In a decision favorable to Ohio employers, the Ohio Supreme Court recently clarified the circumstances under which an employer can be found to have committed an “employment intentional tort.” The Court’s decision, in Hewitt v. L.E. Myers Co., 2012-Ohio-5317, gives valuable insight into the circumstances under which an employer can be sued by an employee outside of the normal constraints of the Ohio workers’ compensation system.

Under Ohio’s 2005 employment intentional tort statute (O.R.C 2745.01), an employer can only be found liable for an intentional tort where shown to have acted with deliberate intent to cause an injury to its employee. However, in cases where an employer deliberately removes an “equipment safety guard”, the statute creates a presumption that there was an intent to injure. It was that provision which was the critical issue in the Court’s recent decision in Hewitt.

The Plaintiff, Larry Hewitt, was working as an apprentice lineman for an electric utility construction contractor in 2006 when he was assigned the task of installing a new power line, which was de-energized, from a bucket truck. Although protective rubber gloves and sleeves were available and, according to employer, required, Hewitt claimed that a fellow lineman told him he did not need the equipment, as the new line was de-energized. Later that day, however, when Hewitt turned to listen to instructions called up to him by his supervisor, the wire in his hand contacted an energized line, resulting in an electric shock and severe burns.

After recovering workers’ compensation benefits, and settling a Violation of Specific Safety Requirement application with his employer, Hewitt filed an intentional tort lawsuit as well. Although there was no evidence of any deliberate intent to injure Hewitt, the case proceeded to the jury on the question of whether, by not requiring Hewitt to wear the protective rubber gloves and sleeves, the employer had in essence “deliberately removed an equipment safety guard.” The jury found in favor of Hewitt, and the Court of Appeals upheld the verdict.

The Ohio Supreme Court reversed the judgment, however, and vacated the award. In doing so, the Court drew a distinction between an “equipment safety guard”, such as a guard on a table saw, and “personal protective items”, like the gloves and the sleeves, which the employee controls. In addition, the Court held that while “removal” of a safety guard might encompass more than the physical removal of a guard from a piece of equipment, the term could not be stretched so far as to cover an employer’s failure to ensure that an employee is utilizing all required personal protective equipment.

The Court’s decision in Hewitt comes as welcome clarification for Ohio employers. While most people would agree with the Legislature’s intent to punish an employer who would deliberately remove a safety guard from a machine, imperiling its employees, the Court’s interpretation strikes a sensible balance: An employer will not have unanticipated liability for an “intentional” tort where an employee makes a choice not to utilize available personal protective equipment. However, the removal of an actual safety guard from a machine will continue to create potential liability under the statute. With or without this potential liability, however, it remains critical for employers to emphasize their safety programs, to protect the welfare of their employees and avoid the workers’ compensation costs and lost productivity of preventable work-related injuries.