No VSSR When Decedent is Unilaterally Negligent
State, ex rel. Quality Tower Service v. Indus. Comm. (3/15/00), 88 Ohio St.3d 190.
Issue: Is an employee’s negligence a defense against a VSSR claim when the employer has complied with the safety code?
Background: Mr. Garaux was killed, and Mr. Reed was severely injured, while dismantling a two to three hundred foot communications tower for Quality Tower Service (“QTS”). Garaux and Reed were belted to a “gin pole” which is an antenna-like structure used to support tower technicians during the dismantling process. The synthetic straps suspending the structure failed and caused the gin pole, and Garaux and Reed, to fall to the ground.
Reed and Mrs. Garaux alleged that the employer committed a violation of a specific safety requirement (VSSR), claiming violation of 4121:1-3-08(G).
QTS conceded that inadequate suspension straps caused the injury and death and that the straps that were used were not properly labeled. But QTS established that Mr. Garaux had used his own ultralight straps, the manager expressly directed him to use the stronger straps, and that QTS straps were properly labeled.
QTS argued that Mr. Garaux was unilaterally negligent and his conduct caused the accident. Industrial Commission granted the VSSR award for both Garaux and Reed because inadequate suspension straps had been used to rig the gin pole. The Industrial Commission found that the safety code did not distinguish between whether equipment belonged to the company or an employee. The Industrial Commission inferred that if Garaux’s ultralight straps had been properly labeled, he likely would not have used them. The Court of Appeals agreed.
Decision: Supreme Court reverses.
The issue is whether QTS complied with the code, so that it is not responsible for the alleged VSSRs. The Court holds that QTS did comply with the Code and that Garaux unilaterally violated the rule. QTS complied with the safety code because it provided Garaux and Reed with properly marked equipment and the manager told Garaux to use the company’s equipment and not his own.
This case involved “unilateral negligence”, a defense to VSSR liability that applies only where the claimant deliberately renders an otherwise complying device nonconforming. This should not be confused with an argument that an employee negligently failed to protect himself from injury.
An employee’s negligence will not bar recovery if the employer does not comply with the code. The critical issue is whether the employer complied with the safety requirements.
It is undisputed that QTS properly labeled its straps and made adequate straps available. The Court states that the employer did all that the Code required, complied with the rule and did not commit a VSSR.