On November 20, 2012, the Ohio Supreme Court narrowly construed the phrases "equipment safety guard" and "deliberate removal" in the context of Ohio's employer intentional tort statute. Hewitt v. L.E. Myers, Slip No. 2012-Ohio- 5317. In so doing, the Court rejected a broad construction of the terms that would have potentially increased liability of employers. The Ohio Supreme Court held that an employer’s failure to mandate the use of certain safety equipment does not constitute removal of a safety guard and an intentional tort.
Employment intentional torts have been the subject of much litigation and legislative action in Ohio over the past several decades. Most recently, in 2005, the Ohio General Assembly enacted a statute that only allowed an employer to be sued for an intentional tort if the employer acted with specific intent. The statute, however, contained a presumption of an intent to injure if an employee could demonstrate that the employer deliberately removed equipment safety guards.
Since the enactment of this statute, appellate courts struggled with determining what constituted the deliberate removal of an “equipment safety guard.” Plaintiffs throughout the state urged courts to adopt an expansive definition of “equipment safety guard” to include things such as personal protective equipment. Employers, on the other hand, urged courts to narrowly construe the term to apply only to circumstances where specific barriers protecting pinch points on equipment were removed or disabled. In issuing its recent decision, the Supreme Court adopted the restrictive view of the statute advocated by employers. Reminger's Appellate Advocacy Practice Group authored an amicus brief on behalf of the Ohio Association of Civil Trial Attorneys urging a restrictive interpretation of the statute.
In Hewitt, an employee was injured while working on overhead power lines. The employee argued that his employer's failure to require him to work with rubber gloves and sleeves constituted the deliberate removal of an equipment safety guard designed to protect him from the hazards of his job. A jury returned a verdict in favor of Hewitt and the verdict was affirmed on appeal. The Supreme Court, however, reversed the verdict and concluded that the failure to mandate use of personal protective equipment did not constitute the deliberate removal of an equipment safety guard.
Specifically, the Court held that “equipment safety guard” meant a device designed to shield the operator from exposure to or injury by a dangerous aspect of equipment. The Court went on to hold that "deliberate removal" occurs when an employer makes a deliberate decision to lift, push aside, takeoff, or otherwise eliminate that guard. The Court observed that to broadly construe these terms to include generic safety related items ignored both the meaning of the words in the statute and the General Assembly's intent to restrict liability for intentional torts.
The Supreme Court's decision is significant in reaffirming the fact that Ohio's employment intentional tort statute was designed to restrict liability of employers. The Supreme Court is currently considering another case being handled by Reminger's Appellate Advocacy Practice Group which will hopefully answer additional questions concerning the application and scope of the statute.
If you have any questions concerning how the Supreme Court's recent decision may impact a particular situation, or any other questions, please contact any member of our Appellate Advocacy Practice Group.
