Under Ohio law, in addition to filing a workers’ compensation claim, an injured employee can also sue the employer for an intentional tort claim. To prevail under intentional tort, the employee must establish that the employer “deliberately intended” to injure the employee. One way of establishing such “deliberate intent” under the intentional tort statute is by proving that the company “deliberately removed an equipment safety guard” which caused the employee’s injury. The Ohio Supreme Court recently considered two cases- both originating in Cuyahoga County- construing what constitutes the deliberate removal of an “equipment safety guard.”
The first case involved a utility lineman who sustained severe burns while replacing old power lines. Utility linemen for the company were required to wear protective rubber gloves and sleeves to guard against electrical shock. The injured lineman was an apprentice and was unaware of this requirement. As a result, the lineman did not use the protective equipment. The lineman filed a workers’ compensation claim and an intentional tort claim. The lineman argued that the company’s failure to supply him with the necessary protective equipment constituted the “deliberate removal” of an “equipment safety guard” in violation of the intentional tort statute.
The second case involved a warehouse employee who was injured when a co-worker operating a side loader (similar to a tow motor) struck him. The area of the factory in which the injured employee was operating was dimly lit. The employee filed a workers’ compensation claim and an intentional tort claim. As grounds for his intentional tort case, the employee cited three safety gaps by the company any one of which he argued could have prevented his injury: failure to provide employees working in the aisles with a reflective vest; failure to require that safety cones be placed in the aisles where employees are working; and failure to provide expandable gates to prevent machinery from entering aisles where employees were working. Indeed, as the employee pointed out, the potential for injury from the absence of such safety mechanisms was so great that the company had been warned only days before the employee’s accident of the danger to workers in the aisles. Consequently, the employee asserted, the company’s failure to take such precautionary safety measures made his injury highly foreseeable and was therefore tantamount to the “deliberate removal” of an “equipment safety guard.”
The Ohio Supreme Court rejected both employees’ arguments. In both cases, the Court found that “removal of an equipment safety guard” means just that: the removal, either by lifting, pushing aside, taking off, or otherwise physically eliminating such a guard. The Court stated that protective gloves and sleeves are personal items the employee controls and are not considered “an equipment safety guard.” In the second case involving the injured warehouse employee, the Court found that no evidence existed that the company “deliberately intended” to injure the employee when they assigned him to work in the aisle. The Court observed that, although the company may have placed the employee in a potentially dangerous situation, this circumstance, by itself, was insufficient to constitute a “deliberate intent” to harm the employee.
Both cases reaffirm the very high standard of proof involved in intentional tort cases. Such a high bar, in the court’s view, in no way deprives injured employees of just and fair compensation for their injuries. An employee sustaining a work-related injury is always entitled to workers’ compensation. While workplace accidents are unfortunate, as these two cases remind us, absent extremely egregious circumstances, companies ordinarily will not be penalized for such unintended consequences at the job site.
While workplace accidents are unfortunate, as these two cases remind us, absent extremely egregious circumstances, companies ordinarily will not be penalized for such unintended consequences at the job site.
Steven P. Dlott is a Certified Specialist in Workers’ Compensation Law and heads the Workers’ Compensation Department at Meyers, Roman, Friedberg & Lewis. Steve is also a member of the Labor and Employment practice group which has extensive experience in defending employers in intentional tort cases. Steve can be contacted at (216) 831-0042 or firstname.lastname@example.org