In April, 2005, The Ohio General Assembly passed a revised version of an Employment Intentional Tort Statute. The standard to prevail in an intentional tort was raised to a “deliberate intent.” The statute defined a specific circumstance in which deliberate intent would be presumed. Under Subsection (C) the General Assembly determined that “deliberate removal by an employer of an equipment safety guard...creates a rebuttable presumption that the removal...was committed with intent to injure...
“Equipment Safety Guard” was not defined within the statute.
Since the passage of the statute, a few courts have addressed the issue of equipment safety guards. The Sixth Ohio District Court of Appeals previously determined that a jog control and emergency stop cable were not equipment safety guards. Fickle vs. Conversion Techs. Int’l Inc. In Hewitt vs. L.E. Myers Company, the Eighth District Court of Appeals determined that protective rubber gloves and sleeves worn by electrical workers were equipment safety guards.
The Sixth District again addressed the issue in Beyer vs. Rieter Automotive North American, Inc., 2012-Ohio 2807. In Beyer, Plaintiff was asserting a claim for silicosis, a progressive lung disease which allegedly develops as a result of breathing dust particles of silica. Plaintiff alleged that his inhalation of silica during the course of 30 years while working at Defendant’s plant led to his disease. Plaintiff further alleged that while dust masks were sometimes available, at other times the masks were locked up, thus preventing the employees from using the masks while completing required jobs that involve breathing in silica dust.
The Sixth District Court of Appeals reviewed the above cited cases and concurred with the Court in Hewitt, which found that the General Assembly chose not to limit the definition of a safety guard to items attached to machinery. The Court in Hewitt determined that an interpretation that limits “safety guard” to equipment attached to a machine or press would exclude a large class of employees from potential claims under the statute.
The Sixth District modified its decision in Fickle, and held that R.C. 2745.01(c) includes free standing equipment such as face masks within the scope of “equipment safety guard.” Accordingly, the Court determined that there was sufficient evidence to establish a rebuttable presumption that the failure to provide safety masks showed a deliberate intent to injure an employee.
The Beyer decision shows a trend of the Appellate courts to expand the circumstances that create a rebuttable presumption of deliberate intent under the statute. Thus far, the Ohio Supreme Court has not provide a definitive definition of “safety guard” and the application of the rebuttable presumption. It would appear that the Appellate Courts will continue to expand the definition until the Supreme Court says otherwise.
If you wish a full copy of the decision or have any other questions regarding employee/employer liability, please contact any one of our Employee Intentional Tort Practice Group Members.