On November 20, 2012, the Ohio Supreme Court delivered yet another blow to injured Ohioans. In Hewitt v. L.E. Myers Co., Slip Opinion No. 2012- Ohio-5317, the Court held that the term “equipment safety guard” as applied to R.C. 2745.01 “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.”
Larry Hewitt sustained a permanent injury to his right upper extremity when he was caused to come into contact with 7200 volts while only wearing leather gloves. That same day Mr. Hewitt had been ordered by his supervisor not to wear his rubber gloves and sleeves and further, the foreman testified that had Mr. Hewitt, an apprentice, failed to follow this instruction, he would have been fired. As a result of following this instruction, Mr. Hewitt has been left with complete paralysis of his right arm and a psychological condition.
While R.C. 2745.01 seemingly purports to protect injured workers, the Hewitt decision shows that the current Ohio legislature and Court will not stop until such causes of action are merely theoretical. Through reliance on Fickle v. Conversion Technologies, Internatl., Inc., 6th Dist., No. WM-10-016, 2011-Ohio-2960, the Court meanders through the decision and adds language to the statute in order to reach their ultimate conclusion that R.C. 2745.01 only applies to machines and not personal protective equipment. The Court fails to address the fact that even the Fickle court reversed their own decision after several appellate decisions relied on Fickle to grant summary judgment. See Beyer v. Rieter Automotive N. Am,. Inc., 2012-Ohio-2807, 973 N.E.2d 318 (6th Dist.).
The ultimate question remains: “What protections remain available under an employer intentional tort claim?” While the bar still awaits the interpretation of deliberate intent, the analysis of most cases will fall under the first prong of the statute – removal of an equipment safety guard. Through the Hewitt decision it is apparent that there are still cases to be won for injured workers, such as any case where:
- There is a literal removal of a safety guard from a piece of equipment;
- There is a deliberate misrepresentation of a toxic or hazardous substance;
- An employer causes a safety guard to be lifted, pushed aside, removed or otherwise eliminated;
- A safety guard has been made unavailable, such as bypassing or disabling a guard.
The grey cloud currently over intentional tort law in Ohio is not new. It has been here since 2005. However a careful examination of the cloud reveals a few holes where injured workers can still seek protection. While the hole continues to grow smaller and smaller, experienced trial attorneys like Plevin & Gallucci will continue to make sure that cases that should fit, do fit.