In 2006, Larry Hewitt was working as an apprentice lineman for L.E. Myers Co., an electrical-utility construction contractor. He was assigned to a job replacing old electrical power lines. On June 14, 2006, his specific job was to tie in a new power line, which was de-energized. Per the daily “job-briefing log” and L.E. Myers’ policy, he was required to use protective rubber gloves and sleeves in case the line became energized.
Gloves were available to Mr. Hewitt. However, he alleged that a lineman on the job told him he should not need them because the line was not energized. At some point, a wire in Hewitt’s hand came in contact with an energized line and he received a shock causing severe burns.
Mr. Hewitt received workers’ compensation benefits. He filed a claim alleging violation of a specific safety requirement, and that case was settled. Further, Mr. Hewitt filed a claim alleging a workplace intentional tort in violation of R.C. 2745.01 and common law.
Proving a workplace intentional tort is not easy. One must demonstrate a direct intent to do harm.
Under R.C. 2745.01(C), the “[d]eliberate removal by an employer of an equipment safety guard…creates a rebuttable presumption that the removal…was committed with intent to injure another if an injury or an occupational disease or condition occurs as a direct result.”
Mr. Hewitt argued that the protective rubber gloves constituted “an equipment safety guard.” The Supreme Court of Ohio’s majority disagreed. Specifically, the Supreme Court held that “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 such occurs when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard. It further decided that rubber gloves and sleeves are “personal items” that an employee controls and do not constitute “an equipment safety guard” for purposes of R.C 2745.01(C).
This author disagrees with the decision as did Justice Pfeifer, who wrote a scathing dissent. As Justice Pfeifer points out, under the majority decision employers are now free to remove “kill switches without troubling over R.C. 2745.01(C).” Further, helmets, facemasks, and visors will also not be considered “equipment safety guards.” Essentially, the majority opinion reads words into the statute. That is, it changed “equipment safety guard” into “a safety guard attached to equipment.” This is not the definition that the statute provides, and the General Assembly could have easily provided such a definition, had it intended to do so.
To view the full decision, click here.
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-Written by Andrew Tobergte