Grandfather Clause does not Apply to Moving Vehicle
State, ex rel. Colliver v. Indus. Comm. (2/17/99), 84 Ohio St.3d 476.
Issue: Did the Commission properly apply a grandfather clause which applies to “installations” or “constructions” to deny a VSSR claim involving a moving vehicle?
Background: Colliver was killed when the braking system of a coil tractor failed, causing it to strike one of two large steel coils and pin Colliver between the coils. The employer bought the tractor in 1968. The widow’s death claim was allowed. She filed a VSSR claim based on several 1986 safety regulations in effect on the date of accident.
The Commission denied the VSSR on the basis that the grandfather clause for constructions or installations applied. Since no safety regulation existed in 1968, the Commission found that no safety violation occurred. The Court of Appeals denied mandamus on the basis that the date a machine is placed in service controls what safety code applies.
Decision: Ohio Supreme Court denies mandamus.
The Court observes that the safety code does not define “installations” or “constructions.” The plain meaning of those words means “something that can be installed or affixed to a structure. Vehicles are generally not thought of as having been “installed or constructed.” The Court rules that a coil tractor is not an installation or construction and not subject to the grandfather clause.
However, the Court determines that R.C. 4121-5-13(F)(1)(g) [employees shall not be required to operate any truck that is not equipped with an adequate, properly maintained brake system] does not apply because that section is designed to protect the driver or operator, not bystanders or other employees.
The Court also found that Carr, the maintenance person testing the vehicle, was not “operating the vehicle. His only purpose was to test the brakes.” The Court concludes that R.C. 4121:1-5-5-13(F)(1)(h) [only employees who have been trained and authorized by their employer shall be required to operate a powered industrial truck], does not apply because the maintenance person was not “operating” the vehicle but merely “testing the brakes.”
Editor’s Comment: Is “testing” included within “operating”? If Carr, the maintenance person, had been hurt, the safety code would the safety code not apply to him because he was “testing” the vehicle? Isn’t he driving, or operating, the vehicle when he is testing it?
What kind of safety code are we dealing with? Is it too much to believe that the safety code exists to prevent accidents and applies for the benefit of any employee hurt by the violation?