Supreme Court of Ohio Defines Safety Guard: Rules Against Injured Worker

Apprentice Lineman Suffers Injury

In 2006, Larry Hewitt worked as an apprentice lineman for L.E. Myers Co., an electrical-utility construction contractor. He was assigned to replace old electrical power lines.

On June 14, 2006, his specific job was to tie in a new, de-energized power line. According to 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 contacted an energized line, causing a shock and severe burns.

Legal Actions Following the Accident

Mr. Hewitt received workers’ compensation benefits. He also filed a claim alleging a violation of a specific safety requirement, which was settled.

Additionally, Mr. Hewitt filed a claim alleging a workplace intentional tort in violation of R.C. 2745.01 and common law.

Proving an Intentional Tort

Proving a workplace intentional tort is challenging. One must demonstrate a direct intent to cause harm.

Under R.C. 2745.01(C), the deliberate removal of an equipment safety guard by an employer creates a rebuttable presumption of intent to injure if an injury or occupational disease directly results.

“[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.”

Supreme Court of Ohio's Decision

Mr. Hewitt argued that the protective rubber gloves constituted “an equipment safety guard.” The Supreme Court of Ohio’s majority disagreed.

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. The “deliberate removal” of such a guard occurs when an employer makes a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard.

The Court further decided that rubber gloves and sleeves are “personal items” that an employee controls. They do not constitute “an equipment safety guard” for purposes of R.C 2745.01(C).

Dissenting Opinion on Safety Guards

This author disagrees with the decision, as did Justice Pfeifer, who wrote a scathing dissent. Justice Pfeifer points out that, under the majority decision, employers are now free to remove “kill switches without troubling over R.C. 2745.01(C).”

Furthermore, helmets, facemasks, and visors will also not be considered “equipment safety guards.” Essentially, the majority opinion reads words into the statute. It changed “equipment safety guard” into “a safety guard attached to equipment.”

This is not the definition the statute provides. The General Assembly could have easily provided such a definition if it had intended to do so.

To view the full decision, click here.

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