Workers Compensation Update
Further Limitations Recognized in Employer Intentional Tort Claims
An Ohio appellate court recently affirmed a more restrictive definition of an “equipment safety guard” in the context of an intentional tort suit in McQuillen v. Feecorp Industrial Services. Ohio’s Intentional Tort Statute, Ohio Revised Code section 2745.01, allows an employee to recover economic and noneconomic damages by showing the employer committed a tortious act with the intent to injure or with the belief that the injury was substantially certain to occur. “Substantially certain” is defined as a specific or deliberate intent to cause injury. R.C. § 2745.01(B). A rebuttable presumption is created in favor of the employee if the employer deliberately removed an equipment safety guard or deliberately misrepresented a toxic or hazardous substance. R.C. § 2745.01(C). The legislature has not defined an “equipment safety guard” or “deliberate removal” for purposes of R.C. § 2745.01(C). Ohio Courts, interpreting the statute, have continually limited the meaning of an “equipment safety guard”, which has in turn restricted employee’s recovery in employer intentional tort claims.
The Ohio Supreme Court adopted the Sixth Appellate District’s definition of an “equipment safety guard” as a “device that is designed to shield the operator from exposure to or injury by a dangerous aspect of the equipment.” Fickle v. Conversion Technologies International. In a subsequent decision, Hewitt v. L.E. Myers Co., the Court further elaborated that any generic safety-related item will not be considered as an “equipment safety guard.”
Following that decision, the Fifth Appellate District, in Beary v. Larry Murphy Dump Truck Serv., Inc., narrowly construed the definition of an “equipment safety guard” when it determined that a backup alarm on a Bobcat loader vehicle, which was not properly sounding, was not an “equipment safety guard” for purposes of R.C. § 2745.01(C). “While the backup alarm may make the skid street safer, it does not shield the operator or a bystander from exposure to or injury by a dangerous aspect of the skid steer.”
Recently, the Fifth Appellate District, in McQuillen v. Feecorp Industrial Services, once again further limited the definition of an “equipment safety guard.” The court analyzed whether a lanyard-assisted “safety T” (a device that can be installed onto a vacuum hose at a point within 50 feet of the opening that would allow a user to automatically shut off the hose) was an “equipment safety guard.” The court compared the “safety T” to a remote cut-off switch, which is often found connected to various types of industrial machines. The court found that the mere existence of the “safety T” does not shield the operating employee from injury but rather, the operating employee’s action to engage the “safety T” is what provides a safety shield. The court held that the “safety T” in question did not constitute an “equipment safety guard” and therefore, plaintiff was unable to establish a rebuttable presumption of an intentional tort.
It is worth noting that Judge Hoffman’s dissenting opinion in McQuillen identifies that the appellate court’s interpretation of an “equipment safety guard” was “overly restrictive” that the use of the term “shield” is a verb, not a noun and “to shield” means “to protect from.” Following this reasoning, Judge Hoffman stated that the operating employee’s “need to take a proactive step to engage the safety T on an as-needed basis does nothing to detract from its intended purpose to shield the operator from injury.”
Despite these additional restrictions that Ohio Courts have recognized in employer intentional torts, employers should still take precaution to guard against the possibility of these claims. Employers should train their employees about the importance of safety guards and the dangers of toxic and hazardous substances, as well as have a system in place to inspect all equipment to ensure that safety guards are in the proper place.
For more information on this and other matters, please contact Mansour Gavin’s Labor and Employment Practice Group.