The employer intentional tort won’t die. Despite the Ohio Supreme Court’s repeated attempts to restrict employers’ liability for these claims, courts continue to find new and creative ways to expand Ohio’s intentional tort statute.

The latest case comes from the Sixth District Court of Appeals. In Pixley v. Pro-Pak Indus., Inc., the plaintiff worked in the maintenance department of a company that manufactured containers, boxes and packaging materials. On the day of his injury, the plaintiff was examining a malfunctioning motor on one of the conveyer lines. At the same time, another employee was operating a transfer car, which is a vehicle that loads and transports product between conveyer lines. The employee accidentally drove the transfer car into the plaintiff, pinning him between the car and the conveyor and severely injuring the plaintiff’s leg.

The plaintiff commenced an intentional tort claim against his employer under O.R.C. 2745.01. He relied on part (C) of the statute, which provides for a rebuttable presumption of intent to injure if the employer deliberately removes an equipment safety guard. Plaintiff argued that the employer had deliberately bypassed the proximity switch of the transfer car’s safety bumper. This bumper is designed to compress when force is applied and shut off power to the transfer car’s motor.

The employer filed for summary judgment on the grounds that the bumper was not an equipment safety guard. In Hewitt v. L.E. Myers Co., the Ohio Supreme Court defined an “equipment safety guard” as “a device designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” The employer argued that the safety bumper was not an equipment safety guard because it was not designed to shield the operator from injury. Further, the plaintiff was not operating the transfer car at the time of his injury.

The trial court agreed with the employer and granted the motion, but the Sixth District reversed and remanded. The court stated that the definition of an equipment safety guard should not be limited to protecting only operators. With surprising boldness, the court rewrote the Supreme Court’s definition in Hewitt and defined an equipment safety guard as “a device designed to shield the employee from exposure to or injury by a dangerous aspect of the equipment.” The court concluded that the safety bumper on the transfer car was clearly designed to protect employees from a dangerous aspect of the equipment. Therefore, the court concluded that summary judgment in favor of the employer was improper because a genuine issue of material fact existed as to whether the employer deliberately removed an equipment safety guard.

This decision should be reversed. The Sixth District ignored the language of the Hewitt opinion and wrote a definition of equipment safety guard that the court liked better. The court also ignored the General Assembly’s decision to restrict liability for intentional torts, as the Supreme Court repeatedly emphasized in Hewitt, Houdek v. ThyssenKrupp Materials, Kaminski v. Metal & Wire Prods.

The Supreme Court has not yet decided whether it will review Pixley v. Pro-Pak Indus., Inc. It is possible that the court will decline to hear the case because it is suffering from employer intentional tort fatigue, having decided several major cases interpreting the statute over the last few years. If the Court decides to hear the case, it will almost certainly reverse. We will keep you updated regarding the Court’s decision and other development in this forever uncertain area of law.