On November 20, 2012, the Ohio Supreme Court issued an opinion in Hewitt v. L.E. Myers Company (2012-Ohio-5317) that substantially limits the definition of “deliberate removal of an equipment safety guard” necessary to create a rebuttable presumption of intent under Ohio’s Employer Intentional Tort Statute, R.C. 2745.01(C). Under Ohio law, employers complying with the state’s workers’ compensation laws are afforded immunity against suits brought by employees for injuries sustained in the course of employment. An exception to this immunity arises when an employee is injured as a result of deliberate, intentional conduct on the part of employer to cause such injury. The Ohio Supreme Court previously recognized in Stetter v. R.J. Corman Derailment Servs., L.L.C. (2010-Ohio-1029), and Kaminski v. Metal & Wire Prods. Co., (2010-Ohio-1027) that the General Assembly, in enacting the current version of R.C. 2745.01, intended to restrict an employer’s liability for intentional tort claims by permitting recovery only when an employer acts with specific, deliberate intent.
Employees unable to meet this high standard of proving deliberate intent often attempt to proceed under R.C. 2745.01(C), which creates a rebuttable presumption of deliberate intent, where the employee can show that he or she sustained injuries as a result of the deliberate removal of an equipment safety guard. In Hewitt, the injured employee argued that the employer deliberately removed an equipment safety guard by failing to instruct him to wear protective rubber gloves and sleeves while working near energized electric lines. The Eighth District Court of Appeals accepted this broadened definition of “equipment safety guard,” construing this phrase to include freestanding items of personal protective equipment.
In the Hewitt decision, the Ohio Supreme Court rejected this attempt to broaden the scope of R.C. 2745.01(C), conclusively stating that “‘equipment safety guard‘ means a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” Moreover, the Court limited the definition of “deliberate removal” as used in the statute to mean “a deliberate decision to lift, push aside, take off, or otherwise eliminate that guard.”
In finding that the phrase “deliberate removal of an equipment safety guard” does not encompass the deliberate removal of any safety-related device, the Court explained as follows:
“To construe ‘equipment safety guard’ to include any generic safety-related item ignores not only the meaning of the words used but also the General Assembly’s intent to restrict liability for intentional torts. * * *Free-standing items that serve as physical barriers between the employee and potential exposure to injury, such as rubber gloves and sleeves, are not “an equipment safety guard” for purposes of R.C. 2745.01(C). Instead, rubber gloves and sleeves are personal protective items that the employee controls.”
The Supreme Court further limited the definition of “deliberate removal” to an employer’s “deliberate decision to lift, push aside, take off, or otherwise eliminate that guard from the machine.” Thus, an employer’s failure to instruct an employer to wear protective items does not amount to a deliberate removal of an equipment safety guard within the meaning of R.C. 2745.01(C) so as to create a rebuttable presumption of intent.
The Court’s decision brings the definition of “deliberate removal of equipment safety guard” back in line with the intent of the General Assembly in enacting R.C. 2745.01 limiting recovery for employer intentional tort only to those instances where an employer acts with specific intent to cause an injury.