November 20, 2012, the Ohio Supreme Court handed down a decision in the case of Hewitt v. L.E. Myers Co., Slip Opinion No. 2012-Ohio-5317. This case arose after Mr. Hewitt was severely injured after being exposed to energized electrical lines. Mr. Hewitt was in a bucket by himself and was not using protective gloves or sleeves. According to Mr. Hewitt, his foreman told him he did not need to use those items since the lines upon which he was working were de-energized.
After filing a workers' compensation claim and an application for the violation of a specific safety requirement, Mr. Hewitt filed an intentional tort claim against L.E. Myers. Mr. Hewitt alleged that being told by his employer that he did not need to wear the rubberized gloves and sleeves amounted to a "deliberate removal of an equipment safety guard," which is one of the statutory means for finding an intentional tort under Ohio Revised Code § 2745.01.
The case was tried to a jury, which returned a verdict in favor of Mr. Hewitt. L.E. Myers appealed the decision of the trial court to the Eighth District Court of Appeals, which affirmed the trial court's decision and found that the protective rubber gloves and sleeves were equipment safety guards, as defined under Ohio Revised Code § 2745.01(C).
L.E. Myers appealed the case to the Ohio Supreme Court. There, the employer argued that equipment safety guards are strictly items attached to machinery that protect against such things as a pinch point. The Supreme Court reversed the Eighth District’s ruling and found in its Syllabus:
"Equipment safety guard" means a device designed to shield the operator from exposure to an 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.
The majority of the Court in a decision authored by Justice Stratton went on to find that:
Protective rubber gloves and sleeves are personal items that an employee controls and do not constitute an "equipment safety guard" for purposes of Ohio Revised Code § 2745.01(C). An employee's failure to use them or an employer's failure to require an employee to use them does not constitute the deliberate removal by an employer of an equipment safety guard.
Taken together, these two quotations not only uphold the statute but also limit an injured worker's ability to sustain an intentional tort claim when there is no showing of a deliberate intention by the employer to remove a safety guard from a piece of equipment. This particular decision is a good one for employers throughout the state of Ohio.