near energized lines without protective gloves and sleeves. He alleged that his employer removed a safety barrier by allowing him to work without protective gloves and sleeves.

The trial court agreed with L.E. Myers that there was insufficient evidence of any actual intent to injure and therefore required Hewitt to proceed on a theory of recovery that L.E. Myers’s intent to injure could be inferred from the deliberate removal of an equipment safety guard. A jury returned a verdict in favor of Hewitt on this theory of recovery. L.E. Myers filed a motion for a directed verdict prior to the jury verdict and a motion for judgment notwithstanding the verdict after the verdict. Both were denied. An appeals court affirmed, holding that protective gloves and sleeves were equipment safety guards and that the decision to not require him to wear protective gloves and sleeves amounted to a deliberate removal of a safety guard.

The Ohio Supreme Court reversed. R.C. 2745.01 states that an employer can be liable for an intentional tort if the injury was “substantially certain” to occur—meaning that the employer acts with deliberate intent to cause an employee to suffer an injury, a condition, or death. R.C. 2745.01 (C) states that the deliberate removal of an equipment safety guard creates a rebuttable presumption that the removal was committed with an intent to injure if an injury occurs as a direct result.

L.E. Myers argued that “an equipment safety guard” means a safety device attached to a machine intended to guard against injury and that “deliberate removal” occurs when an employer makes a decision to eliminate that guard from the machine. Hewitt, on the other hand, argued that a safety guard is any safety-related item that serves as a barrier between the employee and danger. Hewitt also argued that the “removal” of a safety guard could be established by evidence that the employer failed to train or instruct an employee on a safety procedure. A minority of Ohio courts of appeal supported Hewitt’s view of the statute.

The Court agreed with L.E. Myers and the majority of Ohio courts of appeal. The Court looked to the ordinary meaning of the words used in the statute and the Ohio legislature’s narrow view of the intentional tort statute. The Court looked for guidance in its recent decision in Kaminski v. Metal & Wire Prods. Co., which held that the statute required specific intent to injure to set forth an intentional tort claim. The Court held that “an equipment safety guard” is “‘a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.’” An employee claiming that his employer removed a safety guard must establish that the employer made a deliberate decision to “lift, push aside, take off, or otherwise eliminate” the safety guard. The Court held that protective gloves and sleeves are “personal protective items”—not equipment safety guards. An employee’s failure to use them or an employer’s failure to require that an employee use them does not constitute the deliberate removal of an equipment safety guard. Finally, the Court held 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.

The Hewitt decision represents one more in a line of cases from the Ohio Supreme Court that appropriately narrows the intentional tort exception to workers’ compensation immunity to reflect the compromise that workers’ compensation laws were designed to implement. While employers certainly should celebrate this favorable decision, they still of course should continue to strive to make their workplaces as safe as possible, not only because it helps avoid costly workers’ compensation claims and potential OSHA fines, but because it is the right thing to do.