The Supreme Court of Ohio ruled today that a state law that allows an injured worker to sue his or her employer if the employer “deliberately removed an equipment safety guard” does not apply to a case in which an electric utility worker was injured after his supervisor allegedly told him it was unnecessary to wear  protective rubber gloves or sleeves to perform the work assignment that resulted in his injury.

The court’s 6-1 decision, authored by Justice Evelyn Lundberg Stratton, reversed a ruling by the Eighth District Court of Appeals.

The case involved an apprentice electric lineman, Larry Hewitt, who was injured in the course of his employment with the L.E. Myers Company, an electric utility construction firm.  At the time of his injury, Hewitt was working alone in an overhead bucket lift, handling a new, unenergized power line that was to be “tied in” to a nearby energized line.  When a co-worker who was supervising Hewitt’s work from the ground shouted something up to him, Hewitt, who was working without protective rubber gloves or sleeves, turned in the direction of the co-worker and accidentally brought the unenergized wire he was holding into contact with an energized line, resulting in an electric shock that caused severe burns.

Hewitt applied for and received workers’ compensation benefits for his injuries. He also filed suit against L.E. Myers alleging a “workplace intentional tort” under R.C. 2745.01, a provision of state law that allows a worker who is injured on the job to recover civil damages from his employer if the worker can show that the safety hazard that caused injury was so clear that injury was “substantially certain” to occur.  The statute includes specific language that there is a rebuttable presumption of intent to cause injury if it is shown that the employer “intentionally removed an equipment safety guard.”

In his complaint, Hewitt alleged that he was working without rubber gloves or sleeves at the time he was injured because the co-worker who was supervising him that day had told him those safety measures were unnecessary because the line he would be handling was unenergized.  He further alleged that L.E. Myers knew with substantial certainty that he would be injured when working alone in an elevated lift bucket near energized high-voltage power lines without the use of protective rubber gloves and sleeves, and argued that L.E. Myers had in effect removed the protective rubber gloves and sleeves that were safety guards creating a barrier between him and the electrical current. 

The case proceeded to a jury trial.  At the conclusion of the plaintiff’s case, the court granted Myers’ motion for a directed verdict that there was insufficient evidence to establish a direct intent to cause injury to Hewitt.  Accordingly, the court ruled that Hewitt could establish liability only under R.C. 2745.01(C), the section of the intentional tort law that creates a presumption of intent to injure based on an employer’s deliberate removal of an equipment safety guard.

The jury returned a verdict in favor of Hewitt. The court overruled Myers’ motion for judgment notwithstanding the verdict.

Myers appealed the court’s denial of a directed verdict and judgment notwithstanding the verdict.  The court of appeals affirmed the trial court’s actions. The appellate panel reasoned that the protective rubber gloves and sleeves were equipment safety guards within the meaning of R.C. 2745.01(C), and that the decision by Hewitt’s supervisor to place Hewitt alone in an elevated bucket close to energized wires without requiring him to wear protective rubber groves or sleeves amounted to the deliberate removal of an equipment safety guard.

Myers sought and was granted Supreme Court review of the Eighth District’s decision.

In today’s decision, Justice Stratton disagreed with the Eighth District’s interpretation of R.C. 2745.01(C) and instead cited with approval Fickle v. Conversation Technologies International, a 2011 decision of the Sixth District Court of Appeals.

Justice Stratton wrote: “Fickle rejected the argument that ‘equipment safety guard’ included ‘any device designed to prevent injury or to reduce the seriousness of injury.’ ...  ‘The General Assembly did not make the presumption applicable upon the deliberate removal of any safety-related device, but only of an equipment safety guard, and we may not add words to an unambiguous statute under the guise of interpretation.’ Thus, Fickle defined ‘equipment safety guard’ as a ‘device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.’  ...  Other appellate districts in this state have similarly construed this phrase.”

“The court below did not agree that the ‘safety guard’ must be attached to machinery. ... We do not agree.  To construe ‘equipment safety guard’ to include any generic safety-related item ignores not only the meaning of the words used but also the General Assembly’s intent to restrict liability for intentional torts. ... Free-standing items that serve as physical barriers between the employee and potential exposure to injury, such as rubber gloves and sleeves, are not ‘an equipment safety guard’ for purposes of R.C. 2745.01(C).  Instead, rubber gloves and sleeves are personal protective items that the employee controls. We adopt the definition in Fickle and hold that as used in R.C. 2745.01(C), ‘equipment safety guard’ means ‘a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.’

With regard to the proper interpretation of the statutory language addressing the “deliberate removal” of an equipment safety guard, Justice Stratton also disagreed with the Eighth District’s analysis.  She wrote: “(W)e hold that the ‘deliberate removal’ of an equipment safety guard occurs when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine. Here, the employer’s failure to instruct Hewitt to wear protective items such as rubber gloves and sleeves and requiring Hewitt to work alone in an elevated bucket do not amount to the deliberate removal of an equipment safety guard within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of intent.” 

Justice Stratton’s opinion was joined by Justices Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.  Chief Justice Maureen O’Connor and Yvette McGee Brown concurred in judgment only.

Justice Paul E. Pfeifer entered a dissent stating that in his view if the legislature intended to limit the term “equipment safety guard” as used in the intentional tort statute to safety guards that are “attached to equipment,” it could easily have included those words in the statute.  By adopting what he described as a “constrictive interpretation” of the actual statutory language, Justice Pfeifer stated that today’s decision will allow employers to remove, disable or otherwise eliminate many workplace safety devices without being held legally responsible for the worker injuries caused by their actions.

He wrote: “One example of an ‘equipment safety guard’ the removal of which should give rise to a presumption to injure is a kill switch.  Most dangerous machines have them. Hitherto, most reasonable people would have thought that removing a kill switch would give rise to a rebuttable presumption of intent to injure. Not anymore. Employers are now free to remove kill switches without troubling over R.C. 2745.01(C).  Helmets, facemasks, and visors are other examples of equipment used as a safety guard, the removal of which will no longer lead to a rebuttable presumption of intent to injure. Governors, which prevent certain machines from operating too quickly, may now be removed without concern that injuries that result will give rise to a rebuttable presumption pursuant to R.C. 2745.01(C).  None of these equipment safety guards fit within the majority opinion’s draconian interpretation of R.C. 2745.01(C).  The scope of the majority opinion is staggering and dangerous for employees.”

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

2011-2013. Hewitt v. L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317.
Cuyahoga App. No. 96138, 2011-Ohio-5413.  Judgment reversed.
Lundberg Stratton, O’Donnell, Lanzinger, and Cupp, JJ., concur.
O’Connor, C.J., and McGee Brown, J., concur in judgment only.
Pfeifer, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5317.pdf

View oral argument video of this case.