THE GLOVES ARE COMING OFF: OHIO SUPREME COURT HOLDS IN HEWITT V. THE L.E. MYERS CO. THAT PERSONAL SAFETY EQUIPMENT NOT A “SAFETY GUARD” FOR PURPOSES OF DELIBERATE INTENT ACTIONS

Recently, the Ohio Supreme Court decided a key case regarding a statutory exemption to workers’ compensation laws for so-called “deliberate intent” actions.  The Ohio statute in question allows an individual injured on the job to recover under a tort theory of liability if the individual can prove the employer committed a tortious act with the intent to injure the worker or with the belief the injury was substantially certain to occur.  This can include removing a safety guard or precaution from the workplace, which creates a rebuttable presumption of intent to injure.

In Hewitt v. The L.E. Myers Co., et al., the plaintiff was working as a lineman for the defendant, an electrical contractor, doing primarily utility work.  Mr. Hewitt was assigned to work on a new power line and was allegedly told by a supervisor that he did not need to don protective rubber gloves to work on the line as it was deenergized.  As he was working on the deenergized line, Mr. Hewitt’s hand came into contact with an energized line, and he was severely burned.

Hewitt brought suit, alleging that L.E. Myers knew with substantial certainty that he would be injured working near power lines without the requisite rubber gloves.  Further, he stated that due to the supervisor’s advice, L.E. Myers “in effect removed the protective rubber gloves and sleeves that were safety guards creating a barrier between him and the electrical current.”  At trial, Mr. Hewitt prevailed.  Though the jury found there was not enough evidence to prove an intent to harm on behalf of L.E. Myers, the instruction that the rubber gloves were not needed did function as a de facto removal of a safety guard under the applicable statute.  The intermediate appellate court affirmed the trial court’s ruling, noting that the gloves were a safety guard under the statute and that L.E. Myers had failed to proffer any evidence to rebut the presumption of an intent to injure.

In a favorable ruling to employers, the Ohio Supreme Court disagreed and overturned the decision.  Noting earlier decisions by various Ohio District Courts of Appeal, the Ohio Supreme Court held that the gloves were not properly classified as a safety guard under the statute.  According to the court, to construe the term broadly would be to ignore “not only the meaning of the words, but the [Ohio legislature’s] intent to restrict liability for intentional torts.”  The term was not meant to include “free-standing items that serve as physical barriers between the employee and potential exposure to injury,” but is aimed at preventing the removal of parts of equipment that are designed to prevent injury to the operator from the equipment itself.  Furthermore, the “deliberate removal” of a safety guard was not satisfied by the mere suggestion of a supervisor not to use personal safety equipment over which the individual employee, not the employer, exercises ultimate control.  

While the Ohio Supreme Court chose to take a narrow view of the issue of “safety guards” and the scope of employer liability for workplace injuries, other jurisdictions that have similar laws, including West Virginia, have not been so inclined.  Though obvious, it is important to encourage employees to take any and all safety precautions and to follow applicable industry safety standards to shield your company from liability in workplace injury scenarios.

Daniel Fassio focuses his practice in the area of labor and employment law. He has experience in the defense of clients involving employment and workplace injury matters including claims under Title VII, Title IX, FMLA,
 
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