VSSR Violation Where Employer Does Not Make Equipment Available

State, ex rel. Greco v. Conrad (3/7/01), 91 Ohio St.3d 105:

VSSR Violation Where Employer Does Not Make Equipment Available

SITUATION: Greco was assigned to clean the gutters of a church. He did so by leaning over the edge of the roof and removing debris by hand. He was not wearing a safety belt or line.

He fell from the roof and was severely injured. The distance from the top edge of the gutter to the ground was approximately 24 feet and 11 inches.

I.C. denied VSSR, finding that since the distance was less than 25 feet above the ground, O.A.C. 4121:1-3-03(L) was inapplicable.

Also, I.C. found that photographs taken by the investigator show the safety equipment was soiled from usage and therefore the employer is in compliance with O.A.C. 4121:1-1-3-03(J).

Greco filed a mandamus. Court of Appeals denied. Greco appealed to the Supreme Court.

STATUS: Supreme Court finds (5-2) a violation of 4121:1-3-03(J)(1). This provision requires lifelines, safety belts and lanyards to be provided by the employer. All parties agree the equipment was not at the accident/job site. "Provided" is defined in the code as "to make available." "Availability" was found based on pictures showing soiled equipment in the employer's storeroom and invoices for purchase of safety equipment. Court is troubled by equating possession with availability.

The I.C. points to soilage on the equipment as evidence of use, and therefore, accessibility. Court says flaw in this logic is that the photos were taken fourteen months after the accident. The soilage could have occurred since the accident. In addition, the fact that there are equipment purchase invoices before the date of the accident only establishes that the employer owned some safety equipment on the date of injury, not that it was available.

Court finds I.C.'s denial of VSSR was not based on "some evidence" of equipment availability on the date of injury and finds that I.C. abused its discretion in finding no violation of O.A.C. 4121:1-3-03(J)(1). Court finds analysis of O.A.C. 4121:1-3-03(L)(1) is unnecessary because of the violation of O.A.C. 4121:1-3-03(J)(1).

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