In a decision recently issued by the Eighth District Court of Appeals (Cuyahoga County), Hewitt v. L.E. Myers Co., 2011-Ohio-5413, the court upheld a lower court’s decision and a jury finding under the “new” employment intentional tort statute, R.C. §2745.01.
The decision is interesting as, rather than attempting to establish a “deliberate intent” intentional tort, the Plaintiff took the tact of establishing the case by use of the third part of the statute. Part C sets forth a “rebuttable presumption” of an employer intentional tort when an employer has removed an “equipment safety guard”.
In the case, the Plaintiff equated the rubber gloves (for an electrician) into an “equipment safety guard” as is called for in the Statute. The plaintiff was a second-step apprentice lineman who was electrocuted when his supervisor sent him (alone) into the bucket and told him that he “shouldn’t need no rubber gloves” when he went up to work on the lines.
The case shows the drafting problems that occur in the Ohio Legislature. For years the Legislature has been trying to draft an employment intentional tort statute that would survive Constitutional muster and other attacks. With R.C. §2745.01, they thought they had finally done just that – but they were likely wrong. The Legislature failed to provide a definition of the term “equipment safety guard” – either in the history, legislative notes or otherwise. This loophole will allow the courts to expand exactly what an “equipment safety guard” is – so as to likely eviscerate the initial two prongs of the deliberate intent statute.
Previously, the Sixth District Court of Appeals (Toledo) tried to give a limited expansion of the term, and stated – “ ‘equipment safety guard’ would be commonly understood to mean a device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the machine.” (emphasis added) The Eighth District Court of Appeals in Hewitt thought that definition (which with “commonly understood” and “aspect” within it could mean virtually ANYTHING) was too “limited.”
So far, Courts have found that an employer not providing gloves, long sleeve shirts, or properly programmed machines, constitute evidence of a “deliberate removal of an equipment safety guard” to provide the rebuttable presumption under the statute.
Ultimately, this expansion and interpretation will get to the Ohio Supreme Court. However, without a legislative underpinning it will be hard for that Court to jump through the necessary legal hoops to stop this court and case-law expansion of the statute. As such, the Legislature would be wise to get their drafting pens out and start re-writing again.
