In an early holiday present for Ohio employers, the Ohio Supreme Court significantly limited the scope of the “deliberate removal of an equipment safety guard” presumption constituting a “deliberate intent” by an employer to injure its employee as required to prove an intentional tort.  In Hewittv.L.E. Myers Company (issued on 11/20/12), the court ruled that the employer’s failure to provide personal protective equipment (PPE) neither constituted a “deliberate removal” nor involved an “equipment safety guard.”  In so holding, the court overruled the trial court and the Cuyahoga County Court of Appeals.

The case involved Larry Hewitt, an apprentice lineman working for L.E. Myers on a field crew replacing old electrical lines.  Hewitt’s testimony at trial was that he was sent up an elevated bucket without protective rubber gloves and sleeves because the line was said to be de-energized.  Hewitt nonetheless came into contact with an energized line and suffered severe electrical burns.

Hewitt sued L.E. Myers under an intentional tort cause of action.  This allows an injured employee to sue his or her employer notwithstanding workers’ compensation coverage and the receipt of benefits when the employer had a “deliberate intent” to injure its employee.  The law provides that there is a presumption of such a “deliberate intent” to injure when there is a “deliberate removal” by an employer of an equipment safety guard or a “deliberate misrepresentation” of a toxic or hazardous substance by the employer.  (For the background of applicable intentional tort law in this area, please see the Client Update on the Kaminski decision.)

The trial court applied the “deliberate intent” presumption, reasoning that the failure to provide required PPE was sufficiently similar to the removal of a safety guard to be covered by the presumption.  A jury then issued a verdict that awarded nearly $600,000 to Mr. Hewitt.  After the court of appeals affirmed, the Supreme Court accepted the case.  The decision did note that the lower courts’ findings were not consistent with a more narrow reading of the presumption taken by several other county courts of appeal.

In resolving this split between various courts of appeal, the Supreme Court held:

     ““Equipment safety guard” means a device designed to shield the operator from exposure to or 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.

     Protective rubber gloves and sleeves are personal items that an employee controls and do not constitute “an equipment safety guard” for purposes of [the presumption].  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. Consequently, [Mr. Hewitt] failed to establish a…presumption of intent [as required by the law].”

The lone dissenter (Justice Pfeiffer) complained that “[o]ne of these days a company is going to surprise me and act honorably and with compassion… today is not that day.  Even though L.E. Myers has implicitly acknowledged its complicity by firing every person involved in the incident [it]… does not have to suffer the consequences; only its apprentice does.”  The rest of Justice Pfeiffer’s dissent goes on in the same vein. 

Oral argument in the Hewitt case was heard on September 25, 2012.  In another intentional tort case also on an appeal from Cuyahoga County, Houdek v. ThyssenKrupp Materials, oral argument was heard on June 30, 2012, and yet no decision has been released.  Houdek does not involve the application of either intentional tort presumption; rather, the issue is whether summary judgment was appropriate in a case involving a “hit by forklift” injury.  Mr. Houdek alleged that, while on light duty, he was assigned tagging duties in a narrow warehouse aisle while, at the same time, another employee on a forklift was directed to retrieve materials “at maximum speed” from the same narrow aisleway.  The trial court ruled that those facts were not sufficient to show a “deliberate intent” to injure and granted summary judgment in favor of the employer.  The Cuyahoga County Court of Appeals reversed and the Ohio Supreme Court also accepted an appeal in this seemingly more straightforward case.

The Hewitt decision is good news for Ohio employers in limiting at least one of the two intentional tort presumptions to factual situations clearly within the language of the presumption.  One item of import that the Hewitt decision does not affect is that of insurance coverage.  As previously cautioned, insurers are almost universally rejecting coverage for current intentional tort cases leaving Ohio employers to defend them on their own (albeit now in a somewhat easier fashion).  A few carriers do offer “defense only” coverage (no coverage for any judgment or settlement); interested employers should contact their brokers on this point.