On November 20, 2012, the Supreme Court handed down a merit decision in Hewitt v. L.E. Myers Co. 2012-Ohio-5317.  The case was argued September 25, 2012.  In a 6-1 decision written by Justice Stratton, the Court defined “equipment safety guard” as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” In light of this definition, the plaintiff lost his employer intentional tort case. Chief Justice O’Connor and Justice McGee Brown concurred in judgment only.  Justice Pfeifer dissented. Read the oral argument preview of this case here and the analysis of that argument here.

Pertinent Statutes and Case Law

2745.01 Liability of employer for intentional tort – intent to injure required – exceptions.

R.C. 2745.01(A)

In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.

R.C. 2745.01(B)

As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.

R.C.2745.01 (C)

Deliberate removal by an employer of an equipment safety guard or deliberate misrepresentation of a toxic or hazardous substance creates a rebuttable presumption that the removal or misrepresentation was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.

Fickle v. Conversion Techs. Int’l, Inc.,2011-Ohio-2960 (6^th Dist.)

Sixth District Court of Appeals defines “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.”

Kaminski v. Metal & Wire Prods. Co., 2010-Ohio-1027 and Stetter v. R.J. Corman Derailment Servs., L.L.C., 2010-Ohio-1029

Companion cases upholding the constitutionality of the current legislative restrictions on employer workplace intentional tort liability.  In dissent in these cases, Justice Pfeifer states his view that this tort has been effectively killed off.

Case Background

Larry Hewitt was an apprentice lineman for L.E. Myers Company, an electrical-utility construction contractor.  On the day in question he was assigned to a crew replacing old electric power lines. His job that day was to tie in the new power line, which was de-energized. Workers were required by company policy to wear protective rubber gloves and sleeves when doing this work, in case the lines became energized.  Hewitt didn’t wear his that day.  The reasons for this were disputed.  As Hewitt turned toward the ground in response to a shout from his supervisor, the wire in his right hand came into contact with an energized line, and he was severely burned.

Jury Trial and Appeal

Hewitt filed an employer intentional tort claim against L.E.Myers.  At the end of Hewitt’s case, the trial judge granted L.E. Myers’ motion for a directed verdict in part, finding Hewitt failed to prove direct intent to harm as required in R.C. 2745.01(A) and (B), and thus limited Hewitt’s theory of recovery to R.C. 2745.01(C). Under that section, an employer’s deliberate removal of an equipment safety guard creates a rebuttable presumption of intent to injure. The jury returned a verdict in Hewitt’s favor. After the verdict, the trial court denied the company’s motion for a j.n.o.v.

The Eighth District Court of Appeals affirmed, finding that the protective rubber gloves and sleeves constituted equipment safety guards under R.C. 2745.01(C) and that the actions of company supervisors sending Hewitt into close proximity with live wires without his rubber gloves and sleeves amounted to the deliberate removal of an equipment safety guard.

In this decision, the Supreme Court reverses the Court of Appeals, agreeing with L.E. Myers that the trial court should have directed a verdict in its favor on the 2745.01(C) claim.

Dueling Definitions of Deliberate Removal by an Employer of an Equipment Safety Guard.

Deliberate removal by an employer of an equipment safety guard creates a rebuttable presumption of intent to injure under R.C. 2745.01(C).  That phrase is not defined in the statute. The Court emphatically slapped down Hewitt’s argument that those terms created a fact question for the jury.  “The interpretation of undefined terms within a statute is a question of law for the court,” Stratton wrote.

The Court disagreed with the Court of Appeals that a safety guard did not have to be attached to machinery. And the Court rejected Hewitt’s argument that the phrase should apply broadly to any safety-related item that served as a barrier to protect an employee from danger, including the rubber sleeves and gloves in this case. The Court flatly rejected this broad approach as inconsistent with the clear legislative intent to restrict employer workplace intentional torts, citing Kaminski and Stetter.

Instead, the Court agreed with L.E. Myers that an equipment safety guard means a “safety device attached to a machine that is intended to guard an employee from injury” and that “deliberate removal” occurs when “an employer makes a deliberate decision to eliminate the guard from the machine.” Meaning physically removing the guard from the equipment to which it is attached. To me, this definition of deliberate removal sounds something like malice aforethought. The Sixth District Court of Appeals came up with a similar definition in the Fickle case, which the Supreme Court approved.

So what are Rubber Gloves and Sleeves?

They aren’t safety guards.  They are “personal protective items the employee controls.” Counsel for L.E. Myers repeated this time and again during oral argument, and really stayed on message about this.

What This Means for This Case

At oral argument there was a lot of questioning, led by Justice Stratton, about what would happen in this case in the event of a reversal.  The lawyers had sharply disagreed on this point. Hewitt’s lawyer said the case would have to go back to the court of appeals to see if there was sufficient evidence to sustain the verdict on the basis of 2745.01(A) or (B),  claiming the jury was instructed on alternative grounds. No way, said L.E.Myers lawyer. The case was sent to the jury only on the presumption of intent in R.C. 2745.01(C),  and no cross appeal was taken from that decision. If the case were to be reversed, judgment must be entered for L.E. Myers. Counsel for L.E. Myers prevailed on this very important point.  The court of appeals was reversed, and the Supreme Court ordered judgment entered in favor of L.E. Myers.

Justice Pfeifer’s Dissent

Here’s the flavor:

“One of these days a company is going to surprise me and act honorably and with compassion. They are going to acknowledge their complicity in the grievous injuries suffered by their employee, they are going to adequately compensate their employee for his or her injuries, and they are going to do so without resorting to every countervailing stratagem that their high-priced counsel can devise. Today is not that day.”

Justice Pfeifer’s Definition of Equipment Safety Guard.

While Justice Pfeifer agreed that the majority definition was “plausible,” he did not agree that it was the best definition, finding it too restrictive and draconian, and “staggering and dangerous for employees.” He accused the majority of adding words to the statute, causing it now to read like this: “deliberate removal by an employer of a safety guard attached to equipment.”  But, as he notes, the statute does not say this, although it could have if that is what the legislature intended.  To him, the best definition is “equipment that is used as a safety guard.” That would clearly include the rubber gloves and sleeves in this case, noting that everyone involved knew that the use of these items would have prevented Hewitt’s injuries.

Disagreement With Majority’s Resolution of the Case

Pfeifer agreed with Hewitt’s counsel that Hewitt had sought recovery on all three prongs of R.C. 2745.01, not just R.C. 2745.01(C).  He found that the jury was instructed on specific intent and substantial certainty, as well as the rebuttable presumption in subsection (C), and received interrogatories on all theories. He chides the majority for failing to address any of this.

He would also find that even with the majority’s limitation of the case to the statutory presumption in 2745.01(C), the case should not have been decided on the basis of a directed verdict, but should have been sent back to the court of appeals to determine if there was sufficient evidence to sustain the verdict on the basis of 2745.01 (A) or (B).

Case Syllabus

As used in R.C. 2745.01(C), “equipment safety guard” means a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment, and 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.

Concluding Observations

The heyday of generous interpretations for the employee for workplace intentional torts are long gone.  I called this case as a sure reversal, probably with judgment entered for the Company.

I also wrote this after the argument:

“This Court isn’t one to get fancy with what the legislature said, and is likely to limit the meaning of “equipment safety guard” to a piece of equipment on a machine, that is deliberately removed, and to find that the safety gloves and sleeves just don’t meet the statutory definition. Justice Pfeifer will clearly dissent.”